Case v. Sipes

• Citation: 217 S.W. 306,280 Mo. 110
• Parties: WILLIAM H. CASE et al. v. HARRY SIPES et al., Appellants
• Decision Date: 04 December 1919
• Court: United States State Supreme Court of Missouri

217 S.W. 306

280 Mo. 110

WILLIAM H. CASE et al. v. HARRY SIPES et al., Appellants

Supreme Court of Missouri, Second Division

December 4, 1919

Appeal from Buchanan Circuit Court. -- Hon. Thomas B. Allen, Judge.

Affirmed.

Booher & Williams and P. C. Breit for appellant.

(1) The general rule is that whenever the right of action in a trustee who is vested with the legal title and is competent to sue is barred by limitations, the right of the cestui que trust is also barred, and this rule applies whether the cestui que trust be sui juris, or under disability during the period of limitations, or whether entitled to possession, or in remainder, it being held to be immaterial whether the remainder be vested or contingent. 25 Cyc. 1010; Walton v. Ketchem, 147 Mo. 209; Chase v. Cartright, 53 Ark. 358; Meeks v. Olpherts, 100 U.S. 564, 25 L.Ed 735; Schiffman v. Schmidt, 154 Mo. 204, 213; Edwards v. Woolfolk, 17 B. Mon. (Ky.) 376; Ewing v. Shannahan, 113 Mo. 188. Statutes of Limitation are looked upon with favor. Investment Co. v. Curry, 264 Mo. 497. (2) The deed from McGlothan to Terrell, in trust for the use and benefit of Frances Case and the heirs of her body, conveyed the legal title to the land in dispute to John Terrell as trustee, and she being a married woman and the heirs of her body unknown and not ascertained, the Statute of Uses did not execute the trust but the legal title remained in the trustee. Case v. Goodman, 250 Mo. 112; Walton v. Ketchem, 147 Mo. 209; Simpson v Jennings, 163 Mo. 332; Simpson v. Erisner, 155 Mo. 164; Tiedeman, Real Property, secs. 461, 466, 469, 470; Ewing v. Shannahan, 113 Mo. 188. (3) When the Statute of Limitations has run against the trustee who has the legal title and the sole right to sue for possession the cestui que trust is also barred. Walton v. Ketchem, 147 Mo. 209; Ewing v. Shannahan, 113 Mo. 188; Schiffman v. Schmidt, 154 Mo. 204; Simpson v. Erisner, 155 Mo. 157; Edwards v. Woolfolk, 17 B. Mon. (Ky.) 376; Meeks v. Olpherts, 100 U.S. 564. (4) When the Statute of Limitations once begins to run there can be no tolling or exceptions, except as provided by statute. DeHatre v. Edwards, 200 Mo. 267, 279; Investment Co. v. Curry, 264 Mo. 497; Turnmire v. Claybrook, 204 S.W. 178, 180; Smeiser v. Meier, 271 Mo. 187; Shaffer v. Detie, 191 Mo. 394; Schiffman v. Schmidt, 154 Mo. 204; Pim v. City of St. Louis, 122 Mo. 665; Rogers v. Brown, 61 Mo. 195; Landers v. Perkins, 12 Mo. 238; Dice v. Hamilton, 178 Mo. 88. (5) The statute began to run against the trustee February 17, 1880, and as he is barred so are the beneficiaries under the deed. Walton v. Ketchem, 147 Mo. 209; Ewing v. Shannahan, 113 Mo. 201; Schiffman v. Schmidt, 154 Mo. 204; Investment Co. v. Curry, 264 Mo. 497. (6) The court committed error in admitting the abstract of record of Case v. Goodman, for purpose of showing that defendant claimed under the trustee. Porter v. Gaines, 151 Mo. 560; St. Louis Public School v. Risley, 28 Mo. 415. (7) Defendants have the right to rely upon as many defenses as they may have and if one title fails they may stand on another. Porter v. Gaines, 151 Mo. 560; St. Louis Public School v. Risley, 28 Mo. 415; Lewis v. N.Y. Life Ins. Co., 209 S.W. 632.

Duvall & Boyd and E. L. Moore for respondents.

