Clusky v. Burns
| Decision Date | 05 March 1894 |
| Citation | 25 S.W. 585,120 Mo. 567 |
| Parties | Clusky et al., Plaintiffs in Error, v. Burns |
| Court | Missouri Supreme Court |
Error to Greene Circuit Court. -- Hon. W. D. Hubbard, Judge.
Affirmed.
Wm. O Mead and Wm. R. Hudson for plaintiffs in error.
(1) The act of the general assembly of the state of Missouri entitled "an act for the benefit of the estate of James T. Williams, deceased," is void for the reason that it is in conflict with the constitution of the state of Missouri, and the constitution of the United States, in that it impairs the obligation of a contract by attempting to set at naught the will of James T. Williams by and through which plaintiffs derive title. Acts, 1849, p. 514; Constitution of Missouri, 1821, article 13, sec. 17; Constitution of the United States, article 1, sec. 10; Dartmouth College v Woodward, 4 Wheat. 518; Powers v. Bergen, 6 N.Y. 358. (2) The widow, Louisa Williams, took as a devisee under the will of James T. Williams, her husband, in lieu of dower and was therefore not only a purchaser in the technical sense of the terms, but for a valuable consideration. Dower is an estate of value. 2 Scribner on Dower [1 Ed.], t. p. 496, sec. 59; Howard v. Francis, 30 N.J.Eq. 444; Sykes v. Chadwick, 18 Wall. 141. The devisees of James T. Williams, deceased, took by purchase as much so as if it had been by deed or grant in the ordinary form. 3 Wash. on Real Property [4 Ed.], p. 4, sec. 3. (3) The act of March 10, 1849, is unconstitutional, for the reason that it would, if sustained, deprive the devisees of James T. Williams, deceased, of their property without due process of law, or law of the land. Constitution of Missouri, 1821, article 13, sec. 9; Clark v. Mitchell, 64 Mo. 564; Clark v. Mitchell, 69 Mo. 627; Hager v. District, 4 S.Ct. 663; Chauvin v. Valiton, 3 L. R. A. 194; Kuntz v. Sumpton, 2 L. R. A. 665; In re Gannon, 5 L. R. A. 359. (4) The legislature had no power to pass the act in question for the reason that it contravenes the terms and provisions of the will of Williams. He provided for a home for his widow and children and it was not for the legislature to say whether he had provided wisely or unwisely. Stewart v. Griffith, 33 Mo. 13; State ex rel. v. Adams, 44 Mo. 570; Brown v. Hummel, 47 Am. Dec. 431; Mosley v. Tuthell, 6 Am. Rep. 710. (5) As to the plea of the statute of limitation by the defendant it can not be made available as to the interest of Louisa, the widow, for the reason that at and before the date of the sale by Price, administrator, she was a married woman, the wife of Staples, and continued a married woman and wife of Staples until the twenty-eighth day of December, 1886, less than three years next before the commencement of this action. Dyer v. Witler, 89 Mo. 81.
Goode & Cravens for defendant in error.
(1) The right of plaintiffs is barred by the more than twenty-four years' adverse occupancy of the defendant and those under whom he claims. R. S., sec. 6767. (2) The sale by the administrator of the estate of James T. Williams, the ancestor of plaintiffs, pursuant to the special act of the general assembly, vested in the purchaser Jamison, under whom defendant claims, a fee simple title to the premises in controversy, to which title the defendant has succeeded. Wilkinson v. Leland, 2 Pet. (U.S.) 660; Rice v. Parkman, 16 Mass. 326; Carroll v. Lessee, 16 Ohio 251; Kibby v. Chitwood, 16 Am. Dec. 143; Stewart v. Griffith, 33 Mo. 13; Watts v. Brown, 44 Mo. 254; Gannett v. Leonard, 47 Mo. 206; Shipp v. Klinger, 54 Mo. 238; Thomas v. Pullis, 55 Mo. 211; Cargile v. Fernald, 63 Mo. 303; Dickens v. Carr, 84 Mo. 660; Kneass' Appeal, 31 Pa. St. 87. (3) In any case as the land was sold to pay debts and the proceeds applied to that purpose, the sale, even if void, would leave in defendant as the successor of the purchaser, an equity for reimbursement of the purchase money and money expended in improvements which would suspend plaintiff's right of recovery until this amount was paid. Henry v. McKerlie, 78 Mo. 416.
