172 Mo. 24 | Mo. | 1903
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
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 prem