Brown v. Moore, 74 Mo. 633

Brown v. Moore

74 Mo. 633 | Mo. | 1881

Norton, J.

This is a suit in ejectment to recover one-fifth interest in a tract of land in Greene county. Wm. Graves was the owner and had his mansion house on the land, where he died in 1863, leaving a widow and five heirs at law". In December, 1865, the widow and four of the heirs conveyed the land to Ebenezer Phillips ; which deed was recorded the next day after its execution. Richard Graves, the other heir, was of age and living in Kansas. On the 18th day of December, 1865, and about the time he obtained his deed from Mrs. Graves and the others, Phillips conveyed by warranty deed an entire estate in the land to Wm. McKinney, which deed was on the same day placed upon record in Greene county; and McKinney immediately took possession of the land, and actually occupied and cultivated it as exclusively his own, until a short time before this suit was commenced by the plaintiff as the grantee of said Richard Graves, when he by like warranty deed sold and conveyed the entire estate in the land, to the defendant, who occupied and held the land exclusively as his own at the commencement of this suit. The suit was begun on the 16th day of October, 1877, and about two years after the death of Nancy Graves, the widow. The only defense relied upon to defeat plaintiff’s recovery was the statute of limitations. On the trial plaintiff' obtained judgment for one-fifth of the land sued for, from which defendants appeal.

The circuit court tried the case on the theory that Richard Graves had no right of entry in the land sued for till dower had been assigned to Nancy Graves, the *635widow, and that the statute of limitations did not begin to run either against Richard Graves or his grantee till snch assignment of dower was made, which, however, never was made, the said Nancy Graves having died two years before this suit was commenced. This action of the court, which defendants insist was erroneous, we think was proper. Section 2205 Revised Statutes, the same being in force when William Graves died, provides that,, “until dower be assigned, the widow may remain in and. enjoy the mansion house of her husband, and the messuages or plantation thereto belonging, without being liable to pay any rent for the same.” This statute unquestionably gave to the widow the possessory right to the whole of the land in controversy till her dower was. assigned, for the recovery of which, had she been wrested of the possession, she might have maintained ejectment under the authority of the case of Waller v. Mardus, 29 Mo. 25, in which it was held that a widow entitled to quarantine in land might maintain ejectment to recover possession of it. From this the conclusion irresistibly follows that, had Mrs. Graves remained in possession of the premises, plaintiff could not have successfully prosecuted ejectment against her till her dower had been assigned. And it also, we think, follows that plaintiff could not have maintained ejectment against any one holding under her, and to whom she had passed or transferred this possessory right till after such assignment was made. It was expressly held in the case of Miller v. Talley, 48 Mo. 503, that the quarantine right of a widow in land “is a clear statutory right, and can only be terminated by assignment of dower,” and that ejectment will lie to enforce it. And this right is capable of being assigned, and when assigned carries with it all the incidents belonging to it prior to its transfer. Jones v. Manly, 58 Mo. 509.

The mere fact that Richard Graves was willing to and did permit his mother and her grantee, she having received, a consideration for the grant or transfer, to enjoy this pos-*636sessory right, and did not terminate it by having her dower assigned, as he might have done, instead of rendering him liable to the imputation of laches, is rather to be counted “to his credit. Judgment affirmed,

in which all concur, except Ray, J., absent.