Glasgow v. Missouri Car and Foundry Company
| Decision Date | 30 June 1910 |
| Parties | WILLIAM C. GLASGOW, Appellant, v. MISSOURI CAR AND FOUNDRY COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Affirmed.
Johnson Rule & Allen for appellants.
(1) On the death of Mary E. Lane in November, 1865, the trust created by the deed from William L. Ewing to William Glasgow Jr., terminated, and the legal title vested in Mrs. Lane's heirs, Sarah L. Glasgow and Anne E. Lane. O'Brien v. Ash, 169 Mo. 283; Schiffman v. Schmidt, 154 Mo. 204; Walton v. Drumtra, 152 Mo. 489; Baker v. Hall, 59 Mo. 265; Roberts v. Moseley, 51 Mo. 282. (2) In 1865 Sarah L. Glasgow was the wife of William Glasgow, Jr., and by virtue of the marital relation he became entitled to the possession of his wife's interest. Wilson v. Geraghty, 70 Mo. 517; Mueller v. Klassmann, 84 Mo. 318; Dyer v. Wittler, 89 Mo. 81; Arnold v. Willis, 128 Mo. 145; Robards v. Murphy, 64 Mo.App. 90; Clay v. Mayr, 144 Mo. 376; Vanata v. Johnson, 170 Mo. 269. (3) This right of possession accrued to William Glasgow, Jr., on the death of Mary E. Lane, and no statute subsequently passed could deprive him of this right. Flesh v. Lindsay, 115 Mo. 1; Arnold v. Willis, 128 Mo. 145; Robards v. Murphy, 64 Mo.App. 90; Clay v. Mayr, 144 Mo. 376. (4) As there were children born of the marriage between Wm. Glasgow, Jr., and Sarah L. Glasgow, he was entitled to the possession of the premises from 1887, the date of her death, until 1892, the date of his death. Rumsey v. Otis, 133 Mo. 85. (5) On the death of Sarah L. Glasgow, in 1887, the legal title to the half interest owned by her passed to her children as her heirs, and that legal title remains in them at the present time. (6) Plaintiffs are not barred by the Statute of Limitations from maintaining this suit for the half interest of their mother, Sarah L. Glasgow. From 1849 to 1879 the land was unimproved, unenclosed, subject to overflow by the Mississippi river, and incapable of continuous occupation. It was not actually occupied by anyone, and was therefore constructively in the possession of the owner of the legal title. Turner v. Baker, 64 Mo. 245; Weir v. Lumber Co., 186 Mo. 397. As plaintiffs were in possession of the land in contemplation of law, in 1879, and this suit was brought in 1899, the thirty-year statute does not apply. Weir v. Lumber Co., 186 Mo. 388. (7) Neither the twenty-four nor ten-year statute can apply because neither plaintiffs nor their mother, Sarah L. Glasgow, were entitled to the possession of the premises until 1892, and therefore could not, until then, have maintained a suit to recover the same. Dyer v. Wittler, 89 Mo. 81; Bradley v. Railroad, 91 Mo. 493; Thomas v. Black, 113 Mo. 66; Rumsey v. Otis, 133 Mo. 85; Collins v. Pease, 146 Mo. 135; Shumate v. Snyder, 140 Mo. 77; Howell v. Jump, 140 Mo. 441; Reed v. Lowe, 163 Mo. 521; Hall v. French, 165 Mo. 430; McMurtry v. Fairley, 194 Mo. 502.
Watts, Williams & Dines and J. M. Holmes for respondent.
(1) The trustee being bound by the ten-year Statute of Limitations, his cestuis que trustent, under whom appellants claim, were bound also. Ewing v. Shanahan, 113 Mo. 188; Walton v. Ketchum, 147 Mo. 219; Schiffman v. Schmidt, 154 Mo. 204; Simpson v. Eisner, 155 Mo. 164. (2) The trust estate of Wm. Glasgow, Jr., was not extinguished by the death of the cestui que trust, nor was it dependent upon the personal status of the cestui que trust, as by the deed creating it active duties were imposed on the trustee and he was given control over the rents and profits. Pugh v. Hayes, 113 Mo. 424; Walton v. Ketchum, 147 Mo. 209; Norton v. Leonard, 12 Pick. 156; Duffy v. Calvert, 6 Gill, 521; Blount v. Walker, 31 S.C. 13; 2 Washburn on Real Property, p. 470; 1 Greenleaf's Cruise on Real Property, title 12, ch. 1, sec. 25; Fletcher on Trustees, 27. (3) Even were the trust estate of Glasgow dependent solely on the coverture of the cestui que trust, while the statute would execute the use, upon her death, as to the share of her unmarried daughter, it would not as to the share of her married daughter (under whom appellants claim) for the same reason that it would not in her own case -- coverture. Walton v. Ketchum, 147 Mo. 218. (4) Appellants are bound by the thirty-year Statute of Limitations. Collins v. Pease, 146 Mo. 135; Campbell v. Greer, 209 Mo. 216. (5) Appellants are bound by the presumption of the existence of an unrecorded deed from Glasgow, trustee, and Mrs. Lane, to their grantee, Catherine Merry. Greenleaf on Ev., secs. 16 and 17; Dessaunier v. Murphy, 22 Mo. 95; Moran v. Detchemendy, 41 Mo. 438; Brinley v. Forsythe, 69 Mo. 185; Williams v. Mitchell, 112 Mo. 300; Brown v. Oldham, 123 Mo. 631.
