Bledsoe v. Simms

• Citation: 53 Mo. 305
• Parties: LEWIS S. BLEDSOE, Appellant, v. EDWARD W. SIMMS, Respondent.
• Decision Date: 31 August 1873
• Court: United States State Supreme Court of Missouri

53 Mo. 305

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.

ADAMS, Judge, delivered the opinion of the court.

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 title. He also set up, that his possession was prior to the defendant's possession, and had never been abandoned, and being a prior possession, his title was better than a subsequent possession by the defendant, although neither of them may have ripened into a title under the statute of limitations.

A large amount of testimony was given by plaintiff, conducing to prove his possessory title under the statute of limitations.

The defendant claimed the right to the possession by virtue of a deed from one James Kelley to the defendant's wife, dated August 10th, 1866.

There was no pretense that Kelley had any title to the land, and the deed from Kelley was introduced as color of title, under which the defendant took possession for his wife. For the same purpose, a deed from one Taggart to Kelley, dated Nov. 16, 1863, and a deed from W. Z. Darr to Taggart, and a tax deed to Darr, dated Nov. 5th, 1861, were introduced in evidence by the defendant.

This suit was commenced in July, 1868. The defendant ntered into the possession on the 10th day of August, 1866, nder the deed to his wife.

The case was submitted to a jury, and under the instructions given on each side they found a verdict for the defendant. The plaintiff moved for a new trial, which was overruled, and udgment entered for defendant, and exceptions duly saved by the plaintiff.

1. The defendant's answer was sufficient to let in any defense he might have, showing that the plaintiff was not entitled to the possession. Under the general denial of the plaintiff's right to the possession, he must prove his title, or right to the possession, and the defendant may rebut this proof by showing title in himself or his wife, or by an outstanding title in a third person, when he claims under a...