Dehatre v. Edmonds

• Citation: 98 S.W. 744,200 Mo. 246
• Parties: DeHATRE et al., Appellants, v. LUCY T. PENN EDMONDS et al
• Decision Date: 22 December 1906
• Court: Missouri Supreme Court

98 S.W. 744

200 Mo. 246

DeHATRE et al., Appellants, v. LUCY T. PENN EDMONDS et al

Supreme Court of Missouri, Division One

December 22, 1906

Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.

Affirmed.

O. J Mudd, Robert Shackelford and George W. Wolff for appellants.

(1) (a) Even if Penn, after death of Tom Withington, held adversely to Sallie Withington, it could not start the running of the statute until Sallie's death, because of her insanity. R S. 1879, sec. 3222; State v. Macey, 67 Mo.App. 326; Landers v. Perkins, 12 Mo. 259; Burdette v. May, 100 Mo. 19; Quick v. Rufe, 164 Mo. 413; Dessaunier v. Murphy, 33 Mo. 184. (b) Nor did the appointment of a guardian over Sallie start the running of the statute against her estate. Keeton's Heirs v. Keeton's Adm., 20 Mo. 543; Smith v. Ins. Co., 64 Mo. 330; Lindell R. E. Co. v. Lindell, 142 Mo. 77; Wood on Stat. Lim., secs. 238, 239. (2) Upon Sallie's death in 1871 she left five children, all of whom but Martha Ann DeHatre had quitclaimed to Dr. Penn. Hence, her real estate devolved as to four-fifths upon Dr. Penn as grantee of the other heirs, and as to one-fifth upon Martha Ann DeHatre, but as Martha Ann at that time had a husband and children born of him, this one-fifth immediately vested in Martha Ann's husband, Antoine DeHatre, for the period of their marriage, and after her death, for his life, remainder over to plaintiffs. And on this state of the title neither Martha Ann, during her life nor after her death plaintiffs, her heirs, became vested with any right of possession or of entry or of action against the disseizor until Antoine's death in January, 1901. Harris v. Ross, 86 Mo. 100; Dyer v. Witler, 89 Mo. 81; Arnold v. Willis, 128 Mo. 145; Vanata v. Johnson, 170 Mo. 269; Hall v. French, 165 Mo. 438; Lessees of Thompson's Heirs v. Green, 4 Ohio St. 216. (3) Nor was such devolution of the title affected by the adverse possession of Dr. Penn. Beaume v. Chambers, 22 Mo. 54; Stevens v. Chambers, 25 Mo. 325; Harvey v. Wichman, 23 Mo. 115; Martin v. Trail, 142 Mo. 85; Cox v. Boyce, 152 Mo. 576; Arnold v. Willis, 128 Mo. 149; Dozier v. Toalson, 180 Mo. 552. (4) The estate and title of Antoine DeHatre was governed by the law as of the date of Sallie's death in 1871, and remained unaffected by subsequent statutes changing the law. Arnold v. Willis, 128 Mo. 145; Vanata v. Jonhson, 170 Mo. 269. (5) Until Antoine's death, neither Martha his wife, nor his heirs after her death, could bring any action for possession, because until the termination of the estate of the husband they had no right of possession. Gideon v. Hughes, 21 Mo.App. 528; Flesh v. Lindsay, 115 Mo. 1; Miller v. Kaessmann, 84 Mo. 330; Bains v. Bullock, 129 Mo. 119; Robards v. Murphy, 64 Mo.App. 90; Vanata v. Johnson, 170 Mo. 269; Lessee of Thompson's Heirs v. Green, 4 Ohio St. 216. (6) The Statute of Limitations based on adverse possession never runs against persons whose estate does not confer present right of possession and entry. Harris v. Ross, 86 Mo. 101; Bradley v. Railroad, 91 Mo. 498; Dyer v. Brannock, 66 Mo. 422; Dyer v. Wittler, 89 Mo. 90; Shumate v. Snyder, 140 Mo. 87; Hall v. French, 165 Mo. 442. (7) When Sallie died Dr. Penn's adverse possession put the statute to running against Antoine DeHatre, the owner of that estate in the land which carried the present right of possession. And when continued for ten years from its beginning and three years after Sallie's death, barred his right of entry, destroyed his remedy, extinguished his title, and operated as a transfer of his estate to the disseizor, vesting such estate in the disseizor with like effect as if transferred by deed. Fairbanks v. Long, 91 Mo. 631; Nelson v. Brodhack, 44 Mo. 596; Valle v. Obenhause, 62 Mo. 101; Cunningham v. Snow, 82 Mo. 592; Lessee of Thompson's Heirs v. Green, 4 Ohio St. 216; Kirton v. Bull, 168 Mo. 633; Scannell v. American Soda F. Co., 161 Mo. 618; Ridgeway v. Holliday, 59 Mo. 53; Barry v. Otto, 56 Mo. 177; Dalton v. Bank, 54 Mo. 105; Shepley v. Cowan, 52 Mo. 559; Bank v. Evans, 51 Mo. 346; Boyce v. Railroad, 168 Mo. 583; Stevens v. Martin, 168 Mo. 410; Franklin v. Cunningham, 187 Mo. 184. (8) But such ouster and disseizin of Antoine DeHatre and acquisition of his estate (which was an estate of freehold, de jure uxoris), by the operation of the bar of the Statute of Limitations, could not affect the rever sionary rights of Martha Ann and her heirs because they had at no time during such running of the statute been invested with any right of possession, and hence no right of entry or action against the disseizor. Tiedeman on Real Property, sec. 65; 1 Washburn, Real Prop. (4 Ed.), sec. 30a, p. 126; 3 Washburn, Real Prop. (4 Ed.), sec. 30, p. 148; Lessee of Thompson's Heirs v. Green, 4 Ohio St. 216; Vanata v. Johnson, 170 Mo. 269; Dyer v. Brannock, 66 Mo. 420; Whitaker v. Whitaker, 175 Mo. 1; Manning v. Coal Cos., 181 Mo. 374; Campbell v. Laclede Gas Light Co., 84 Mo. 377. (9) Any statute which would operate to bar the reversioner or remainderman before the termination of the life estate because such remainderman or reversioner were without right of possession, entry or action, and hence without day in court, would be unconstitutional, null and void. Campbell v. Gas Light Co., 84 Mo. 377; Shumate v. Snyder, 140 Mo. 87; Hall v. French, 165 Mo. 442. (10) The distinction between the tolling of the statute by disabilities in the owner to assert a legal right of possession, and immunity from adverse possession of a claimant whose estate carries no present right of possession without regard to any disabilities of the claimant, is important, and must be kept in view. Dyer v. Wittler, 89 Mo. 90; Hoester v. Sammelman, 101 Mo. 618; Hall v. French, 165 Mo. 441. (11) The provision in the will of Martha Ann DeHatre for her husband, not being in lieu of his curtesy, put him to no election and was not of itself sufficient to affect his life estate. Ball v. Ball, 165 Mo. 312; Graham v. Rosenburgh, 47 Mo. 111; Schorr v. Ettling, 124 Mo. 46. (12) The twenty-four-year statute is not involved because that, by its terms, applies only as against persons who are invested with the right of action but excused from prosecuting this action because of personal disabilities. Its office is to limit the immunity from the effects of adverse possession flowing from the disabilities. It does not fit the facts in this record. Dyer v. Wittler, 89 Mo. 81. (13) The thirty-year statute has no application to the case at bar. (a) Because at any and all times when it might have been invoked Martha Ann DeHatre and her heirs were only reversioners or remaindermen and had no right of action. Hall v. French, 165 Mo. 430. (b) Because the defendants having by adverse possession acquired the life estate of Antoine DeHatre became possessed as life tenants, and the possession of the life tenant is the possession of the remaindermen, and hence the plaintiffs were not out of possession within the spirit and meaning of the thirty-year statute. (c) Because, as life tenants, by operation of the Statute of Limitations, they were bound to pay the taxes, and so there was no failure on the part of plaintiffs or their mother to pay the taxes as contemplated by the thirty-year statute. Hall v. French, 165 Mo. 438; Howell v. Jump, 140 Mo. 457. (d) In order to invoke the thirty-year statute there must be as essential pre-existing conditions, first, the true owner thirty years out of possession; second, right of action in claimants for one year before suit brought. The earliest date when plaintiffs' predecessors in title may be said to have been out of possession was in 1863, upon the death of Thomas Withington (because Dr. Penn's possession prior to that under grant from the life tenant made his possession the possession of Sallie, the remainderman). And as thirty years from that date, 1893, Antoine DeHatre, the life tenant, still lived and continued to live until one year before the bringing of this suit, plaintiffs and their mother were therefore only remaindermen, and had no right of possession, or right of entry or of action for possession. Shumate v. Snyder, 144 Mo. 88; Hall v. French, 165 Mo. 430; Vanata v. Johnson, 170 Mo. 269.

