Bradley v. Missouri Pacific Railway Co.
| Decision Date | 21 March 1887 |
| Citation | 4 S.W. 427,91 Mo. 493 |
| Parties | Bradley et al. v. The Missouri Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. -- Hon J. P. Strother, Judge.
Affirmed.
W. S Shirk, T. G. Portis and T. J. Portis for appellant.
(1) Prior to the passage of section 3295, Revised Statutes, 1879 a tenant, by the curtesy, could, by conveying to another his interest as such tenant, create a particular estate in another, during the continuance of which the wife had no right of entry or of action. But the conveyance from Argillon Price, which was, also, signed and acknowledged by Lucy A Price, was not intended to create any such particular estate, and did not create it. That conveyance, upon its face, shows that it was not the intention of Argillon Price to create any such particular estate, but, to the contrary, that it was the sole intention of both Argillon Price and Lucy A. Price to convey the legal title of Lucy A. Price. She signed the deed and acknowledged it, July 22, 1853, and Argillon Price acknowledged it, September 14, 1853. Being signed, sealed, and acknowledged, by her, it should be held to convey her estate. Elliott v. Sleeper, 2 N.H. 525; Burge v. Smith, 27 N.H. 332; Woodward v. Searer, 38 N.H. 29; Armstrong v. Stovall, 26 Miss. 275; Stone v. Montgomery, 35 Miss. 107; Mead v. Billings, 10 Johns. 99; Ingoldsby v. Juan, 12 Cal. 564; Deutzel v. Waldie, 30 Cal. 138. (2) But if it be held that the deed is inoperative to convey the wife's estate, by reason of the wife not being named as a grantor therein, still we contend that it did not have the effect of passing his interest, as tenant by the curtesy, and creating a particular estate in Edwards. This case does not come within the rule that, if a tenant by the curtesy attempts to convey the fee-simple by warranty deed, such deed, while not amounting to a conveyance of the fee, will yet convey the life estate of the tenant by the curtesy. Here, there was no attempt on the part of Argillon Price to convey the fee. He simply joined in what he supposed was his wife's deed, to enable her to convey her fee. (3) When Edwards took possession, in 1853, under this so-called conveyance, a cause of action, or right of entry, accrued to Lucy A. Price, although she was a married woman, and plaintiff is, therefore, barred by the statute of limitations. Valle v. Obenhause, 62 Mo. 81; Gray v. Yates, 67 Mo. 601; Dyer v. Brannock, 66 Mo. 391. (4) Defendant acquired, from the holder of the life estate, the right to construct its roadbed over the land in controversy, and, having entered rightfully, ejectment will not lie at the suit of the remainderman, or reversioner, after the life estate has ceased. Mills on Em. Dom., sec. 73; Austin v. Rutland, 45 Vt. 215; Kanaga v. Railroad, 76 Mo. 207. (5) Plaintiff's ancestor, Lucy A. Price, after the removal of her disabilities, was guilty of laches, and the plaintiffs, her heirs, were, likewise, guilty of laches in asserting their rights in the premises, to the great injury and prejudice of defendant. Andrews v. Farmers, etc., 22 Wis. 288. Entry by the railroad company, under the deed from the tenant by the curtesy, Argillon Price, was equivalent to an entry by it, with leave of a former owner, and this case is fully within the reasoning and conclusions reached in the following cases: Provolt v. Railroad, 57 Mo. 256; S. C., 69 Mo. 633; Baker v. Railroad, 57 Mo. 265; Pettibone v. Railroad, 14 Wis. 443; Goodwin v. Railroad, 18 Ohio St. 169; Hentz v. Railroad, 18 Barb. [S. C.] 647; Harlow v. Railroad, 41 Wis. 336; Attorney General v. Railroad, 9 C. E. Green, 49; Peckert v. Railroad, 10 C. E. Green, 316; Railroad v. Turner, 31 Ark. 494.
