C. M. Smith Brothers Land & Investment Company v. Phillips
| Decision Date | 23 July 1921 |
| Parties | C. M. SMITH BROTHERS LAND & INVESTMENT COMPANY v. MARTHA C. PHILLIPS and THOMAS MILAS PHILLIPS, Appellants |
| Court | Missouri Supreme Court |
BROWN C. Ragland and Small, CC., concur.
Two appeals were taken in this case and separately docketed for hearing in this court. The first of these, ante page 579, was taken by plaintiff, who sued in ejectment, from a judgment denying it the relief asked, and this is an appeal by the defendant Martha C. Phillips from the judgment dismissing a cross petition filed by her asking equitable relief against the plaintiff. It asked no relief against her co-defendant, Thomas Milas Phillips, and no issue between the two defendants was presented by the pleadings.
We have held in a separate opinion considering the matters involved in the plaintiff's appeal, that it had no cause of action and affirmed the judgment of the circuit court to that effect, and will not reconsider any matter so determined in passing upon the single question presented by this appeal namely, the right of the appellant to the affirmative relief sought by her in her cross petition. In all other respects the holdings of the court as expressed in that opinion are equally conclusive as to all the parties to these appeals.
The suit is plain ejectment, and the petition is in the conventional form, charging both defendants alike with possession of the premises. At the trial plaintiff claimed through a conveyance executed by this appellant April 8 1898, to the Smith brothers, its predecessors in title, conveying her "life interest" in the eighty acres of land in question as the widow of James J. Phillips, who died intestate in 1895 while domiciled upon the land with his wife and their minor children. The appellant having remarried August 8, 1903, and no dower having been assigned, the plaintiff claimed all right to the possession which appellant, but for her conveyance, would have had as doweress by virtue of her statutory quarantine, and not otherwise. We held, in considering the plaintiff's appeal, that more than ten years having elapsed after the death of appellant's husband and her remarriage on August 8, 1903, and the institution of this suit, the plaintiff was barred of recovery upon that title by the terms of the special Statute of Limitations relating to the recovery of dower.
This holding put the plaintiff out of the case. It was founded upon the theory that appellant's conveyance was valid and sufficient to transfer all her interest as doweress which might spring from her subsequent remarriage, and that those interests had become forfeited by its inaction.
The appellant, by her cross action now under consideration, undertakes to present a theory not involved in the plaintiff's appeal. She asserts, with much force and detail, that her conveyance to Smith brothers through whom plaintiff claims, was void for fraud perpetrated upon her by the grantees in its procurement, and that she, having been in possession adverse to plaintiff's claim through her deed was not barred by the Statute of Limitations from presenting it as a defense when that possession should be attacked. In other words she contends, as we understand, that the deed being void for fraud she was not bound to act upon the presumption that the holders intended to enforce it, but might rest upon the assurance of their honest recognition, by inaction, of her right. Without questioning the general rule that matters barred by the Statute of Limitation as ground of recovery may nevertheless be used as weapons of defense in...
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