W. F. Broadhead and W. R. Gentry for respondents.

(1) The fact that Antoine DeHatre, who was only entitled to a life estate by virtue of his marital rights, became barred and his remedy extinguished by reason of such adverse possession, did not and could not have the effect of transforming at once the hostile, adverse possession of defendants, held and asserted under claim of sole, entire and exclusive ownership and title, into a friendly, subordinate possession held as life tenants under appellants and in privity of estate with them as in case of a deed; for the effect of adverse possession and lapse of time is to destroy the remedy and extinguish the title of all claimants who are out of possession, and not to transmit title to the adverse holders, but to create and establish in them a complete, full, and absolute legal title by operation of law, as against all hostile claimants who are out of possession, whatsoever interests or titles they may claim. Bank v. Evans, 51 Mo. 347; Berry v. Otto, 56 Mo. 179; Davis v. Thompson, Ib. 39; Dalton v. Bank, 54 Mo. 106, citing 33 Mo. 172; Crockett v. Morrison, 11 Mo. 6; Biddle v. Mellon, 13 Mo. 341; Blair v. Smith, 16 Mo. 280; Cooper v. Ord, 60 Mo. 432; Comstock v. Eastwood, 108 Mo. 47; Gardner v. Terry, 99 Mo. 526; Warfield v. Lindell, 38 Mo. 561; Sherwood v. Baker, 105 Mo. 477; Long v. Kansas City Stock Yards Co., 107 Mo. 304; Stevens v. Martin, 168 Mo. 410; Peck v. Lockridge, 97 Mo. 557; Myers v. Schuchmann, 182 Mo. 177; Reformed Church v. Schoolcraft, 65 N.Y. 134; Butler v. Carpenter, 163 Mo. 604....