G. P. B. Jackson for respondents.
(1) The deed to Edwards did not convey the interest of Lucy A. Price in the land. It did not purport to be her deed; her name nowhere appears in it. By its terms, it is the deed of Argillon Price alone, and the signing by his wife, Lucy A. Price, was a nugatory act. Whitley v. Stewart, 63 Mo. 360; Thornton v. Bank, 71 Mo. 231. Even if it had been intended to be her deed, it was a nullity, because it was not properly acknowledged. The certificate does not state that Lucy A. Price, wife of Argillon Price, was examined separate and apart from her husband, nor that she executed the deed without "undue influence" of her husband. Wannell v. Kem, 57 Mo. 478; Bartlett v. O'Donoghue, 72 Mo. 563; Hurd v. Taubman, 79 Mo. 101; Hoskinson v. Adkins, 77 Mo. 540. (2) That deed had the effect to transfer the interest of Argillon Price. He was entitled to curtesy, and when that deed was made, in 1853, he could convey his interest. Reaume v. Chambers, 22 Mo. 36; Bryan v. Wear, 4 Mo. 106; Beal v. Harmon, 38 Mo. 435; Allen v. Ranson, 44 Mo. 266. (3) Under that deed, Edwards and his assigns took an estate during the life of Argillon Price; and during his life, neither his wife nor her heirs could maintain an action for the possession of the land. Their cause of action did not accrue until the termination of the life estate -- that is, until the death of Argillon Price -- in April, 1875. Dyer v. Brannock, 66 Mo. 391, 422; Embree v. Patrick, 72 Mo. 173; Reaume v. Chambers, 22 Mo. 36, 52; Miller v. Bledsoe, 61 Mo. 96. (4) As the plaintiffs' cause of action did not accrue until the death of Argillon Price, the statute of limitations did not begin to run until that time -- April, 1875 -- and this suit, commenced in December, 1881, is not barred. Authorities under point three. (5) Ejectment is the proper remedy against this defendant. The railroad company acquired no greater right than its grantor had, and that was an estate for the life of Argillon Price; it took as an ordinary purchaser; there is no condemnation, nor is there a single element of estoppel in the case. Walker v. Railroad, 57 Mo. 275; Evans v. Railroad, 64 Mo. 453; Armstrong v. St. Louis, 69 Mo. 309; Sherman v. Railroad, 40 Wis. 645; Gilman v. Railroad, 40 Wis. 653; Lyon v. Railroad, 42 Wis. 538; Daniels v. Railroad, 35 Iowa 129; Railroad v. Payne, 37 Miss. 700; Railroad v. Hopkins, 90 Ill. 316, 322; Smith v. Railroad, 67 Ill. 191. Condemnation proceedings against the owner of a life estate do not affect the title or rights of the remainderman, and he may maintain ejectment. Railroad v. Smith, 78 Ill. 98. The deed of the owner of the life estate should have no greater effect than the condemnation against him. (6) In this state, no entry upon land, for the purpose of constructing a railroad, prior to the actual payment of the damages, can be justified. Walther v. Warner, 25 Mo. 277.
This is an action of ejectment. The land sued for is used and occupied by the defendant as a right of way, and for side tracks, and depot purposes, at Smithton station, in Pettis county. The eighty acres, of which the land in question is a part, was patented to Lucy A. Price. In 1853, her husband, Argillon Price, conveyed the same to Edwards, who conveyed the same to Combs, in 1857, and the latter conveyed the land in question to the Pacific Railroad Company, in 1860, and by virtue of various deeds, the defendant has acquired the title of that company. Edwards and Combs had continuous possession of the eighty acres under their deeds from 1853 to 1860. At the latter date the Pacific Railroad took possession of the land in question, and it and those claiming under it, have ever since used and possessed the property for the purposes before stated. Argillon Price died in April, 1875; Lucy A., his widow, died in April, 1877. The plaintiffs are their heirs, and this suit was begun in December, 1881.
1. The ground of this controversy lies in the fact that the deed to Edwards purports to be the deed of Argillon Price, only. The name of Lucy A. Price does not appear in the body of it, nor is there anything in the body of the deed to show that he was a married man. It concludes, "In testimony whereof I have hereunto set my hand and seal," etc. The deed, however, is signed by her and her husband, and acknowledged by her on the twenty-second of July, 1853, and by him on the fourteenth of September, 1853. The wife, as will be seen, owned the property in her own right, and the fact that she signed her name to the deed, and acknowledged it before a proper officer, does not make it her grant. The party in whom the title is vested must use appropriate words to convey the estate. Signing, sealing, and acknowledging a deed by the wife, in which her husband is the only grantor, will not convey her estate. Whiteley v. Stewart, 63 Mo. 360; Agricultural Bank v. Rice, 45 U.S. 225, 4 HOW 225, 11 L.Ed. 949; City of Cincinnati v. Newell, 7 Ohio St. 37. Whether it would be sufficient to release her dower in her husband's estate, we do not determine.
2. This deed was made prior to the passage of the statute which now appears in the Revised Statutes of 1879, as section 3295, and the effect of the deed must, therefore, be determined without regard to that statute. Mr. Price was a tenant by the curtesy, and though the deed was ineffectual to convey the estate of his wife, still it operated as a conveyance of his life estate. Reaume v. Chambers, 22 Mo. 36; Beal v. Harmon, 38 Mo. 435; Allen v. Ranson, 44 Mo 263. Although the defendant and those under whom it claimed, have had actual possession since 1853, a period of nearly twenty-eight years, still that possession commenced with the date of the deed of Mr. Price, which, as we have seen, conveyed his life estate. During his life, Mrs. Price could not have maintained an action for the possession of the property. Reaume v. Chambers, 22 Mo. 36; Miller v. Bledsoe, 61 Mo. 96; Roberts v. Nelson, 87 Mo. 229. No cause of action accrued to her until her husband's death, and until that event the...
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