(1) The McGlothing deed created a life estate in Frances Case, with remainder to the heirs of her body. Under our Statute of Uses the use would have become executed at once, if she had not been a married woman; that kept it from becoming executed. Case v. Goodman, 250 Mo. 114. But "Upon the death of the husband the trust terminates, and the legal title is then executed in the wife by the Statute of Uses." 2 Washburn (5 Ed.), 500; Roberts v. Moseley, 51 Mo. 286; Pitts v. Sheriff, 108 Mo. 116; O'Brien v. Ash, 169 Mo. 283; Stark v. Kirchgarber, 186 Mo. 642. (2) The remaindermen do not take from the life tenant, but from the original grantor. And therefore nothing the life tenant or her trustee could do would affect them. Frances Case died in 1907, less than ten years before this suit was brought, and therefore these remaindermen, her bodily heirs, could not be barred. They had no cause of action till her death. Hall v. French, 165 Mo. 442; Charles v. Pickens, 214 Mo. 215; Armor v. Frey, 253 Mo. 474; De Lashmutt v. Teetor, 261 Mo. 447; Lewis v. Barnes, 272 Mo. 406. Terrell was not trustee for the remaindermen; he was trustee for the life tenant only, because she was a married woman. Roberts v. Moseley, 51 Mo. 286; Glasgow v. Foundry Co., 229 Mo. 593; Speed v. Railroad, 163 Mo. 129. (3) Having claimed under the trustee's deed once, and thereby acknowledged that they had full knowledge of his breach of trust in making it, appellants are now precluded from denying that knowledge and escaping the penalty of that reliance. Coney v. Laird, 153 Mo. 408; Elliott v. Machine Co., 236 Mo. 561; Ogden v. Auer, 184 S.W. 72; Duckett v. Dry Goods Co., 99 Mo.App. 444; Canada v. Daniel, 175 Mo.App. 68-69; Donnell v. Wright, 147 Mo. 647; Emmert v. Aldridge, 231 Mo. 129; Armor v. Frey, 253 Mo. 475. "Where a person has taken possession of or exercised acts of ownership over property under claim of title or right he is estopped to set up a claim inconsistent wth that under which he has acted. Thus a person is estopped from setting up an invalidity in the title under which he has had possession and exercised acts of ownership." 16 Cyc. 803; Railroad v. Lindell's Heirs, 39 Mo. 345; Boettger v. Roehling, 74 Mo.App. 265; Bank v. Totten, 114 Mo.App. 104.

RAILEY, C. White and Mozley, CC., concur.

OPINION

RAILEY, C.

This is an action of ejectment, brought by plaintiffs in the Circuit Court of Andrew County, Missouri, on September 26, 1914, to recover possession of the northeast quarter of the southwest quarter of Section 24, Township 60, Range 35, located in said county. Defendant Harry A. Sipes was the tenant in possession under the other defendants, and disclaimed any interest in the land. Mrs. Candice Leach, prior to her marriage with Thomas Leach, was the widow of Frederick Yenni, and aside from Snipes, the other defendants are her children.

The answer of defendants, with part of the same stricken out by the trial court, left practically a general denial, and an assertion of title in defendants, by adverse possession under the Statute of Limitations.

The case was transferred to Buchanan Circuit Court, on the application of plaintiffs, and tried before the court without a jury and without instructions. The trial court found that plaintiffs Wm. H. Case, Samuel J. Case and Mary I. Case are the legal owners of and entitled to the possession of an undivided three-fourths interest, in and to said land, and that the plaintiff Wakefield Elliott is the owner of and entitled to the possession of an undivided 7/32 interest in and to said lands, etc. Judgment, in due form, was rendered for respondents.

The evidence, and such other matters as may arise upon an inspection of the record, will be considered in the opinion.

Appellants, in due time, filed their motion for a new trial, which was overruled and the cause appealed by them to this court.

I. As this is an action at law, and tried without instructions, the judgment of the trial court, if sustained by substantial evidence, is conclusive against appellants here, unless reversible error has been committed in the admission or rejection of testimony. [Bingham v. Edmonds, 210 S.W. 885, 886, and cases cited; Boas v. Branch, 208 S.W. 75; Walker v. Roberts, 204 S.W. 18; Roloson v. Riggs, 274 Mo. 522, 203 S.W. 973; January v. Harrison, 199 S.W. 935; In re Lankford Estate, 272 Mo. 1, 197 S.W. 147.] It, therefore, becomes necessary to consider the evidence, in connection with the law questions presented, in passing upon the foregoing question.

It was admitted at the trial that the title to the forty acres in controversy emanated from the United States Government, by patent, dated the first day of March, 1846, to Harrison McGlothling, of Andrew County, Missouri. On July 15, 1843, the above patentee conveyed said land to John Terrell, of Savannah, Missouri, in trust, for the use and benefit of Frances Case, his sister-in-law, and the heirs of her body. The after-acquired title of the patentee passed to the trustee. [Wood v. Smith, 193 Mo. 484, 91 S.W. 85; Organ v. Bunnell, 184 S.W. 102, and cases cited.] At the date of delivery of said trust deed, Frances Case was married, and her husband died in 1887. She died in November, 1907.

On June 25, 1855, the above named John Terrell, as trustee, conveyed said real estate to William Brown, for the expressed consideration of $ 400. There was no power of sale given to the trustee in the foregoing deed, nor does it contain any words creating an active trust. The deed from McGlothling to Terrell, as trustee, conveyed an estate in trust for Frances Case during her life, and cast the estate at her death, to the heirs of her body, as remaindermen. [Section 2872, R. S. 1909; Reed v. Lane, 122 Mo. 311, 26 S.W. 957; Utter v. Sidman, 170 Mo. 284, 285, 70 S.W. 702; Miller v. Ensminger, 182 Mo. 195, 81 S.W. 422; Charles v. White, 214 Mo. 187, 112 S.W. 545; Cox v. Jones, 229 Mo. 53, 129 S.W. 495; Elsea v. Smith, 273 Mo. 396, 412, 202 S.W. 1071.]

On February 7, 1908, respondents filed a suit in ejectment in the Circuit Court of Andrew County, Missouri, against these same appellants and Wm. J. Goodman, the tenant of defendants, to recover possession of the land in controversy here. Defendants answered in said cause with a general denial. On November 17, 1908, the trial court found the issues for defendants in the above cause, and plaintiffs therein appealed the case to this court. It is reported in 250 Mo. 112 et seq.

The abstract of record filed in the above case,...