286 S.W. 385 | Mo. | 1926
Lead Opinion
This cause was ruled by this Division of this court in an opinion filed on April 13, 1925. A rehearing was granted, however, and the cause was subsequently orally argued and submitted upon supplemental briefs filed by the respective parties. After rehearing and submission, the case was re-assigned to the writer to prepare an opinion expressing the conclusions and judgment of this court. The original opinion was written by my learned brother and associate, Commissioner LINDSAY, and received the concurring votes of three of the then judges of this Division, Judge ATWOOD not sitting, because he was not a member of this court at the time the cause was originally argued and submitted. The original opinion fairly states the facts and rightly, we think, applies the law to the facts. We are still of the conclusion that the original opinion correctly ruled this appeal in so far as the homestead proper is involved, and it is therefore embodied herein and made a part of this opinion, the writer hereof confining himself solely to a discussion and ruling of the additional points raised by the respective parties upon rehearing. In our original opinion, which is adopted and made a part hereof, this court, speaking through LINDSAY, C., said:
"The plaintiffs, being in possession of certain real estate in the city of St. Louis, brought suit, setting up the provisions of Section 1311, Revised Statutes 1919, and asked for a decree vesting in them title to said real estate, by limitation, under the provisions of said section. The defendants answered, denying generally and specifically the allegations of the petition, made in conformity with said section, and by way of further defense and cross-bill pleaded that one Thomas Connelly acquired title to the premises in fee simple, in August, 1875, took possession thereof, and with his wife, Mary Connelly, occupied the same as his homestead until his death, about the year 1880; that Thomas Connelly died intestate, and had no children, and that there were no children born of the marriage of Thomas Connelly and Mary Connelly; that Mary Connelly, as the widow, was entitled to occupy said premises as a homestead during her natural life and until her death, which occurred August 22, 1912; that thereupon and thereafter the defendants, nephews and nieces, and the only heirs at law of Thomas Connelly, deceased, were entitled to the possession of the premises as tenants in common, and as such entitled to partition. The defendants prayed judgment for possession of said real estate, for the monthly rents and profits, and for a decree in partition. The reply was a general denial, followed by a plea of adverse *448 possession by plaintiffs for more than ten years, a plea that the cause of action set up by defendants did not accrue within ten years next before the commencement of the action, nor within twenty-four years before the commencement of the action, and a renewal of the plea setting up facts by which it was alleged that defendants were barred under the provisions of Section 1311. Upon the trial plaintiffs dismissed their petition and announced they would try the case, and the case proceeded, upon the cross-bill of defendants and the reply of the plaintiffs, to which defendants filed a general denial. It was shown that the property in dispute was conveyed to Thomas Connelly by a deed made June 28, 1875, executed by the Union National Bank of St. Louis, and at that time the plaintiffs admitted that by said deed he took whatever title had emanated from the Government, but counsel stated that they did not admit any common source of title. Afterward, when the deed made by Bridget Conway to plaintiffs for a part of the lot in controversy (hereinafter referred to) was offered in evidence, the following occurred:
"`MR. THOMPSON: We want to object to that deed, for this reason, your Honor, that it appears that this party had no title to the property, the grantors, legal or equitable; that the admission in this case is that the title in this property was in Thomas Connelly, and that at the time of his death he left a widow, and that the widow occupied this property as her homestead until 1912, and this deed is made in 1903.
"`THE COURT: The common source of title was already admitted.
"`MR. HILKERBAUMER: Our title is based on possession, adverse possession.
"`THE COURT: The objection will be overruled.'
