Armor v. Frey

• Citation: 161 S.W. 829,253 Mo. 447
• Parties: ADRIAN W. ARMOR et al., Appellants, v. JOSEPH FREY
• Decision Date: 09 December 1913
• Court: Missouri Supreme Court

161 S.W. 829

253 Mo. 447

ADRIAN W. ARMOR et al., Appellants, v. JOSEPH FREY

Supreme Court of Missouri, Second Division

December 9, 1913

Appeal from Barton Circuit Court. -- Hon. F. C. Johnston, Judge.

Reversed and remanded (with directions).

James G. Park, O. L. Cravens, H. G. Geyer and H. W. Timmonds for appellants.

(1) The share of the deceased partner passes to his heirs or devisees. 3 Kerr Real Prop., 1964, sec. 1999; Tiedeman Real Prop. (1 Ed.), p. 164, sec. 246; 1 Wash. Real Prop., 573 576; 30 Cyc. 434; Keck v. Fisher, 58 Mo. 532; Young v. Thrasher, 115 Mo. 222; Holmes v McGee, 27 Mo. 597; Easton v. Courtwright, 84 Mo. 27; Matthews v. Hunter, 67 Mo. 293; Dyer v Morse, 28 L.R.A. 89 and notes; Baker v Middle-brooks, 81 Ga. 494; Printu v. Turner, 65 Ga. 77; Bank v. Cody, 93 Ga. 151. (c) But there is not even a pretended sale by the surviving partner as such for any purpose. It is true that in the earlier deeds inclusive of the one in the Kearney case, Davis joined with the Moore children so as to convey his half interest and later he bought the bulk of the land from the Moore children, taking deed from them under agreement with them to leave unpaid any claims against the land to be paid later, half and half. Thereafter he held the land claiming absolute ownership and sold same at will in small tracts throughout a period of twenty-five years or more and owned some of it at his death. The purchase money of any deed made by or to Davis never went to pay any partnership debt but went to the life tenant grantors through the medium of the court of ordinary. The deeds actually made purport to convey the interest of grantors and accomplish this purpose. Where this is the case they cannot be construed as being made in an entirely different capacity. Foote v. Sanders, 72 Mo. 621; Bone v. Tyrrell, 113 Mo. 185. (2) Statute of Limitations. (a) The general rule is that the Statute of Limitations does not run or begin to run against the remainderman during the existence of a life estate. So long as the life tenant or his grantee is in possession, such possession is rightful as against the remainderman and there is and can be no adverse possession against such remainderman. In such cases the statute does not begin to run against such remainderman until the death of the life tenant and in such case it makes no difference that the life tenant or his grantee asserts absolute title or holds under deed or other conveyance purporting to give an absolute title. The authorities to this effect are so numerous as to scarcely need citation. Hall v. French, 165 Mo. 430; Reed v. Lowe, 163 Mo. 535; Melton v. Fitch, 125 Mo. 290; Null v. Howell, 111 Mo. 273; Colvin v. Hauenstein, 110 Mo. 575; Keith v. Keith, 80 Mo. 125; Bradley v. Railroad, 91 Mo. 498; Manning v. Coal Co., 181 Mo. 374; Graham v. Ketchum, 192 Mo. 24. (b) The Statute of Limitations as to lands is based essentially on adverse possession and where the possession is not adverse the statute does not begin to run however long the possession continues. No one is barred until the statutory period after his right of possession accrues. 1 Cyc. 1026, 1056-7; Bradley v. Goff, 243 Mo. 95; Dyer v. Whittler, 89 Mo. 91; Johnson v. Prewitt, 32 Mo. 558; Hunnewell v. Burchett, 152 Mo. 614; Wilson v. Frost, 186 Mo. 317; Smith v. Smith, 201 Mo. 544; McMurtry v. Fairley, 194 Mo. 512; Glasgow v. Foundry Co., 229 Mo. 594; Charles v. Pickens, 214 Mo. 215; De Hatre v. Edmonds, 200 Mo. 273; Hall v. French, 165 Mo. 439. "The right limited is the present existing right of action or of entry." . . . The question of the right of action depends on the fact and right of seizin or possession, whoever is entitled to the possession ex necessitate is entitled to the right of action. Dyer v. Whittler, 89 Mo. 86; Johns v. Fenton, 88 Mo. 64; R.S. 1909, sec. 1881. (c) The possession of a life tenant or his assignee is not and cannot be made adverse to the remainderman by any occupancy, claim, assertion of full title, or by any act or deed on the part of such life tenant or his assigns. Hall v. French, 165 Mo. 438; Roberts v. Thomason, 174 Mo. 386; Melton v. Fitch, 125 Mo. 281; Fischer v. Siekmann, 125 Mo. 178; 1 Cyc. 1056; 1 Kerr Real Prop., 575; 1 Ency. Law (2 Ed.), 808; Tiedeman, Real Prop., sec. 65; Salmons v. Davis, 29 Mo. 181; Keith v. Keith, 80 Mo. 127; Pratt v. Canfield, 67 Mo. 53; Sutton v. Casseleggi, 77 Mo. 405; Charles v. Pickens, 214 Mo. 215. (d) It makes no difference as to starting the statute that the remainderman have a right to bring a suit in some form or other to determine or terminate the right of the life tenant to such possession, as a suit to assign dower terminates the right to quarantine. Westmeyer v. Gallenkamp, 154 Mo. 36; Osborn v. Weldon, 146 Mo. 185; Fisher v. Siekmann, 125 Mo. 175; Brown v. Moore, 