Quick v. Rufe

• Citation: 164 Mo. 408,64 S.W. 102
• Parties: QUICK et al. v. RUFE.
• Decision Date: 12 June 1901
• Court: Missouri Supreme Court

64 S.W. 102

164 Mo. 408

QUICK et al. v. RUFE.

Supreme Court of Missouri, Division No. 1.

June 12, 1901.

EJECTMENT — LIMITATION OF ACTIONS — ASSIGNMENT OF DOWER.

1. Ejectment by an heir to recover her interest in the property of her ancestor 36 years after her right of action accrued and 17 years after the ouster alleged is barred by limitations.

2. In ejectment by an heir to recover her interest in property of her ancestor, brought 36 years after her right of action accrued, the fact that dower had never been assigned the widow does not prevent limitations from running, as the right of quarantine is personal to the widow, she having abandoned the same 32 years before the action was brought.

Appeal from circuit court, Osage county.

Ejectment by Benton Quick and another against Fred Rufe. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

W. S. Pope and Henry Marquand, for appellant. Ryors & Voshall, for respondents.

MARSHALL, J.

This is an action in ejectment, begun February 23, 1898, to recover an undivided one-eighth part of the S. ½ of the S. W. ¼ of the N. E. ¼ of section 13, township 45, range 8, in Osage county. The petition is in the usual form, and lays the ouster as of March 15, 1881. The answer admits possession, and then denies generally the allegations of the petition, and pleads affirmatively the statute of limitations. The reply is a general denial. There was a judgment for plaintiffs for an undivided one-tenth interest, and defendant appealed.

The facts are these: Moses A. Phillips entered the land in controversy on March 8, 1836. He died in the year 1852, seised of the land, and leaving his widow and 10 children. Four of the children died, two with and two without issue; and the interest of one of the four was sold in 1864 by his administrator to his mother. The deed purports to convey an undivided one-tenth interest. In January, 1860, one of the children, — Judy Emeline, — then 16 years old, married Benton Quick, and this action is brought by them to recover her share of the property. The defendant claims title in this way: On April 12, 1866, the widow and one daughter and one son conveyed to Irvine Cox, by warranty deed, seven-tenths of the land. On May 29, 1866, the widow, as guardian of the two minor heirs, conveyed to said Cox two-tenths of the land. Cox mortgaged the nine-tenths interest so acquired, and the defendant acquired title thereto through the foreclosure of the mortgage by mesne conveyances on January 20, 1881, and thereafter, on December 9, 1881, he acquired a one-tenth interest from one Sanders, who had, on March 7, 1881, purchased the same from Joseph Quick, who was the only heir of Frances, a deceased child of the ancestor. In this way defendant claims to have acquired the whole interest in 1881, and to have held possession of the whole property for over 24 years continuously, notoriously, openly, and adversely to the plaintiffs and the whole world. It does not appear by what right the widow and one daughter and one son conveyed seven-tenths to Cox in 1866. Judy, the plaintiff, never conveyed her interest, and never authorized it, or ratified it; so that the defendant has no title to her interest, unless he has acquired it by limitation. The case is here on a certificate of the judgment; and the abstract of the record, which respondent concedes is substantially correct, does not show whether the widow's dower was ever assigned her, or whether she elected to take a child's share. It does show, however, that the widow died on the 30th of June, 1898, or about four months after this suit was begun. Mrs. Quick testified that her father died when she was only 8 years old, and that she married January 11, 1860, when she was only 16 years old, at her mother's house, in Osage county, and lived in Osage county until 1865, then lived a year in Schuyler county, then a year in Jasper county, then for five years again in Schuyler county, then three years in Arkansas, and then moved to Texas, where she has resided ever since; and that at the time her deposition was taken, in July, 1898, she was 54 years old, and her husband testified he was 58 years old. No instructions were asked by the plaintiff, and all those asked by the defendant were refused. The case was tried by that court without a jury, and resulted in plaintiff's favor for possession and for $1 damages, and the rents and profits were assessed at 25 cents per month.

1. Mrs. Quick's father died in 1852. She married in January, 1860, and was 16 years old at that time. She resided in Osage county until 1865. At the time this suit was begun she was 54 years old. The defendant, and those under whom he claims have been in the open, continuous, exclusive, notorious, and adverse possession of the whole property, under color of title as to nine-tenths of it, since 1866, and since March, 1881, under color of title as to the whole of it. True, the defendant never acquired Mrs. Quick's interest by any...