"The property in dispute is a triangular piece of ground fronting on Hunt Avenue. The dwelling of Thomas Connelly was toward the west end of the lot, and is numbered 4478 Hunt Avenue. This was occupied by Thomas Connelly, with his wife, Mary, as a homestead until the death of Connelly in 1880. The evidence shows conclusively that they had no children, and that Thomas Connelly left no will, and that Mary Connelly continued to live in this dwelling until her death on August 22, 1912. Shortly after the death of Thomas Connelly, Bridget Conway, a sister of the widow, Mary Connelly, with her husband, James, and their two sons and a daughter Mary Conway, came to live with Mary Connelly in this dwelling house. Mary Conway afterwards, in 1900, was married to Patrick Falvey, and she and her said husband are the plaintiffs herein. In 1897 a judgment was rendered in a suit by the Collector of the City of St. Louis against Mary Connelly as defendant for taxes against the property; the property was sold under execution issued on said judgment, and one Nicholas Wilhelm became the *449 purchaser, and received a sheriff's deed in August, 1898. On September 6, 1900, Wilhelm executed a quitclaim deed to the property to Bridget Conway, and in January, 1902, Bridget Conway and her husband executed a warranty deed for the east twenty-five feet of the lot to the plaintiffs, and in 1903 executed to plaintiffs a warranty deed for an additional strip of five feet. In March, 1918, Bridget Conway executed to plaintiffs a warranty deed for all the property in controversy. The introduction of these deeds, and of the sheriff's deed, was objected to by defendants on the ground that Mary Connelly had only a life estate in the property, and was the sole defendant in the suit for taxes. At this time counsel for plaintiffs announced that their title was based on adverse possession and these deeds were admitted for the purpose of showing that they claimed adversely, and claimed title while in possession.
"In 1902, the plaintiffs erected a dwelling house on the east part of the lot, being the part embraced in the deeds theretofore made to them by Bridget Conway and her husband, and they lived there until about 1911, and after that rented it to others, and collected the rents afterward. They, with Mr. Conway, also enlarged the house on the west part of the lot, the original dwelling of Thomas Connelly. The evidence showed that the general and special taxes on the property had been paid by plaintiffs, and by Bridget Conway after the execution of the deeds mentioned.
"The evidence further showed that there was a fence around the whole of the property for many years, antedating the conveyance to plaintiffs, and that about 1902 the plaintiffs erected a fence across the lot, between the two houses. This suit was filed August 25, 1921, or nine years after the death of Mary Connelly, the widow of Thomas Connelly. The cross-bill of defendants was filed December 9, 1921. Both parties offered instructions in the nature of declarations of law. The court gave the declarations asked by plaintiffs, and refused all those offered by defendants, and rendered judgment in favor of the plaintiffs.
"I. The plaintiffs have filed their motion to dismiss the appeal for failure to comply with the Rule 15, and upon the ground that the assignment of errors set out inDismissal defendants' brief does not specifically andof Appeal. distinctly allege the errors claimed to have been committed by the trial court. The brief contains five assignments of error. The first is so general as to be within the rule announced in Vahldick v. Vahldick,
"II. Counsel for plaintiffs insist here that the suit is one at law, and therefore the finding of the trial court must be affirmed unless error was committed in the admission or rejection of evidence, or in the giving or refusal ofAction instructions. Counsel for defendants insist that it is aat Law. suit in equity, and that the finding is reviewable as such. The defendants claimed title as heirs at law of Thomas Connelly, deceased, who, it was admitted, had all the title to the property that had emanated from the Government, and claimed that their title was as remaindermen, subject to the life estate of Mary Connelly in the property as a homestead. Plaintiffs' claim was based upon the sheriff's deed to Wilhelm, and upon adverse possession and the Statute of Limitations. Essentially, the claim is founded on adverse possession, asserted as taken and maintained openly, and in good faith. There is no mention in the record of waiver of a jury. But, both parties asked declarations of law to be given. It is true that defendants asked for a decree in partition and did so in the same count in which they asked judgment for possession.