OPINION
This suit is ejectment to recover a parcel of real estate situate in the city of Springfield. The title to the property as shown by the evidence is as follows: James T. Williams died seized thereof in December 1846, leaving a will by which he bequeathed all his property to his wife and children, providing that his wife should have possession and control thereof, except as to certain property in Neosho which he directed should be sold, and the proceeds used in the payment of his debts, or invested. The will then provided that should it become necessary to sell property for the purpose of paying debts "the house and lot on which I now live shall be reserved to the last, and the two negro girls, Matilda and Eliza, next to the last; the whole of my property to remain in the possession of my wife during her widowhood for the support of herself and children." The house and lot on which testator lived included the property in controversy. The testator left surviving him his wife and four children, Mary, born in September, 1840; Ellen, born in June, 1842; Virginia, born in December, 1845; and Tully, born May 2, 1844. Virginia died November 17, 1847. Mary married William B. Crane November 23, 1856, and died leaving one child. Ellen married Henry Clusky July 9, 1863. These children, or their heirs or grantees, are plaintiffs in this suit. The widow married John T. Staples August 23, 1849, in St. Louis county, and died without other issue, March 14, 1888. Her husband died December 28, 1886.
Deceased at his death owned two negro girls, Matilda and Eliza. These were kept by the widow and one of them at least was disposed of by her. The widow seems to have left the homestead soon after her husband's death. Mrs. Williams and one John B. Cecil were appointed executors. On the tenth day of March, 1849, the following act was passed by the general assembly of the state and approved by the governor:
The marriage of the widow revoked her letters and Cecil afterwards left the state and Wm. C. Price was appointed administrator with the will annexed. By authority of said act, on the first day of September, 1851, the said Price sold and conveyed by deed in due form, the land which had been the homestead of deceased, to Cary A. Jamison, to whom possession was given. Defendant claims under deeds from Jamison. The land has been in the possession of defendant and his grantors since the date of the deed from Price.
It was shown that Price, as administrator, filed an inventory in the probate court charging himself with the proceeds of the sale, and the evidence tended to show that it was used in the payment of the debts of the estate. Neither of the negro girls was sold, nor does it appear that they ever came into the possession of Price, as administrator.
Plaintiff objected to the introduction in evidence of said act of the legislature on the ground that it was unconstitutional and to the deed from Price on the ground that said act conferred no valid power on him to make the conveyance. The court sitting as a jury rendered judgment for defendant and plaintiffs bring the case to this court on writ of error.
I. It will be seen from the foregoing statement that the defendants, and those under whom they claim title, had been in the actual adverse possession of the land from 1851 until the commencement of this suit December 16, 1889, a period of thirty-eight years. There is no question that all the rights the children of the testator, James T. Williams, took under the will, are barred by the statutes of limitations. As to their interests it matters not whether they were divested by the deed made by Price under the authority given him by the act of the legislature in question.
The widow, who also took an interest under the will, married after the act was passed but before the sale was made, and her husband did not die until 1886. The widow died March 14, 1888, and plaintiffs claim by descent under her. Defendants insist that the interest of the widow was also barred, under a proper construction of the statutes of limitations, and ask that the decision in Dyer v. Wittler, 89 Mo. 81, 14 S.W. 518, be reconsidered. The view we take of the sale and conveyance made by the administrator renders that task unnecessary.
II. As the power undoubtedly exists in the legislature to direct the sale of...
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