Graham v. Stafford

• Decision Date: 18 February 1903
• Citation: 72 S.W. 507,171 Mo. 692
• Parties: GRAHAM et al. v. STAFFORD et al.
• Court: Missouri Supreme Court

72 S.W. 507

171 Mo. 692

GRAHAM et al. v. STAFFORD et al.

Supreme Court of Missouri, Division No. 1.

February 18, 1903.

DESCENT AND DISTRIBUTION—WIDOW'S QUARANTINE —ASSIGNMENT—RIGHTS OF PURCHASER —TERMINATION—ASSIGNMENT OF DOWER —LIMITATIONS—LACHES.

1. Where a widow resided on land, owned by her husband, after his death, a conveyance of the land by her operated as a valid grant of the widow's quarantine, which entitled the purchaser to possession until dower was assigned, or during the widow's life at the pleasure of the remaindermen.

2. Where a widow conveyed her right to quarantine in the house and plantation of her deceased husband, and dower was not assigned to the widow, limitations did not begin to run against an action by a remainderman to recover the property from the grantee until the widow's death.

3. Where, after her husband's death, his widow conveyed her quarantine in the house and plantation on which they had lived, the fact

that remaindermen did not terminate the purchaser's rights by having dower assigned, and did not assert ownership of the land for 50 years after the husband's death, during which the widow still lived, did not constitute such laches as precluded them from recovering the land after the widow's death.

Appeal from circuit court, Daviess county; Gallatin Craig, Judge.

Ejectment by James L. Graham and others against Newton Stafford and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Suit in ejectment for 11 2/3 acres of land, described by metes and bounds, in the north part of the N. E. ¼, S. E. ¼, Sec. 24, town 67, range 29, in Daviess county, against defendant in possession. The petition is in the usual form, alleging ouster as of August 29, 1898. The answer is a general denial. There was judgment for plaintiffs, and the case is brought here on defendant's appeal. The plaintiffs, a son and the grandchildren of William M. Graham, deceased, claim the whole of said southeast quarter aforesaid, and began their suits in ejectment against other persons found in possession of the remainder of said quarter section at the same time this action was begun, and those suits are to await and abide the result of the judgment herein. The evidence at the trial disclosed this state of facts: That William M. Graham, deceased, the father of one of these plaintiffs, and the grandfather of the others, entered said S. E. ¼, Sec. 24, town 61, range 29, in the year 1843, and took immediate possession thereof, enclosed a few acres, built a small house thereon, and occupied the house and premises as a home for himself and family until the time of his death, which occurred in September, 1845; that the widow, with the children, continued to live upon the land, and in the latter part of the year 1847 she was married to one John M. Miller, and he with his wife and her children by her first husband further continued to live upon the land in controversy, as their only home, until February, 1848, when Mrs. Miller sold her interest therein to her brother-in-law James J. Graham, who, by himself and those claiming under him, have even since been in the exclusive possession and enjoyment of the land up to the trial of this action. When James J. Graham bought Mrs. Miller's interest in the land in 1848, she and her then husband, John M. Miller, joined in a deed, with covenants of general warranty, intending to convey the wife's interest in the land in controversy to said grantee, but by an oversight the particular quarter of the section named was omitted from the description. This defect not being discovered until years afterwards, in October, 1867, Mrs. Miller and her husband made another deed to said James J. Graham, to correct said defect, in which deed the land was properly described. After selling her interest in the land in controversy in 1848, Mrs. Miller, with her then husband, moved to Virginia, and there the family continued to live until the death of Mrs. Miller in 1898. It was also shown that no assignment of dower in the land to the widow was ever made. These are the substantial facts of the case. There was, however, some testimony by way of the declarations of one Meadows appearing in an application for a continuance by defendant, to the effect that the widow, Rebecca Graham, with her children, moved from the household in which the husband, William M. Graham, had died, shortly after that occurrence, to the home of her brother-in-law, the grantee in the deed of February 4, 1848, and lived with him until her marriage to John M. Miller and their subsequent departure for Virginia. This fact, however, if it could be said to have any significance, was found by the trial court against defendant—very properly, we think—and so we have stated the fact to be that the widow remained upon the homestead until she sold her interest therein to James J. Graham, through whom defendant's only claim of title to the land is made.

Hicklin, Leopard & Hicklin and H. K. Allen, for appellants. W. D. Hamilton and Boyd Dudley, for respondents.

ROBINSON, J. (after stating the facts).

As we understand appellants' position on this appeal, it is, to use the language of their brief, "that Rebecca Graham, widow of Wm. M. Graham, respondents' ancestor, by joining in the deed of date Feb. 4, 1848, and returning to Virginia, abandoned and destroyed her right of quarantine, and that plaintiffs are barred from recovery herein by lapse of time," and, second, "that quarantine is a mere personal privilege to be exercised in favor of the widow, but is not the subject of...