"In Grimes v. Miller,
"III. There is no conflict in the evidence that Thomas Connelly died in November, 1880, nor that he, with his wife, was occupying *451
the property as his homestead at the time of his death. Under the law then in force his widow became vested with anAdverse estate for life in the property so occupied. [AileyPossession. v. Burnett,
"The widow's possession and occupancy of the homestead in its inception is not adverse, but friendly to the heirs of the husband, and is regarded as continuing so until disclaimed by hostile acts or declarations. [Chouteau v. Riddle,
"In this case, the two estates, the life estate of Mary Connelly, and the remainder in the heirs of Thomas Connelly, were created by operation of law, seventeen years before the tax judgment was rendered, and about twenty years before Bridget Conway obtained the deed from Wilhelm. The duty to pay the taxes accruing was upon the life tenant, and not upon the remaindermen. [Lewis v. Barnes, 272 Mo. l.c. 406; Hall v. French, 165 Mo. l.c. 438.] The heirs of Thomas Connelly were not entitled to the possession of the property until the death of the widow, and until that time could not have maintained an action for possession. Beyond any dispute the two estates in this property had been created long before the *452 adverse possession began. During that period the possession of the tenant was the possession of the remaindermen, so far as third persons were concerned. [Hall v. French, 165 Mo. l.c. 438.]
"The adverse possession of plaintiffs could operate as against the life estate of the widow, but it did not operate against the remaindermen so as to set the Statute of Limitations in motion against the remaindermen, until the expiration of the life estate by the death of Mary Connelly. [Hall v. French,
"`A stranger to the title may, of course, during the life of the life tenant, establish an adverse possession as against the life tenant and acquire title thereby to the life estate, but he cannot during the existence of the life estate establish an adverse possession as against the remaindermen or reversioners whose interests are vested, so as to bar their interest and the Statute of Limitations does not commence to run against the latter until the determination of the life estate.' [21 C.J. 975.]
"The defendants offered several declarations, all of which were refused. They disclose defendants' theory as to the rights of defendants as remaindermen, but they are notDeclaration declarations of law stated as arising upon factsof Law. submitted or to be found, but are statements of facts assumed as true, and conclusions based thereon. The declaration of law given for the plaintiffs authorizing a recovery, the only one disposing of the case, and the only one necessary to be noticed, is as follows:
"`The court declares the law to be that if it believes from the evidence that for a period of ten years or more before the commencement of this action plaintiffs and their grantors have been in the actual, open, notorious, continuous, hostile, exclusive and adverse possession of the real estate described in the cross-bill or any part thereof, claiming title thereto against all the world, then such possession vests title to such real estate in plaintiffs. If therefore, the court finds that plaintiffs and Bridget and James Conway, their grantors, have continuously for such period of time had the physical possession of said real estate, or any part thereof, either by themselves or their tenants, and exercised all the usual rights of ownership over the same and during such time claimed absolute title so openly and notoriously that their possession and claim of absolute title was known, or might be presumed to have been known, to defendants and those under whom they claim, then title to said real estate, or so much thereof as was so claimed and possessed, has vested in *453 plaintiffs, and the court should find in favor of plaintiffs to the extent such real estate was so possessed and claimed.'
"By adopting this declaration as the only law and theory upon which the rights of the parties were determinable, the court excluded all consideration of the evidence as to the existence of a life estate, and rights of defendants as remaindermen, the time of expiration of the life estate, and the time when a right of action could accrue to the defendants, and when the Statute of Limitations was set in motion against them. Hypothesizing ten years of adverse possession by plaintiffs, it was peremptory in character in requiring a finding for plaintiffs, entirely overlooking the questions whether or when a right of action for the possession of the property accrued to defendants. Since this declaration undertook to cover the case and was the only one given so doing, it must be assumed that the finding for plaintiffs was upon the theory stated therein.
"Counsel for plaintiffs urge in their briefs that title by adverse possession is an independent title and may be set up by anyone even against his own grantor and those under whom he derives some title and where there is a common source of title, citing Macklot v. Dubreuil,
"The judgment should be reversed, and the cause remanded."
