Graham v. Ketchum
| Decision Date | 12 December 1905 |
| Citation | 90 S.W. 350,192 Mo. 15 |
| Parties | TOBITHA GRAHAM v. DANIEL KETCHUM, Appellant |
| Court | Missouri Supreme Court |
Appeal from Daviess Circuit Court. -- Hon. J. W. Alexander, Judge.
Affirmed.
Hicklin Leopard & Hicklin for appellant.
Plaintiff's suit having been brought more than ten years after the death of Mary McCully and more than three years after the death of David Graham, was barred by the Statute of Limitations, and the finding and judgment should have been for defendant. Sec 4265, R. S. 1899, Wheelock v. Overshiner, 110 Mo 100.
Boyd Dudley and Thos. A. Gaines for respondent.
(1) Wheelock v. Overshiner, 110 Mo. 100, is the only case cited and relied upon as authority by appellant. While among other questions decided, it, in a measure, supports appellant's contention that the widow does not have full ten years after the removal of the disability of coverture in which to bring suit, yet, it seems to be a sporadic case, and, so far as prior and subsequent adjudications are concerned as to the question at bar, like the mule, without either "pride of ancestry or hope of posterity." Let us examine this case briefly. First. The question of the husband's marital right to the possession of his wife's land, was neither raised, discussed nor referred to in any manner. Second. The finding of the court (page 113) that the plaintiff had been in possession for more than ten years "after Mrs. Brittain's right of action accrued," was based solely on the fact, that he had, in fact, been in possession for more than ten years, without any discussion, consideration or reference to the questions as to when her right of action accrued, or whether she had a right of entry or possession while her husband was still living and coverture existed. It is clear that these questions, together with the question as to her husband's sole right of possession by virtue of his martial rights, were not called to the attention of the court and were overlooked. Third. The ruling of the court that she had only three years after the disability of coverture was removed by the death of her husband, in which to bring suit to recover, is based solely on the case of Gray v. Yates, 67 Mo. 601. In that case, the holding is, that a minor has only three years after his disability of minority is removed in which to bring suit. This involves an entirely different principle from that in the case at bar, for the reason that, where an estate descends or the right accrues to a minor, during minority, he has the immediate right of entry and possession, while with a married woman, under the law as it existed at that time, if coverture exists, the right of entry or possession did not accrue until the disability of coverture was removed. The right of possession was in the husband alone. The right of entry and action, his alone. He alone had the right to sue in ejectment, and she had to wait until, by the providence of God or the benign decree of the court, the marital relation ceased and coverture ended. Under the law as it exists now, since the full emancipation of married women, she is the absolute master of her separate property, acquired by inheritance, gift or purchase. This law, however, has no retroactive effect, and under the law as it existed then, and which governs this case, like Moses of old, she was not permitted to enter the promised land, or taste the sweet fruits of her ownership. She could only go up into the "mountain of Nebo, to the top of Pisgah;" there to be shown all the land of Canaan -- valley and plain -- mountain and palm tree -- even to the uttermost sea. And the law said to her, as the Lord said to Moses, "I have caused thee to see it with thine own eyes, but thou shalt not go over thither." As the Gray case, supra, was the sole basis for the ruling in the Overshiner case, and as it turned upon an entirely different principle, and as no other case existed announcing the same principle, the Overshiner case, was, as to the question at bar, wholly without authority. Since that opinion was rendered, seventy volumes have been added to the reported decisions of this court. Many cases have been passed upon, involving the same and similar legal propositions, and only twice has this case been referred to on this point. Once in the case of Reed v. Painter, 145 Mo. 354, wherein it was held that the wife had the right of action for injury done to her inheritance or the integrity of her fee simple title to her lands, and, again, in the case of Overshiner v. Brittain, 169 Mo. 353, on the question of res adjudicata, but never, as sustaining the doctrine contended for by appellants in this case. Both before and since that case this court has held, on every occasion where the question was squarely presented, that the husband's right of possession prevented the married woman from having either right of possession or entry until coverture ceased and that she had ten years after her disability ceased in which to bring suit. Dyer v. Wittler, 89 Mo. 81; Smith v. Patterson, 95 Mo. 529; Bradley v. Railroad, 91 Mo. 498; Pim v. St. Louis, 122 Mo. 665; Hall v. French, 165 Mo. 440. (2) The law is well established in this State: First. That prior to the passage of the Married Woman's Act the husband's right of possession of his wife's land was a common law right, existing by virtue of the marital relation. Second. That it was a vested right and could not be taken away by the Married Woman's Act. Third. That the husband's right to possession was exclusive. Fourth. That the wife's right of action or entry was postponed until the death of her husband, and that she was not entitled to commence or maintain any action, and had no right of entry or possession so long as her husband lived and the marital relation continued. Lessee of Thompson's Heirs v. Green, 4 Oh. St. 216; Dyer v. Wittler, 89 Mo. 81; Leete v. Bank, 115 Mo. 184, and 141 Mo. 574; Flesh v. Lindsay, 115 Mo. 17; Arnold v. Willis, 128 Mo. 151; Barns v. Bullock, 129 Mo. 120; Smith v. White, 165 Mo. 596; Hall v. French, 165 Mo. 438; Vanata v. Johnson, 170 Mo. 274; Chew v. Kellar, 171 Mo. 223. And the fact that the husband and wife did not live together for a time before his death does not affect the common law right of the husband to the possession of the wife's property. Throckmorton v. Pence, 121 Mo. 58.
This is an ordinary petition in ejectment for an undivided one-eighteenth interest in the northeast quarter of the southwest quarter and the northwest quarter of the southeast quarter of section twenty-two in township sixty of range twenty-nine, in Daviess county, Missouri.
Defendant pleads the ten-year Statute of Limitations, claiming actual, continuous, adverse, notorious, visible and exclusive possession of the premises sued for, for more than ten years before the commencement of this suit. Also a general denial of all matters in plaintiff's petition.
The reply consists merely of a general denial of new matter set up in defendant's answer.
On September 12, 1902, plaintiff by leave of court filed her petition and defendant entered his appearance, the cause continued, and on December 8, 1902, defendant filed answer. On December 12, 1902, this cause was submitted to the court, evidence heard and continued under advisement. And on the 22nd day of April, 1903, judgment was duly rendered for plaintiff for one-eighteenth of the land described in plaintiff's petition, and for one cent damages and for seventy-five cents monthly rents and profits; and on the same day defendant filed his motion for a new trial; which was one the same day, by agreement of the parties taken up and considered by the court and overruled. On the same day defendant made application for appeal to the Supreme Court of Missouri, which was granted, and defendant was allowed until and during the September term, 1903, of the court to file a bill of exceptions; and on the 16th day of September, 1903, the same being the ninth day of the September term, 1903, of said court, defendant filed his bill of exceptions, which was signed and sealed by the judge of the court and made a part of the record in this cause. The cause was submitted to the court on the following agreed statement of facts:
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