Dyer v. Wittler

• Decision Date: 01 April 1886
• Citation: 14 S.W. 518,89 Mo. 81
• Court: Missouri Supreme Court
• Parties: DYER et al. v. WITTLER et al.<SMALL><SUP>1</SUP></SMALL>

14 S.W. 518

89 Mo. 81

DYER et al. v. WITTLER et al.¹

Supreme Court of Missouri.

April Term, 1886.

LIMITATION OF ACTIONS.

During coverture, and while the husband was tenant by the curtesy initiate of land owned in fee by the wife, he was disseised. While the land was held adversely by the disseisor, the wife died, and the husband became entitled as tenant by the curtesy consummate. Rev. St. Mo. 1879, § 3222, provides that, if one entitled to an action to recover land be at the time the right shall first accrue a married woman, the time during which the disability shall continue shall not be deemed part of the time limited, (10 years, by section 3219,) but she may bring the action after the time limited, and within 3 years after the disability is removed: provided, that no such action shall be commenced after 24 years from the time the cause of action shall have accrued. Held, that the right of the wife to sue for the possession of the land would not accrue until the death of her husband; and, the wife having died before her husband, the statute did not begin to run against her heirs until the husband's death, and they could sue within 10 years thereafter, though it had been more than 24 years since the adverse possession began. Overruling Valle v. Obenhause, 62 Mo. 81. SHERWOOD, J., dissenting.

Error to St. Louis court of appeals.

Thomas A. Russell and E. P. Johnson, for plaintiffs in error. D. Murphy, for defendants in error.

RAY, J.

This is an action of ejectment for certain real estate in the city of St. Louis, described in the amended petition, upon which the case was tried. Suit was commenced in May, 1878. The defense is the statute of limitations of 24 years. Rev. St. § 3222. The reply is that, in the year 1838, the mother of the plaintiffs was the owner of the land in fee-simple, having inherited it from her father; that she was at the time the wife of Abner W. Dyer, their father; that there was issue born alive of the marriage, in 1837; that their marital relations continued until 1869, when it was dissolved by the death of the mother; that the father survived, and died in 1870; that the plaintiffs are the only surviving issue of the marriage, and claim the premises as heirs of their said mother. At the trial, evidence was given tending to support this reply. The court, under appropriate evidence in that behalf, offered by the defendants, gave the following declaration of law, which drove the plaintiffs to a nonsuit: "The court, of its own motion, declares the law to be that if defendants, or those under whom they claim, entered upon a tract of land embracing the premises described in the petition herein in the year 1846, claiming to own said tract under and by virtue of a deed purporting to convey the same to them in fee, and in that year inclosed said tract with a fence, and improved and cultivated said tract, and occupied said tract (or the portion thereof described in the petition) so inclosed, and improved continuously from that time, under such claim of title, up to the time of the death of Abner W. Dyer, on or about the 25th of June, 1870, and for three years next after his death, and before the original petition in this case was filed, the plaintiffs are not entitled to recover." After an unsuccessful motion to set aside nonsuit, the plaintiffs took the case, by writ of error, to the St. Louis court of appeals, where the ruling and judgment of the circuit court was affirmed, from which the plaintiffs bring the case here by writ of error. From this record it appears that the plaintiffs claim the property in question as the heirs of their mother, who at and before 1846, when the adverse possession under which the defendants' claim first commenced was the owner in fee of said real estate, and a married woman, with issue born alive of that marriage; that the said marriage continued until 1869, when it was dissolved by the death of the mother; that the father survived the mother, and died in 1870; and that this suit was commenced in 1878, and within 10 years after the death of the father, but not until 32 years after said adverse possession had commenced, and 31 years after the date of the present statute of limitations of 1847, and more than 3 years after the death of their father. The defense is the 24-years statute of limitation. Under this state of facts, the only question is, are the plaintiffs barred of their right of action under a proper construction of the statute of limitation of 1847, invoked by defendants for their protection?