IV. On rehearing, respondents urge with much seriousness that the declaration of law (above quoted) given for, and at the request of, respondents, and which authorizes aInclusion of finding and judgment for respondents, does notDefenses. attempt to submit the whole case, but correctly presents plaintiffs' (respondents') theory of the law of the case, and any omission therefrom of appellants' theory of the law of the case is mere non-direction rather than misdirection, in the absence of any requested declaration of law by defendants (appellants) embodying their theory of the law of the case. Hence, it is argued that the trial court committed no error in the giving of plaintiffs' declaration of law and the judgment nisi must be affirmed. In support of this contention, respondents cite DeFord v. Johnson, 177 S.W. 577; Morgan v. Mulhall,
It is true that, in law actions (as distinguishable from purely equity actions) tried by the court without the aid of a jury, the court should, when requested, either give or refuse instructions (commonly called declarations of law) or state in writing the conclusions of facts found separately from the conclusions of law, but should not pursue both courses. [Kostuba v. Miller,
Looking to the declaration of law given at request of respondents, hereinabove quoted, we find that it is predicated upon ten years physical possession of the real property involved by respondents and their grantors, Bridget and James Conway, and excludes all consideration of the facts in evidence as to the existence of the life estate and possession of Mary Connelly, the rights of appellants as remaindermen, the time of the expiration of Mary Connelly's life estate, the time when the right of action for possession of the premises accrued to appellants, and the time when the Statute of Limitations commenced to run against appellants' right of action. The question of respondents' adverse possession of the real property in issue is one of mixed law and fact, dependent upon the above-mentioned elements, which were omitted from the declaration of law and upon which it should have been hypothesized. As said by this court in Dollarhide v. Mabary, 125 Mo. l.c. 202: "Where the court sitting as a jury tries questions of mixed fact and law, like the question of adverse possession, it should give instructions applicable to the case made by the evidence, defining adverse possession." It is apparent to us, from an analysis of the declaration of law referred to, that the trial court proceeded upon a wrong theory respecting the law of adverse possession as applicable to the evidence. Hence, as we have ruled, the giving of plaintiffs' declaration was error.
We might make the further observation, in passing, that we have again examined certain of appellants' refused declarations of law and, while they might well have been refused if offered as instructions to a jury, they at least disclose appellants' theory of law respecting their rights as remaindermen. The office of declarations of law being to inform the appellate court as to the theory of law upon which the case was tried and ruled by the trial court, the same nicety in declarations of law is not required as in instructions to a jury. [Zahm v. Royal Fraternal Union,
V. Since the submission of this cause on rehearing, the point is raised by respondents in their supplemental brief that the tract of land in controversy contains an area ofDower: more than eighteen square rods, the amount allowedAssignment: by the homestead statute in force and effect at theLimitations. death of Thomas Connelly A computation of the area of the disputed land, assuming the correctness and accuracy of the survey and plat thereof in evidence, discloses that the area thereof is approximately twenty-four square rods. Therefore, the excess in amount over and above the homestead allowed by the statute is approximately six square rods. The homestead statute, at the time of Thomas Connelly's death (Sec. 2689, R.S. 1879), defines the homestead thus: "The homestead of every housekeeper or head of a family, consisting (consists) of a dwelling house and appurtenances, and the land used in connection therewith, not exceeding the amount and value herein limited . . . and in cities having a population of forty thousand or more, such homestead shall not include more than eighteen square rods of ground, or exceed the total value of three thousand dollars."
