Caho v. Endress

• Decision Date: 31 October 1878
• Citation: 68 Mo. 224
• Parties: CAHO et al., Plaintiffs in Error, v. ENDRESS.
• Court: Missouri Supreme Court

68 Mo. 224

CAHO et al., Plaintiffs in Error,

v.ENDRESS.

Supreme Court of Missouri.

October Term, 1878.

Error to Perry Circuit Court.--HON. LOUIS F. DINNING, Judge.

This is an action of ejectment brought by Mary Caho and Henry Caho, her husband, to recover a tract of land in Perry county. The land originally belonged to Mrs. Caho, but in February, 1871, she and her husband conveyed it to defendant, Endress. At the time of making this conveyance she lacked a few days of being twenty-one years of age. This suit was brought upon the theory that she was not then of full age for the purpose of executing a deed, and had a right to avoid this conveyance. The court below, however, ruled otherwise, and gave judgment for the defendant. From this judgment plaintiffs appealed.

B. B. Cahoon for plaintiffs in error.

J. C. Killian for defendant in error.

NAPTON, J.

The principal question in this case is whether a married woman can avoid a deed for her real estate, made by her and her husband, when she was over eighteen and under twenty-one years of age.

That the infancy of a married woman will make her deed voidable, notwithstanding its execution in the form prescribed by our statute in regard to privy examination, is well settled by the uniform decisions of this court from the case of Youse v. Norcom, 12 Mo. 549. down to the latest decision on the subject. Peterson v. Laik, 24 Mo. 541; Schneider v. Staihr, 20 Mo. 271; Baker v. Kennett, 54 Mo. 83; Huth v. Carondelet M. R. & D. Co., 56 Mo. 208. This appears to be also well established elsewhere, and Chancellor Walworth, in Sandford v. McLean, 3 Paige 117, explains the reason of the distinction. “The statute,” says the Chancellor, “which makes valid the deed of a femme covert when executed with her husband, and acknowledged by her on a private examination, was never intended to sanction or validate a conveyance by an infant wife. There is a plain and obvious distinction between the disability of a coverture and that of infancy. The first arises from a supposed want of will on account of legal power and coercion which the husband may exercise over the volition of the wife. This disability is removed by the private examination of the wife in the absence of her husband, by which it is legally ascertained that such power and coercion has not been exercised in that particular case. But the disability of infancy arises from the supposed want of capacity and judgment in the infant to contract understandingly.” See also Hoyt v. Swar, 53 Ill. 134.

The only question then is, whether the disability of infancy existed in this case, and it must be conceded that the determination of the question is involved in difficulties, considering the various statutes that have been passed and the necessity of reconciling them as far as possible. The first section of the act “concerning curators, guardians and wards” in the revised code of 1865, declares that, “males of the age of twenty-one years, and females of the age of eighteen years shall be considered of full age for all purposes, and until these ages are attained they shall be considered minors.” Giving the words “for all purposes” a literal interpretation, it would seem without further examination that but one conclusion could be reached; but it is evident from an examination of other acts in the same code that these words must be restricted to some extent. The fourth section of the statute of limitations reads that “if any person entitled to commence any action in this chapter specified, or to make any entry, be, at the time such right or title shall first descend or accrue, either within the age of twenty-one years, or,” &c. This exemption from the operation of the statute obviously extends to females as well as males, and the period when it ceases is clearly the age of twenty-one without regard to sex. The first section of the act concerning guardians., &c., must then have a restricted meaning, so far as the statute of limitations is concerned, for this act uses the words twenty-one years, as equivalent to the attainment of majority in either sex, and the two statutes cannot be reconciled except by a restricted construction of the words “for all purposes” in the act concerning guardians, and I presume the Legislature had no intention of changing the old law in regard to limitations.

In the same code of 1865 is found a statute concerning wills, which,...