The first section of that act (now section 3219, Rev. St. 1879) on its face declares, in substance, that no action for the recovery of lands, or the possession thereof, shall be commenced, had, or maintained, by any person whatever, unless it appears that the plaintiff, his ancestor, predecessor, grantor, or other person under whom he claims, was seised or possessed of the premises in question within 10 years before the commencement of such action or suit. But it may be remarked, at the outset, that, by common consent, the proper construction of the statute is that, notwithstanding the sweeping language of the first section of the act, no person is embraced in or contemplated by the first or any subsequent section of the statute except such as have a present existing right to commence an action or make an entry. Dyer v. Brannock, 66 Mo. 422; Johns v. Fenton, 88 Mo. 64; Harris v. Ross, 86 Mo. 89. Section 4 (now section 3222, Rev. St. 1879) declares that "if any person entitled to commence any action in this article specified, or to make an entry, be, at the time such right or title shall first descend or accrue, either within the age of twenty-one years, or insane, or imprisoned on any criminal charge, or in execution upon some conviction of a criminal offense for any time less than life, or a married woman, the time during which such disability shall continue shall not be deemed any portion of the time, in this article limited, for the commencement of such action or the making such entry; but such person may bring such action or make such entry after the time so limited, and within three years after such disability is removed: provided, that no such action shall be commenced, had, or maintained, or entry made, by any person laboring under the disabilities specified in this section after twenty-four years after the cause of such action or right of entry shall have accrued." Section 3224, Rev. St. 1879, reads: "If any person entitled to commence such action or to make such entry die during the continuance of any disability specified in section three thousand two hundred and twenty-two, and no determination or judgment be had of the title right of action to him accrued, his heirs, or any person claiming from, by, or under, him, may commence such action or make such entry after the time in this article limited for that purpose, and within three years after his death, but not after that period."

The question before us, it may be remarked, is determinable, of course, by the state of the common law as it stood at that date, unaffected by subsequent statutes limiting the common-law rights of the husband in the fee-simple estates of the wife. The material and decisive question for determination in this case, therefore, is, to whom, by the common law as it stood at that date, did the right of action or cause of entry accrue, by reason of the adverse possession or disseisin, under which the defendants claim title? The solution of that question depends upon another, to-wit, who, under the law and the facts, had, or was entitled to, the seisin and possession of the premises when the adverse possession first commenced? The court of appeals, in their opinion, affirming the ruling and judgment of the circuit court, (14 Mo. App. 52,) held that the case was governed by that of Valle v. Obenhause, 62 Mo. 81, as modified and explained by Dyer v. Brannock, 66 Mo. 391, 422, adjudicating upon this very title. That case (Valle v. Obenhause, supra,) held that "the husband is understood to be jointly seised of his wife's estate, and, during the existence of coverture, he is not tenant by the curtesy, but only seised by right of his wife; and, if there be a disseisin, it is of the joint estate, and they must jointly bring an action to recover the possession. Under this view of the title of husband and wife in the lands of the wife, the statute of limitation will begin to run from the date of the disseisin against both." If that ruling be accepted as the present state of the law in this state on this question, the plaintiffs are unquestionably barred. It has been something over 10 years since that decision was rendered, and it has been justly esteemed an important one; and, if during all that time its correctness has not been challenged, it should not now be lightly called in question. It becomes important, therefore, to consider, not only the case itself, but also how far, if at all, and to what extent, it has since been questioned, modified, or overruled. In the first place, it may be remarked that the opinion in that case was that of a majority of the court; one of its members being absent, and another delivering a dissenting opinion to the effect "that the wife had no right of action or entry after the disseisin until the death of the husband, and that her grantee, the plaintiff, in that event was not barred by the statute of limitations." It may also be added that one member of the majority placed his concurrence in that opinion on grounds somewhat different from those stated in the opinion proper. It may be further remarked that the case, when decided, was regarded by the court as a new one in regard to the proper construction of our statute of limitation, and for that reason, as well as its own merits, was carefully considered by the several judges in their respective opinions. In that of the court proper, as well as that of the dissenting judge, the two "opposing...