The old dwelling house, occupied by Thomas Connelly during his life and thereafter by his widow. Mary Connelly, is located in the west end of the tract, while the new house, built by the respondents Falvey, is located in the east end of the tract. According to the survey or plat in evidence, the greater part of the new house built and occupied by the Falveys about 1902 lies outside and east of the westerly eighteen square rods, and within the excess of six square rods, more or less. Hence, it is urged by respondents that Mary Connelly, the widow and life tenant, never having had any right to the occupancy and possession of the excess in the east end of the tract, it being outside of her statutory homestead, respondents' possession thereof was adverse to the appellant remaindermen as soon as respondents went into possession in 1902, and therefore appellants' right of action accrued at that time without their having to await the death of Mary Connelly. Respondents furthermore contend that, having indisputable title by adverse possession to the excess, which is approximately the east 24 1/3 feet of the tract, they also have title by adverse possession to the east thirty feet of the tract, conveyed to them by deeds of Bridget Conway in 1902 and 1903, inasmuch as those deeds (under which they claim title) gave them color of title to the whole of the east thirty feet of the tract.
In White v. Spencer,
In the later case of Growney v. O'Donnell,
In view of our holdings in the two last-cited cases, it would seem logically to follow that, in the instant case, Mary Connelly had to homestead proper in the excess of approximately six square rods, and that, therefore, the fee-simple title to the excess vested in the appellant heirs of the husband, Thomas Connelly, immediately upon his death, subject to the widow's dower therein.
It is insisted, however, by appellants that Mary Connelly, the widow, was the tenant and occupant in possession of all the land and not of a part only, for not only was she entitled to possession and occupancy of the homestead proper for life, but (it is asserted), under Section 2186, Revised Statutes 1879, she was endowed of dower in all the lands of her husband, and, under Section 2205, *458 Revised Statutes 1879, "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 rent for the same." Hence, appellants argue that, dower in the excess not having been assigned to Mary Connelly, she occupied and possessed the whole of the premises until her death on August 22, 1912, and therefore appellants were not entitled to possession of any part of the land until the death of Mary Connelly, which occurred within ten years before the commencement of this action.
Counsel for respective parties to this action have not aided us in our labor by the citation of authorities in support of their respective contentions, being apparently content to blandly and baldly state their respective contentions and let them go at that. Consequently, we have found it necessary, at the expense of considerable time and much labor on our part, to run down the case law and statutes applicable to and bearing on the troublous and vexing questions so blandly stated with apparent confidence by respective counsel.
Under the statute (Sec. 2205, R.S. 1879) in force and effect at the death of Thomas Connelly, his widow, Mary Connelly, had the unquestionable right, until her dower was assigned, to occupy and enjoy the mansion house of her husband and the messuages of lands thereto belonging, which included, in the instant case, the excess or surplus of the lands of the deceased husband over and above the statutory homestead. [Holmes v. Kring,
It remains, therefore, for us to determine whether the widow's possessory right of quarantine herein, which accrued upon her husband's death in 1880 as an incident to her rightQuarantine. of dower, was for an indefinite tenure, terminable only upon the assignment of dower, or, in the event of no assignment of dower, as here, then upon her death (as held in the early cases above cited), or whether her right of quarantine was affected and limited in tenure by subsequent legislative enactment.
In 1887, there was enacted an act limiting the time for the institution of suits for dower in real estate. That act (Laws 1887, p. 177) provided: "All actions for the recovery of dower in real estate, which shall not be commenced within ten years from and after this act takes effect, or within ten years after the death of the husband, through or under whom such dower is claimed or demanded, shall be forever barred: provided, however, that if any person entitled to bring an action for the recovery of dower at the time this act takes effect be under legal disability to bring such action, such person may bring such action after the time herein limited and within three years after such disability is removed: provided, further, that the limitation in this act specified shall not be deemed to apply in any case where the widow is in possession of, and enjoying the mansion house of her husband as specified in Section 2205, Revised Statutes of the State of Missouri of 1879, until she shall have been evicted therefrom."
The foregoing act was amended at the revising session of the General Assembly of 1889 by eliminating the saving clause and the two provisos therein, leaving the amended statute in the following form: "All actions for the recovery of dower in real estate, which shall not be commenced within ten years from the death of the husband, through or under whom such dower is claimed or demanded, shall be forever barred." [Sec. 4558, R.S. 1889.] It has been brought down in its amended form, by subsequent revisions of the statutes, until its repeal and the enactment of a new section in lieu thereof in 1921. [Laws 1921, p. 119.]