This is an appeal from a judgment of the circuit court of the city of St. Louis in favor of the defendant in a suit in ejectment, seeking to recover possession of a piece of real estate in the city of St. Louis. The petition is in the usual form, and the answer consists of a general denial and a plea of the ten, twenty-four and thirty-year Statutes of Limitations.
A jury was waived and the case tried upon an agreed statement of facts. The agreed facts are as follows:
The fee-simple title to the land in controversy became vested in William L. Ewing, and on October 29, 1849, he and his wife conveyed the same to William Glasgow, Jr., "in trust, nevertheless, and to the express use and interest that the said premises shall be forever held for the sole and separate and exclusive benefit, use and behoof of the said Mary Ewing Lane, party of the third part, without any account to any person whomsoever or any liability in any manner for the debts or liabilities of William Carr Lane, husband of the said Mary Ewing Lane; and in further trust that said party of the third part shall forever have and fully enjoy the pernancy of the profits, rents and issues of said premises, for which her receipt and acquittances shall forever be a sufficient discharge; and that said party of the second part shall always sell and mortgage or lease the said premises or any part thereof, or any interest or estate therein, and execute and deliver such assurances and conveyances of the same as may at any time be required by the written order or request of said party of the third part or her assigns, and also that said party of the second part shall always, when necessary or proper, defend and make good the title of said premises, but for all expenses that may be incurred in the execution of the trusts of this deed said party of the second part may make deductions out of said rents and profits of said premises."
No conveyance of this property from William Glasgow, Jr., or Mary E. Lane, or from any of their descendants, appears of record in the records of the city of St. Louis.
Mary E. Lane died intestate November 5, 1865, leaving as her sole heirs two daughters, Sarah L. Glasgow, wife of William Glasgow, Jr., and Anne E. Lane, originally one of the plaintiffs in this suit, both being at said date of legal age. Anne E. Lane died unmarried and without issue since the institution of the suit. She left a will, but made no mention of the property here involved, and the will contained no residue clause. Her sole heirs at law are the children of her sister, Sarah L. Glasgow. Mrs. Sarah L. Glasgow died February 28, 1887, leaving surviving her her husband, William L. Glasgow, Jr., and her children, Wm. C. Glasgow, Allen Glasgow, Frank A. Glasgow, Susan R. Carson, Mary Branch, Sarah L. G. Wilson and Annie Glasgow, plaintiffs herein. Her estate was administered in the St. Louis Probate Court and the property here involved was not inventoried. William Glasgow, Jr., husband of Sarah L. Glasgow, died January 31, 1892.
The land in controversy was unimproved, unenclosed and unoccupied at all times prior to 1879; was subject to overflow from the Mississippi river and was not susceptible of continuous occupation and was not in the actual, that is, the physical possession of any one.
No taxes on the land had been paid by plaintiffs or anyone under whom they claim since 1852. Defendant and those under whom it claims have paid taxes on this land continuously from 1852 to the present time, inclusive, said land having been assessed in their names since said date; in the name of Catherine M. Merry until her death, in the name of her heirs until 1898, and in the name of defendant since said date.
Defendant entered into actual occupation of the premises in controversy in June, 1879, under lease executed by the heirs of Catherine M. Merry, raised the grade thereof and constructed buildings thereon. On December 11, 1897, defendant obtained a general warranty deed to the property from the heirs of Catherine M. Merry. Since June, 1879, defendant has been in actual, open, notorious and visible possession of the premises.
The court found for defendant, and after an unsuccessful motion for a new trial, plaintiffs have appealed to this court.
I. The contention in this cause hinges upon the proposition, first, whether plaintiffs, as the heirs of Mrs. William Glasgow, Jr., are barred by the ten, twenty or thirty-year Statute of Limitations. It is admitted that Miss Anne E. Lane and her heirs are barred by the actual adverse possession of defendant from 1879 until the commencement of this action in 1899, during all of which time Miss Lane was a feme sole, and could have brought her action by ejectment. As to her sister's, Mrs. Glasgow's, half, the conditions are different. From 1849 to 1879, the land in suit was vacant and unoccupied by any person and the constructive possession must be held to have been with the owner of the title.
It is insisted by...
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