Farish v. Cook

• Decision Date: 30 April 1883
• Citation: 78 Mo. 212
• Parties: FARISH, Plaintiff in Error, v. COOK.
• Court: Missouri Supreme Court

78 Mo. 212

FARISH, Plaintiff in Error,

v.COOK.

Supreme Court of Missouri.

April Term, 1883.

Error to St. Louis Court of Appeals.--Reported in 6 Mo. App. 328.

AFFIRMED.

Henry W. Williams and E. T. Farish for plaintiff in error.

Krum & Krum and Glover & Shepley for defendant in error.

MARTIN, C.

This was an action of ejectment, commenced on the 26th day of February, 1875, in the circuit court of the city of St. Louis, to recover possession of a tract of land in the Grand Prairie Common Fields, two arpens in width by forty in depth. The defendant denied the plaintiff's right of possession, and pleaded the defense of the statute of limitations, relying upon an actual, uninterrupted and exclusive adverse possession for more than forty years before commencement of the suit. The case was tried by the court, and a great deal of evidence peculiar to this class of cases, was submitted by both sides. The merits of the case seem to have been disposed of in certain rulings on the evidence, as the case proceeded. At the conclusion of the evidence, the defendant asked and the court gave the following instruction:

If the court finds from the evidence that the defendant took actual possession of the land in controversy in this suit as early as the year 1848, and that he has had actual, continuous and uninterrupted possession of the same ever since, and down to the commencement of this suit, under claim and color of title adverse to the plaintiff, and those under whom he claims, then the plaintiff cannot recover in this action.

After this action of the court the issues were found for the defendant, and judgment rendered in his favor. The plaintiff appealed to the St. Louis court of appeals, and the judgment was affirmed. 6 Mo. App. 328.

The evidence in the record tended very strongly to prove that the defendant, and those under whom he claimed title, had been in the uninterrupted and peaceful possession of the land under color of title from 1845, a period of thirty years. This ought to be a good defense against any title, unless some of those disabilities indicated in the statute, such as minority and coverture, have occurred to arrest the effect of its beneficent provisions. The plaintiff claims that the owners of the title asserted in this case were under the disability of coverture a sufficient length of time to deprive defendant of his full bar of the statute which he otherwise would have. It becomes necessary to examine this important and decisive question, which seems to have disposed of the case in both of the lower courts. If the defendant is right in this defense, nothing can be gained by considering the difficult questions relating to the location of the Spanish grants given in evidence, which have been discussed with so much learning and ability by the counsel for both sides.

The plaintiff's chain of title commenced December 30, 1766, with a Spanish concession of that date, of two arpens front by forty in depth, in the Grand Prairie, to John Baptiste Hervieux. This original grantee died on the 6th day of November, 1775, and on the 7th day of January, 1776, at the judicial sale of Hervieux's estate, under an order of the lieutenant-governor of Illionis, Louis Honore became the purchaser of this concession. Louis Honore died on the 26th day of April, 1807; leaving as his sole heir Louis Tesson Honore, his son. On the 2nd day of February, 1816, Recorder Bates, under the provisions of the acts of congress of June 13th, 1812, and March 3rd, 1813, reported this concession to congress for confirmation, and it was confirmed in pursuance of the act of congress of April 29th, 1816, to John Bte. Hervieux's legal representatives. This confirmation enured to Louis Tesson Honore, owner of the title at that time. Louis Tesson Honore died on the 21st day of August, 1827, leaving a widow, by name Amaranthe, and a child named Maria, who was born August 14th, 1827, seven days before his death. He also left a will which he had made on the 7th day of August, 1827, two weeks before his death; which was admitted to probate on the 1st day of October, 1827, in which, it is claimed by plaintiff, he intended his widow should be his devisee as to this land. His widow married Louis Ledue on the 30th day of January, 1832, and died November 24th, 1864, under the coverture of this marriage. His daughter Maria married William Booth on the 26th day of April, 1848, and during the coverture of this marriage deeded the land to the plaintiff on the 3rd day of August, 1874, in consideration of the sum of $5.

1. STATUTE OF LIMITATIONS: cumulation of disabilities.

It is obvious from this statement relating to the title that it became an important matter to the plaintiff, in meeting the defense of the statute of limitations, as to which one of the two methods of devolution afforded him the best right of action in 1875, when he filed his petition. If he derived his title from Mrs. Booth, as the only child and heir of Louis Tesson Honore, then the title descended to her subject to her mother's dower at the date of her father's death, August 21st, 1827. Her minority would arrest the running of the statute of limitation until the 14th day of August, 1848, at which time she attained her majority. But her coverture, which commenced April 26th, 1848, a few months only before the expiration of her minority, and continued till she made her deed to plaintiff in 1874, could not be added to her disability of minority for the purpose of continuing her exemption from the bar of the statute; provided the adverse possession of the defendant commenced under her first disability of minority. Now, it is in evidence, as heretofore stated, that the adverse holding of defendant and his grantors did commence in 1845, which was about three years prior to her majority. The deduction of three years on account of her minority would leave an adverse holding of twenty-seven years, upon which judgment would have to go for defendant.

If the plaintiff could successfully derive title from Mrs. Booth, as inheriting it from her mother as the devisee of the father, then the defense of the statute would be overcome, because she would not have inherited it till the death of her mother on the 24th day of November, 1864, and the coverture of her mother with Louis Leduc from January 31st, 1832, would arrest the operation of the statute as against the adverse possession of defendant commencing in 1845, and pass the title to Mrs. Booth on the 24th day of November, 1864, unimpaired by its effects. The coverture of Mrs. Booth existing at the date, and continuing till her conveyance to plaintiff in 1874, would arrest the operation of the statute till that date, and leave the defendant with an adverse possession within the statute, of about one year instead of twenty-seven. The coverture of the mother and the succeeding coverture of the daughter would not constitute a cumulation of disabilities, because they appertain to different parties.

It is proper for me to remark here, that I am stating the position which the plaintiff takes in order to meet the defense of the statute of limitations, and that I have no occasion to consider whether the bar of twenty-four years in the act of 1847, is affected by coverture or minority. Valle v. Obenhouse, 62 Mo. 81.

2. A WILL CONSTRUED: “all my worldly goods.”

The controversy is thus narrowed down to the single question as to whether Louis Tesson Honore devised this land to Amaranthe, his widow, or died as to it intestate, thus casting the descent at once upon his daughter, who afterward married William Booth, and conveyed it to the plaintiff. The determination of this question depends upon the construction of the will of Honore. The only clause by which anything was devised in the will is as follows: “Secondly, I give and bequeath to my beloved wife, Amaranthe Honore, all my worldly goods, consisting of household furniture, clothing, beds and bedding, money and cattle; also whatever debts may be due me; likewise my house and lot I now occupy in the city of St. Louis, to be by her enjoyed during her life, and at her death to belong to the child with which she is pregnant, if it should survive her, if not, then said house and lot to be vested absolutely in my said wife, to be by her disposed of as she may think proper.” This is an authentic translation of the will which was written in French. If this land was devised by the will, then it must have been included in the words “all my worldly goods.”

While it is true that the intention of the testator must govern...