The effect of the special statute of limitation of 1887 was discussed by this court in Belfast Investment Co. v. Curry,
In McFarland v. McFarland,
In Edmonds v. Scharff, 213 S.W. 823, 827, the same statute was again under review and we there said: "The plaintiff asserts that the Statute of Limitations did not run on account of the occupation of the mansion house by the widow after the death of her husband. . . . However, under the recent rulings of this court, and the plain terms of the statute, the right of action to have dower assigned is barred. [Quoting the section of the statute, Sec. 391, R.S. 1909; Sec. 4558, R.S. 1889.] As the act containing this section was originally passed in 1887, a proviso was appended to the effect that the act should not apply to persons suffering certain disabilities, nor to any case where the widow is in possession of and enjoying the mansion house. The act was amended in the Revision of 1899 so as to omit the proviso, and leave the section to read as above. This court in two recent cases has commented upon the legislative intention manifested in that revision and has announced that there is no doubt the section as it now reads bars an action for dower in every case, without an exception. [Citing and quoting Belfast Investment Co. v. Curry, and McFarland v. McFarland, supra.] . . . These cases settle this contention against the claim of the plaintiff."
In Smith Bros. Land Investment Co. v. Phillips,
Under the rulings laid down by this court in the fore-cited cases, as we construe their force and effect, Mary Connelly, the widow of Thomas Connelly, who was seized of an indefeasible estate for life (by virtue of Sec. 2693, R.S. 1879) in the statutory homestead of her deceased husband, must have demanded an assignment or admeasurement of her dower within ten years from her husband's death, failing in which her dower was barred; and, furthermore, her right of quarantine (by virtue of Sec. 2205, R.S. 1879), being an incident of dower, disappeared and ceased with her right of dower.
So far as the record before us shows, Mary Connelly never sought or demanded an admeasurement, or setting out, of either her homestead or dower in the tract of land in controversy. The Homestead Statute (Sec. 2693, R.S. 1879) in force at the death of Thomas Connelly, authorized the probate court having jurisdiction of the estate of the deceased housekeeper or head of a family, when necessary, to appoint three commissioners to set out such homestead to the person entitled thereto, and Section 2694, Revised Statutes 1879, provided: "The commissioners appointed to set out such homestead, shall, in cases where the right of dower also exists, also set out such dower, and they shall first set out such homestead, and from the residue of the real estate of the deceased, shall set out such dower, but the amount of such dower shall be diminished by the amount of the interest of the widow in such homestead; and if the interest of the widow in such homestead shall equal or exceed one-third interest for and during her natural life, in and to all the real estate of which such housekeeper or head of a family shall have died seized, no dower shall be assigned to such widow." The section of the Homestead Statute of 1879 last referred to and quoted has been brought down by subsequent revisions of the statutes in the identical language. [Sec. 5859, R.S. 1919.]
The foregoing statute was construed in Jordan v. Rudluff,
In the instant case, the land of which Thomas Connelly died seized was located in a city having a population of more than forty thousand, so that he was entitled to a homestead therein of not more than eighteen square rods, or a total value not exceeding three thousand dollars. The tract of land in controversy seemingly contains approximately twenty-four square rods, and it was stipulated at the trial that the premises, at the death of Thomas Connelly in 1880, were of the value of about $500. Consequently, if the homestead proper, including the dwelling house, had been dmeasured and set out to Mary Connelly, the widow, under the foregoing statute, no dower was assignable to her in the excess of approximately six square rods, for it is self-evident that the indefeasible life interest of the widow in the homestead proper exceeded one-third interest for and during her natural life in all the real estate of which her husband died seized, both as to quantity and value.
