Miller v. Talley

• Decision Date: 31 October 1871
• Citation: 48 Mo. 503
• Parties: SARAH MILLER, Plaintiff in Error, v. JESSE R. TALLEY, Defendant in Error
• Court: Missouri Supreme Court

48 Mo. 503

SARAH MILLER, Plaintiff in Error,

v.JESSE R. TALLEY, Defendant in Error

Supreme Court of Missouri.

October Term, 1871.

Error to Cape Girardeau Circuit Court.

Houck and Sanford, for plaintiff in error.

I. “Until dower is assigned, the widow may remain in and enjoy the mansion-house of her husband, and the messuage or plantations thereto belonging,” and, when deforced, may maintain ejectment for the same. The remedy given under section 22 of the dower law (Gen. Stat. 1865) is only cumulative. (See Wagn. Stat. 542, § 21; id. 557, note 1; Stokes v. McAllister, 2 Mo. 166; Orrick v. Pratt's Adm'r, 34 Mo. 227; Waller v. Mardus, 29 Mo. 28)

II. Since the enactment of the statute of descents in 1822, the laws of this State have not recognized or created any such an estate in lands as a tenancy by the curtesy. No such an estate exists in this State.

III. Admitting, for the purposes of the argument, that there is such an estate in the lands as a tenancy by the curtesy, still the doctrine of merger, as claimed by the defendant, cannot apply in this cause and unite the two estates of the widow--the dower and the fee--while there is still an outstanding estate. If this doctrine could apply, its only effect would be to destroy the outstanding estate of curtesy.

Davis and Green, for defendant in error.

I. The right of dower before its assignment is not such an estate as will maintain ejectment. (Beal v. Harmon, 38 Mo. 435; Benoist v. Murrin, 47 Mo. 537.) In the case above cited this court held that to enable parties to maintain ejectment they must show a legal interest and a possessory title.

II. When the fee of the estate vested in the plaintiff by the death of the daughter (see 4 Kent, 102 et seq.) there was a merger of the right of dower, and the privilege of quarantine in law if not in equity.

BLISS, Judge, delivered the opinion of the court.

The plaintiff is the widow of Jesse A. Miller, and her dower not having been assigned, she brings this suit to recover possession of the dwelling-house, messuage and plantation, of which he died seized, claiming it under her right of quarantine. It appears that she is the sole heir of her daughter, who gave birth to a living child, which shortly died; and the daughter's husband, the defendant Talley, claims the right of possession as tenant by curtesy.

The statute is unequivocal as to the widow's right to possess the dwelling-house, etc., until dower is assigned (Gen. Stat. 1865, ch. 130, § 21; Wagn. Stat. 542), and unless she could bring this action, she might be kept out of possession. Hence it is held that ejectment will lie in her favor. (Stokes v. McAllister, 2 Mo. 163.) But defendant claims that inasmuch as the plaintiff inherits the fee as heir of her daughter, her right of dower and quarantine is merged in the...