Davis v. Patty

Tet¡.-r.at,, J., delivered the opinion of the court. In 1877 Austin Martin died intestate seized of an undivided one-half interest in fee in fifty-three acres of land, more or less, situated in Noxubee county, and leaving a widow, Charity, and seven children surviving him. Dower has never been assigned to the widow, Charity Martin, who is still alive, but by means of a trust deed executed by said widow and by James and Simon Robinson, two of the children of the decedent, to Cavett, trustee for J. W. Patty & Co., and a sale thereunder, in June, 1892, Mrs. Danella Patty became the owner of the quarantine rights and of the dower rights of said Charity and of the interests of the said James and Simon Robinson in the land, and she has been in the sole [757] possession thereof since June, 1890, receiving the profits thereof, which are alleged to be $50 per annum. The children of Austin Martin, deceased, and those claiming through them filed the bill in this case against Mrs. Patty and Joshua Martin, who owns' the other undivided half interest in said parcel of land, to recover their several interests in the same and to have a decree for their respective shares and of their portion of the profits thereof since it has been in the possession of Mrs. Patty. The bill alleges a waiver of her dower rights by Charity Martin and her forfeiture of quarantine rights by the sale under the trust deed, and it also prays for general relief. The bill was demurred to, the demurrer was sustained, the bill was dismissed and the complainants appeal. Mrs. Patty undoubtedly has acquired the dower interest of Charity Martin, which interest vested in her at the death of her husband, as well as the interests of James and Simon Robinson, and also the quarantine rights of Charity Martin, whatever they may be; but as to the nature and character of the quarantine right, whether it was personal, entitling her personally to the enjoyment of the rents of the land until her dower was assigned to her, or whether it was a property right capable of transfer bjr sale, and so passed to Mrs. Patty and she thereby acquired the land free of rent, we do not decide, as that question has not been discussed, nor was it passed upon by the court below. ' But all the parties to this suit have, undoubtedly, an interest in this parcel of land, and they are entitled to have their several interests adjudicated and set off by metes and bounds to them and to be put in possession of their respective parts. The rule that partition cannot be had until dower is assigned is not an obstruction to the relief sought, because under the prayer for general relief the dower of Charity Martin may be set off to Mrs. Patty, the purchaser thereof, and the other part of the land may be divided according to rights of the several parties holding such rights. Reversed and remanded.