Phillips v. Presson, 172 Mo. 24

172 Mo. 24 | Mo. | 1903

BRACE, P. J.

This is an action in ejectment to recover the possession of the east half of the northwest > quarter of section 9, township 25, range 15, in Mississippi county. The petition is in common form. The answer, a general denial. The trial, before the court without a jury on an agreed statement of facts. Judgment for the plaintiffs, and defendants appeal. The plaintiffs are the minor children of J. J. Phillips, deceased, who died seized of the premises, which was his homestead. The defendants are in possession of the premises, holding the same under a deed from Mrs. Martha Phillips, the widow of said deceased, whose dower has never been assigned to her, conveying to them all her interest therein, and the only question in the ease is, which party has the better right to the possession of the premises ? On the death of her husband ' Mrs. Phillips became invested with three cognate rights in and to the premises, the right of quarantine, of dower and of homestead. [E. S. 1899, secs. 2933, 2954 and 3620.] Her quarantine gave her the right to the possession of the premises until her dower therein was assigned her. [Sec. 2954, supra.]

At common law, and in many of the States, the right of quarantine is not assignable [10 Am. and Eng. Ency. of Law (2 Ed.), p. 148, and notes] and such is also the case with the right of unassigned dower. [Ib., p. 147, and notes.] But by a long and uniform line of decisions in this State the doctrine is well established that a widow’s right of quarantine is a possessory right on which an action of ejectment may be maintained or defended, and that this right is assignable and carries with it all the incidents that belonged to it prior to the transfer. [Stokes v. McAlister, 2 Mo. 163; Jones v. Manly, 58 Mo. 559; State v. Moore, 61 Mo. 276; Brown v. Moore, 74 Mo. 633; Gentry v. Gentry, 122 Mo. 202; Fischer v. Siekmann, 125 Mo. 165; Carey v. West, 139 Mo. 146.] And since 1889, by express statutory provision the widow’s right to unassigned dower is also alienable. [R. S. 1899, sec. 2934; R. S. 1889, sec. 4514.] So that the defendants by their deed from Mrs. Phillips acquired all her quarantine and dower rights in the premises, stand in her shoes, and sustain the same" relations to this property that she did before the transfer was made. And if the plaintiffs had no other claim to this property, than as heirs at law of their deceased father, there can be no question but that the defendants would have a better right to its possession than the plaintiffs. [Miller v. Talley, 48 Mo. 503; Holmes v. Kring, 93 Mo. 452; Westmeyer v. Gallenkamp, 154 Mo. 28; Smith v. Stephens, 164 Mo. 415, and cases supra.] But the land in question was the homestead of their father, and when he. died, the plaintiffs, his minor children, also, became entitled jointly with their mother to the possession of the premises until the youngest one of their number attained “its legal majority”. [Sec. 3620, supra.] Of this right they could not- be deprived by any act or deed of their mother. She might transfer her interest in, and abandon the homestead if she saw proper to do so, but neither she, nor any one claiming under her, could deprive the minor children of their right to its possession, or in any manner impair that right. And if ousted, as in this case, they may maintain ejectment to recover the possession, thereof, and retain the same until the period during which the law has allotted it to them for a homestead has expired. .[Canole v. Hurt, 78 Mo. 649; Roberts v. Ware, 80 Mo. 363; Rogers v. Mayes, 84 Mo. 520; Rhorer v. Brockage, 86 Mo. 544; Hufschmidt v. Gross, 112 Mo. 649.] This has been so clearly and pointedly decided in these cases, that a further discussion of the case is unnecessary. The judgment of the circuit court is for the right party, and is affirmed.

All •concur.