Arnold v. Willis
| Decision Date | 12 April 1895 |
| Citation | 30 S.W. 517,128 Mo. 145 |
| Parties | Arnold v. Willis et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Linn Circuit Court. -- Hon. W. W. Rucker, Judge.
Affirmed.
J. A Arbuthnot and A. W. Mullins for appellants.
(1) Notwithstanding the married women's statutes in this state, the husband is still, it may be conceded, entitled to the possession of his wife's real estate as at common law, and may sue in ejectment therefor. Bledsoe v Simms, 53 Mo. 305; Cooper v. Ord, 60 Mo. 420; Kanaga v. Railroad, 76 Mo. 207; Wilson v Garaghty, 70 Mo. 517; Dyer v. Wittler, 89 Mo. 81; Peck v. Lockridge, 97 Mo. 549; Flesh v. Lindsay, 115 Mo. 1. (2) If, therefore, the plaintiff had the right to the possession of the real estate claimed by him in the petition and the sole right to maintain the action for the recovery of the possession, such rights accrued upon the death of Mrs. Sarah Ricker, the mother of plaintiff's wife, and this occurred more than ten years prior to the commencement of the action. Under the evidence his action was barred. The general rule is that the statute of limitations will commence running in favor of an adverse possession from the date of the accrual of a right to dispossess by action the adverse possessor. Gray v. Givens, 26 Mo. 291; Tapley v. McPike, 50 Mo. 589. Wood on Limitations of Actions, 254. And the interest of the husband in the real estate to which the fee simple title is held by his wife, being the right of possession, is an interest separate from hers, and "such being the case, it would seem logically to follow that his is an interest in land which is subject to the statute of limitations, and will pass to one who holds it adversely for the prescribed period" of the statute of limitations. Indeed the decisions of the courts of last resort have so held with such uniformity and for such length of time that the doctrine has become elementary. Wood on Limitation of Actions, sec. 240, pp. 480-481; Schouler on Husband and Wife, sec, 168, p. 212; 14 Am. & Eng. Encyclopedia of Law, p. 657; Neal v. Robertson, 2 Dana (Ky.), 86; Canby v. Porter, 12 Ohio 79; Murdock v. Johnson, 7 Cold. (Tenn.), 605; Thompson v. Green, 4 Ohio St. 216; Shortall v. Hinckley, 31 Ill. 219; Kibbie v. Williams, 58 Ill. 30; Weisinger v. Murphy, 2 Head (Tenn.), 674; Carter v. Cantrell, 16 Ark. 154; Greggs v. Tesson, 1 Blackf. (Ind.), 150; McDowell v. Potter, 8 Penn. St. 189; Dyer v. Wittler, 89 Mo. 81, 89; Valle v. Obenhause, 62 Mo. pp. 97, 98, per Judge Hough; Peck v. Lockridge, 97 Mo. 549. (3) The declarations of Law asked by the defendants should have been given. They are the law applicable to the case, and well justified by the evidence. Peck v. Lockridge, 97 Mo. 549.
C. C. Bigger for respondent.
(1) The plaintiff had no right of entry upon the premises in question, nor could he maintain an action to recover possession thereof until the termination of the life lease given by John W. Ricker to his mother, Sarah Ricker, by the death of the latter, which occurred, as the evidence tended to show, in 1884, from which date to the time of bringing this suit, was a period of time less than ten years. (2) The property in question descended to Martha Arnold in 1870, at which time she was the wife of plaintiff, which marriage relation has been continued to the present time, as is shown by the evidence; and it seems to be the settled law of this state that the statute of limitations does not run against a married woman during coverture, but she may maintain her action, to recover her real estate, at any time within ten years after dissolution of the marriage relation. Dyer v. Wittler, 89 Mo. 81; Bradley v. Railroad, 91 Mo. 493. (3) In this state, by the enactment of section 14, chapter 115, General Statutes of 1865, the husband is deprived, during coverture, of the separate interest which at common law he had in the wife's general real estate, as that statute is a disabling statute. Under the provisions of that statute he is still entitled to the possession of his wife's realty and has a joint interest with her therein, but he can not, by his sole deed, make a valid conveyance of any interest in the same. He has the right and is the proper party to maintain an action to recover possession of his wife's lands, and can not divest or estop himself from the exercise of this right by his sole deed. What he can not do by deed he can not do by his acts in pais. Hence, conceding that a period of ten years or more has elapsed since the termination of the life lease to Sarah Ricker, by her death and before the bringing of this suit, yet the statute of limitations passes no interest to defendants by reason of plaintiff's inaction, for if he could by his inaction convey to defendants his interest in the premises in question, then he had it in his power to "set at naught and nullify the provisions of the statute. G. S. 1865, ch. 115, sec. 14; R. S. 1879, sec. 3295; R. S. 1889, sec. 6868; 3 Washburn on Real Property, 77; Mueller v. Kaessmann, 84 Mo. 318; Dyer v. Wittler, 89 Mo. 81.
Ejectment for an undivided one fourth interest in the south half of lots 11 and 12 in block 4, in the original city of Brookfield, Missouri. The petition is in the usual form, and the answer a general denial.
Both parties claim title under one John W. Ricker, who, on the twenty-eighth day of April, 1868, leased in writing said premises to his mother, Sarah Ricker, for and during the term of her natural life. John W. died June 18, 1870, childless and unmarried, leaving as his only legal heirs his mother, Sarah Ricker, his brother, Wilder D., his sister, Mary, who afterward married one Lansing, and Martha Arnold, the wife of the plaintiff. The lease from John W. Ricker to his mother, although recorded in Linn county, was not acknowledged.
On December 17, 1873, Mrs. Ricker, by general warranty deed of that date, sold and conveyed the property, as the "sole and only heir at law of John W. Ricker, deceased," to Mrs. Mary J. Spivey. Her son, Wilder D., and daughter, Mary Lansing, joined in said deed. Mrs. Spivey immediately thereafter entered into the possession of said property, and so remained until September 10, 1884, when she sold and conveyed it by deed of general warranty to the defendant, Mrs. Willis, who has been in the actual, open, notorious and adverse possession ever since, paying taxes and making valuable improvements. She first heard of plaintiff's claim in January, 1893. Mrs. Ricker, it seems, died sometime during the year 1884.
The case was tried before the court without a jury, and it is evident from the declarations of law given in behalf of plaintiff and those asked by defendants, which were refused, that the court tried the case on the theory that the plaintiff, in right of his wife, was entitled to the possession of the premises sued for, and that as to him the action was not barred by the statute of limitations. The court rendered judgment for plaintiff, hence this appeal.
Plaintiff's right to the possession of the interest of his wife in the lots accrued at the death of her mother, Mrs. Ricker, which terminated the lease from her son, John W., to her. As to when this occurred the evidence was very unsatisfactory, but some time, it seems, about the year 1884. When it did transpire, plaintiff, by virtue of his marital rights under the statute then in force, became entitled to the possession of the lots, his wife having the title in fee simple, and not as separate property, and he had the right to sue therefor in his own name. Mueller v. Kaessmann, 84 Mo. 318, and authorities cited; Bledsoe v. Simms, 53 Mo. 305; Wilson v. Garaghty, 70 Mo. 517; Flesh v. Lindsay, 115 Mo. 1, 21 S.W. 907.
By section 6869, Revised Statutes, 1889, it is provided that all real estate and personal property belonging to any married woman, together with all...
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