Thomas Connelly having died in 1880, we are confronted with the determination of the effect of the special statute of limitations of 1887 and its amendment by the statutory revision of 1889 (Sec. 4558, R.S. 1889) upon the quarantine right of his widow, Mary Connelly, to remain in and enjoy the mansion house of her husband and the messuages thereto belonging (including the excess or surplus of land over and above the homestead proper) until her dower (if any) be assigned in the whole premises. Under the decisions before the enactment of the special limitation-statute of 1887, it would seem that the widow's right of quarantine existed for an indefinite tenure terminable only upon the assignment of dower, or, if dower was never assigned, then upon her death. The special limitation-statute of 1887 contained a saving clause by which all actions for the recovery of dower might be commenced within ten years from and after said act took effect, regardless of whether the death of the husband occurred ten years before the passage of the act, and also contained a proviso that "the limitation in this act specified shall not be deemed to apply in any case where the widow is in possession of and enjoying the mansion house of her husband as specified in Section 2205, Revised Statutes of the State of Missouri of 1879, until she shall have been evicted therefrom." It is undisputed upon the record in the instant case that Mary Connelly was in possession of and enjoying the mansion house of her deceased husband at the time of the taking effect of the statute of 1887, and that she was never evicted therefrom. By the revision statute of 1889 (Sec. 4558, R.S. 1889), the saving clause and proviso of the Act of 1887 were eliminated, and it is provided that "all actions for the recovery of dower in real estate, which shall not be commenced *463 within ten years from the death of the husband . . . shall be forever barred." The question with which we are now confronted is whether the revision statute of 1889 took away from the widow, Mary Connelly, a vested right under the Act of 1887 to enjoy her possessory quarantine right in the entire premises until dower was assigned, or until her death. Under the decisions since the revision statute of 1889 above cited, the widow's quarantine right is held to be extinguished with her right of dower, unless an action to recover dower is commenced within the limitation period of ten years prescribed by the statute.
In Cranor v. School District,
In Weber v. Manning,
The point seems to have been squarely ruled in Belfast Investment Co. v. Curry,
Whether Mary Connelly should have brought an action to recover dower (as she was required to do by the revision statute of 1889) within ten years from the death of her husband, or within ten years from the taking effect of the revision statute in any event, she did not bring such action within either period of time and her right of action for recovery of dower in the lands of her deceased husband was barred by the statute, and with the bar of an action for recovery of her dower went the extinguishment of her right of quarantine. It follows that Mary Connelly had no lawful right to the possession of the surplus or excess of approximately six square rods in the east end of the tract in controversy, as against the appellant heirs of her deceased husband, when respondents Falvey went into possession of said excess under their deed from Bridget Conway in 1902. The appellant heirs of Thomas Connelly could have taken possession of the excess of six square rods, or, in the event that Mary Connelly, or any one claiming under her, had refused to relinquish possession, the appellants could have maintained ejectment and evicted her, or any one claiming under her, at any time after her quarantine right in the excess was extinguished, which was prior to the time when respondents went into possession of the excess in 1902. Respondents' possession of the excess of approximately six square rods at the east end of the tract was adverse and hostile to appellants, and respondents Falvey having taken possession of the excess under color of their deed from Bridget Conway in 1902, and having held continuous possession thereof for more than ten years thereafter and before the commencement of the instant suit, appellants are barred from asserting any claim or title in the excess, which, according to the survey in evidence, is approximately the east 24 feet 4¾ inches of the tract in controversy. The respondents, however, have neither title by adverse possession nor lawful paper title to any part of the homestead proper, consisting of eighteen square rods in the west end of the tract, and the dwelling house thereon, as we have ruled, for the reason that appellants were not entitled to possession of the homestead proper until the death of the life tenant, Mary Connelly, in 1912, less than ten years before the commencement of this action.
The judgment nisi is therefore reversed and the cause is remanded for further proceedings in accordance with the views herein expressed. Lindsay, C., concurs.
Addendum
The foregoing opinion by SEDDON, C., is adopted as the opinion of the court. All of the judges concur, except Graves, J., absent. *465