Betts v. Gehrig

*39 JAMES T. BLAIR, P. J. 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. Pie 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 subsequen *40 tly 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 Sefction 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, *41 in a suit- in partition instituted by John M. Betts, Berlinda Pierce and Violet (Florence) Betts the land previously set off to them in the suit brought by Sarah Ida Betts was sold to E. J. Walker and J. M. Groff, respondents here. Appellant claims title as the son and sole heir Of John M. Betts. Two issues of fact were presented to the trial court. One was the legitimacy of appellant, and the other was whether, assuming his legitimacy, his action was 'barred by the Statutes of Limitations. The court found in favor of the claim of appellant’s legitimacy, and then found that the causes of action were barred by the statute. Appellant became of age in October, 1914, and these suits were instituted in 1920. Counsel conceded on the oral argument that the judgment in the case against Walker and Groff should be affirmed. John M. Betts died seized and possessed of the lands in controversy, and after his death his widow, Sarah Ida Betts, was in possession. No dower has ever been assigned to her. . She re-married in 1911 and is still living. I. Appellant contends that under Section 334, Revised Statutes 1919, Sarah Ida Betts, upon her husband’s death, became entitled to the possession of all the property by her right of quarantine; that . -, i *ni smce no dower has ever been assigned, her right of possession continued in her or her grantees until at least 1918, ten years after the death of John M. Betts, and less than ten years before the beginning of these suits. The quarantine right is, by the statute, confined to “the mansion house, and the messuages or plantation thereto belonging.” There is no evidence that the land -claimed by Gehrig came within any part of the statutory description. Reference to it as a part of the “plantation belonging to the mansion house” of John M. Betts is found in appellant’s brief, but not elsewhere. It is not physically connected with the homestead tract. *42 II. The tract involved in the Thompson case, constituted the homestead. Sarah Ida Betts remained in Possessi°n °f this until 1914, when she conveyed to Thompson. Whether viewed with respect to a homestead or quarantine right, neither came to an end more than ten years before the bringing of these suits. Sarah Ida Betts remarried in 1911. III. The election attempted by Sarah Ida Betts was futile. The trial court proceeded on his finding that aPPellant was the legitimate child of John M. Betts. On this theory an election under Section 2939, Revised Statutes 1899 (Sec. 321, R. S. 1919) was entirely futile as against appellant, since the electing widow was not a member of the class covered by that section. Neither was she within the class included within Section 324, Revised Statutes 1919. She had no child by John M. Betts. The partition suit could not affect appellant since he was not a party to it. IV. The judgment in the case against Walker and Groff and that in the case against Gehrig are affirmed. That in the case of Thompson is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. All concur.