74 Mo. 633; Graham v. Stafford, 171 Mo. 699; Carey v. West, 139 Mo. 176. Or a suit in equity to vest title in plaintiff. Sherwood v. Baker, 105 Mo. 477. Or a suit by a vendor against a vendee to terminate that relation. Manning v. Coal Co., 181 Mo. 376; Long v. Stockyards Co., 107 Mo. 303. Or in partition to determine the rights of conflicting claimants to the fee subject to a life estate. Thomas v. Black, 113 Mo. 70; 32 Cyc. 1337; Keyes v. Ketrick, 56 A. (R. I.) 770; Alley v. Alley, 91 S.W. 291. While plaintiffs could in all these cases have brought and maintained at an earlier period the very suit they did bring and maintain, the court held that so long as there was no adverse possession, as during the possession of the life tenants and his assigns, the statute did not run. (e) All this is because the Statute of Limitations as applied to land is essentially different than as applied to personal actions. In the latter case it acts on and bars the action only, while in land cases it extinguishes the title and vests it in another absolutely. Sherwood v. Baker, 105 Mo. 477; 25 Cyc. 997; Gardner v. Terry, 99 Mo. 523; Franklin v. Cummingham, 187 Mo. 196; Ridgeway v. Holliday, 59 Mo. 453; Harper v. Morse, 114 Mo. 317; Allen v. Mansfield, 108 Mo. 343. The remark made in Haarstick v. Gabriel, 200 Mo. 237, that a suit to quiet title would be governed by the ten-year Statute of Limitations was said in a case involving wild land not in possession of anyone and had no reference to land occupied by a life tenant whose occupancy could not be adverse to the remaindermen. The case of Gray v. Wood, 234 Mo. 291, was brought more than ten years after the enactment of our statute to determine title but the possession was that of a life tenant. (3) Defendants have been the owners of an undivided half or more in fee and the owners of the life estates in the other half. Life tenants cannot charge and recover from remaindermen for improvements placed thereon during the life estate. This is now settled in this State by Building & Loan Assn. v. Eveler, 237 Mo. 679, Frederick v. Frederick, 13 L.R.A.(N.S.) 514 and note; 16 Cyc. 631, and cases cited; Schorr v. Carter, 120 Mo. 409; Schaffner v. Schilling, 6 Mo.App. 42; Curtis v. Fowler, 33 N.W. 804; 15 Cyc. 225, note 71. (4) Liability of plaintiffs on ancestor's warranty. (a) The deed to the Barton county land in the Cooper and Jester cases, being a conveyance of "the right, title and interest" of grantors and containing words of quitclaim and a special warranty against claims under themselves only, is a quit claim only and neither binds anybody by warranty or passes after acquired title. 8 Am. & Eng. Ency. Law (2 Ed.), 71; 11 Cyc. 1059; 1 Jones, Real Prop. in Conveyancing, sec. 992, p. 779; Tiedeman, Real Prop., sec. 728, p. 553; Butcher v. Rogers, 60 Mo. 138; Valle v. Clemens, 18 Mo. 486; Bogy v. Shoab, 13 Mo. 366; Gibson v. Choteau, 39 Mo. 536; Moore v. Harris, 91 Mo. 616; Ford v. Unity Church, 120 Mo. 498; Brawford v. Wolfe, 103 Mo. 391; Wilson v. Fisher, 172 Mo. 10; Stoepler v. Silberg, 220 Mo. 258; Waldermeyer v. Loebig, 222 Mo. 450; McDonough v. Martin, 88 Ga. 675, 18 L.R.A. 343; White v. Stewart, 62 S.E. 590; McNear v. McComber, 18 Iowa 12; Young v. Clippinger, 12 Kan. 148; Allen v. Holten, 37 Mass. 458; Ballard v. Child, 46 Me. 152; Laville v. Rightor, 17 La. 303; Second Univ. Soc. v. Dugan, 65 Md. 460; Hull v. Hull, 29 Am. St. 800; Bumpass v. Anderson, 51 S.W. 1103; Hall v. Chaffee, 14 N.H. 215. Johnson v. Johnson, 170 Mo. 34, recognizes this doctrine but holds that words showing source of title are surplusage and will not restrict the grant. (b) Three of the grantor life tenants were married women -- Mrs. Harwell, Mrs. Adams and Mrs. Armor -- at the time of executing the deeds in question and at the time of so doing and until Act of 1905, p. 40, by express statute no covenant of a married woman would bind her or her heirs except to convey her then interest. She and her heirs were not bound by her covenants of warranty nor would her warranty deed convey any after acquired title. R.S. 1879, sec. 669; Bank v. Robidoux, 57 Mo. 446; Brawford v. Wolfe, 103 Mo. 391; Hendricks v. Musgrove, 183 Mo. 300; Ford v. Unity Church, 120 Mo. 498; Wilson v. Fisher, 172 Mo. 10; 21 Cyc. 1324, 1325; Cockrill v. Hutchinson, 135 Mo. 74; Crenshaw v. Creek, 52 Mo. 98. (c) By our statute heirs are liable on the covenants of their ancestors to the extent of assets descended to them. R.S. 1879, sec. 3944; R.S. 1909, sec. 2875. At common law and prior to the amendment of our statute in 1879 a devisee was not so liable. 8 Am. & Eng. Ency. Law (2 Ed.), 162, note; Bartlett v. Ball, 142 Mo. 28; Sauer v. Griffin, 67 Mo. 654; Keen v. Watson, 39 Mo.App. 172; Bartlett v. Tinsley, 175 Mo. 319; Hunt v. Lucas, 68 Mo.App. 525; Walker v. Deaver, 79 Mo. 677. A living person has no heirs and so the children of Mrs. Adams and Mrs. Armor cannot be liable. (d) Nor is anyone made liable on the covenants of the ancestor by...