53 Mo. 305 (Mo. 1873), Bledsoe v. Simms

• Citation: 53 Mo. 305
• Date: Invalid date
• Docket Number: .
• Parties: LEWIS S. BLEDSOE, Appellant, v. EDWARD W. SIMMS, Respondent.
• Court: Missouri Supreme Court

Page 305

53 Mo. 305 (Mo. 1873)

LEWIS S. BLEDSOE, Appellant,

v.

EDWARD W. SIMMS, Respondent.

Supreme Court of Missouri.

August Term, 1873

Appeal from Carroll Circuit Court.

Ray and Ray, for Appellant.

I. Under the issues, as formed by the pleadings, defendant could not prove that the possession or title was in his wife, or outstanding in a third party. ( Bruce vs. Sims, 34 Mo. 246; Dougherty vs. Matthews, 35 Mo. 520; Harris vs. Han. & St. Jo. R. R., 37 Mo. 307; Jones vs. Louderman, 39 Mo. 287.)

II. Where husband and wife go into the possession of real estate, the title to which is in the wife, by ordinary deed, vesting the fee in her, (but not for her sole and exclusive use.) then by operation of law, the possession is in the husband. And when sued in such a case, he cannot defeat a recovery by showing that the title and possession is in the wife by virtue of such a deed. (Tyler Eject., 169, 472; 1 Bishop Law of Married Women, 582, and § 582; Chambers vs. Handley's Heirs, 3 J. J. Marsh., 99; Foster vs. Marshall, 2 Foster, (N. H.,) 491; Bryan vs. Wear, 4 Mo. 106; 2 Kent, (6 Ed.,) 130.)

III. This proposition is not modified or changed, for the purpose of this action by the 14th section of chapter 115, of our statute on " Married Women."

IV. In actions of ejectment where no legal title appears on either side, then the plaintiff may recover, upon showing a prior abandoned possession, (short of the statutory period sufficient to confer title by limitation.) And that in such cases, the plaintiff's right to recover is not limited to cases where the defendant is a new trespasser, but also covers cases where the defendant claims by color of title also. (Smith vs. Lorillard, 10 Johnson 338; Schultz vs. Lindell, 33 Mo. 172; Dale vs. Faivre, 43 Mo. 556; Ricard vs. Williams, 7 Wheat. 59; Jackson vs. Harder, 4 Johnson 202.)

L. H. Waters, for Respondent.

OPINION

ADAMS, Judge.

This was an action of ejectment, for the northeast quarter of section 14, in township 53, north of range 21 west, being military bounty land, as described and protected by the statute of limitations. (Genl. Stat., Ch. 191, § 1; W. S., 915, § 1.)

The answer was a general denial of the plaintiff's right to the possession, also an assertion on the part of the defendant of his right to the possession, and a plea of the statute of limitations of ten years, averring that neither the plaintiff, his ancestors, predecessors or grantors, or those under whom he claims, had been seized or possessed of the premises, or any part thereof, within ten years next before the commencement of this suit, and that defendant, and those under whom he claims, had been in the adverse possession for more than ten years before suit.

Neither party pretended to have a regular documentary claim of title. Numerous deeds were introduced on each side as evidence of color of title, under which the possession of the land, to the extent of the boundaries named in these documents, was claimed to be held.

The plaintiff claimed that he, and those under whom he claimed, had held possession adverse to all others, long enough to invest him with the...