Betts v. Gehrig

• Decision Date: 19 December 1924
• Docket Number: 24083
• Citation: 266 S.W. 690,306 Mo. 36
• Parties: IRA PIERCE BETTS, Appellant, v. W. A. GEHRIG et al
• Court: Missouri Supreme Court

266 S.W. 690

306 Mo. 36

IRA PIERCE BETTS, Appellant, v. W. A. GEHRIG et al

No. 24083

Supreme Court of Missouri

December 19, 1924

Motion for Rehearing Denied December 19, 1924.

Appeal from Butler Circuit Court; Hon. Almon Ing, Judge.

Affirmed (in part); reversed and remanded (in part).

J L. Fort, W. E. Edmonds and McKay & Jones for appellant.

(1) The court erred in holding that plaintiff in this cause was barred by the ten year Statute of Limitations. (a) The right of dower was not assigned and the widow would not have been precluded from setting up her quarantine right to the exclusive possession of the premises in any action plaintiff might have brought against her for possession of his inheritance. Nor would her grantee have been so precluded at any time during a period of ten years next after the death of John M. Betts. Fisher v. Sickman, 125 Mo. 177; Shoultz v. Lee, 260 Mo. 724; Null v Howell, 111 Mo. 273; Moran v. Stewart, 246 Mo 474; Melton v. Fitch, 125 Mo. 281; Givens v. Ott, 222 Mo. 420. (b) Until dower be assigned the widow or one holding under her by deed is entitled to the possession of the mansion house and plantation of her husband, free of rents. Sec. 334, R. S. 1919; Phillips v. Person, 172 Mo. 24; Smith v. Stephens, 164 Mo. 415; Fisher v. Sickman, 125 Mo. 177; Shoutz v. Lee, 260 Mo. 719; Carey v. Wist, 139 Mo. 146; Osborn v. Weldon, 146 Mo. 192. (c) The plantation may be a separate tract from the home of deceased, yet the right of quarantine in same exists, regardless of the title by which his mansion house is held. Gentry v. Gentry, 122 Mo. 202. (d) The widow of John M. Betts, the common source of title, after his death had the use of all the land he died seized of together with his mansion house until dower was assigned, provided dower was assigned within ten years from the death of the husband, and the proof shows that Betts died on the 9th day of August, 1908, which would bar her dower, on August 9, 1918, and the Statute of Limitations would start to run from that time against the heir and would bar him on August 9, 1928, or ten years after it started. This suit was filed and service had May 20, 1920, or less than two years after the statute started. Sec. 359, R. S. 1919; Belfast Inv. Co. v. Curry, 264 Mo. 483. (e) The record discloses that lots 5 and 6 in block 7 in Campbell, as well as being the mansion house of the deceased, was his homestead; that he resided there at the time of his death and his widow resided there after his death; that his widow never conveyed said homestead until March 17, 1914; that Thompson never received any deed to this property until the 27th day of March, 1914. The record also discloses that the widow re-married April 11, 1911, and that these suits were brought on the 20th of May, 1920. Therefore, under no theory could plaintiff be barred to claim lots 5 and 6 in block 7. Medis v. Kenney, 176 Mo. 208.

T. R. R. Ely and Smith & Seed for respondents.

(1) If appellant is an heir of John M. Betts, any and all rights of action that he might have for the recovery of real estate left by the said John M. Betts is barred by the Statute of Limitations. R. S. 1919, secs. 1305, 1307. (2) The Statute of Limitations commenced to run against this appellant August 26, 1908, when the widow of John M. Betts duly filed her election to take a child's part. (a) When a widow elects to take a child's share subject to payment of debts and makes such election properly executed, she, thereby renounces all claim of dower, and all incidents of dower such as the right to remain in the mansion house, and in lieu becomes by the very act of such election the owner in fee of an undivided interest in the lands of her husband, and a tenant in common with the other heirs. Wigley v. Beaucamp, 51 Mo. 544; Klocke v. Klocke, 273 Mo. 157; Matney v. Graham, 50 Mo. 563; Adams v. Adams, 183 Mo. 408; Kenney v. McVoy, 206 Mo. 55; Christian v. Linderman, 202 Mo. 605; Newton v. Newton, 162 Mo. 187; McFadden v. Board, 188 Mo. 688. (b) When ten years have elapsed since the right of action accrued and three of those years have been free from disability, the right of action is barred. Grey v. Yates, 67 Mo. 603.

James T. Blair, P. J.

OPINION

BLAIR

In the Dunklin Circuit Court appellant, as plaintiff began a suit to ascertain and determine title and for partition against Gehrig, a like proceeding against Thompson, and a third against Walker and Groff. On change of venue the counts for partition were abandoned; the three cases were heard together, and are now here on separate appeals but on a single record.

The pleadings are not in question and there is no claim they do not cover the issues as presented to this court. They need not be set out. All the realty involved was owned by John M. Betts at the date of his death, August 9, 1908, and he is the common source of title.

The facts are not much in dispute. In December, 1887, John M Betts married. He and his first wife, Martha Ellen Betts, became estranged and he sued for divorce. Thereafter and some months after decree for plaintiff in that case, this appellant was born in Arkansas, October 17, 1893. On August 18, 1895, Martha Ellen Betts, appellant's mother, died, and he subsequently lived with her relatives. He is her only living child. September 3, 1896, John M. Betts re-married. This second wife, Sarah Ida Betts, survived him. He died August 8, 1908. They had no children. August 21, 1908, Sarah Ida Betts filed her election to take under Section 2939, Revised Statutes 1899, now Section 321, Revised Statutes 1919, unchanged. In the same year Sarah Ida Betts brought her suit to partition the lands owned at his death by her husband, John M. Betts. These included all the lands involved in the three instant cases. The defendants in that partition suit were the father, sister and niece of John M. Betts. The petition pleaded John M. Betts's ownership; the widowhood of plaintiff, Sarah Ida; her election to take one-half of John M. Betts's real and personal property, subject to his debts; that administration was proceeding and that there was ample personalty to pay all debts of the estate. Plaintiff also claimed a homestead in her late husband's property, and alleged each defendant was entitled to a one-sixth interest in the remaining property. There was a decree for plaintiff which followed the prayer of the petition. Commissioners were appointed and set off to Sarah Ida Betts the southwest quarter of Section 1 and the north half of the northwest quarter of the northwest quarter of Section 12, Township 21, Range 9 East, in Dunklin County. They valued this at $ 9000. They set off to defendants, jointly, Lot 2, Block 5, Forrest Hill Addition to the city of Campbell, and Lot 1, Block B in the city of Campbell, valued at $ 8000. To equalize these the report and the decree required plaintiff to pay defendants $ 500. Lots 5 and 6 in Block 7, in Campbell, which constituted the homestead and mansion house, were ordered sold, and at the sale were purchased by Sarah Ida Betts. November 10, 1910, she sold the farm set off to her to respondent W. A. Gehrig. March 27, 1914, she sold lots 5 and 6, Block 7, in Campbell, the homestead and mansion house, to respondent N.W. Thompson. Under a decree rendered in December, 1910, in a suit in...