Hall v. French

• Decision Date: 03 December 1901
• Citation: 65 S.W. 769,165 Mo. 430
• Parties: HALL, Appellant, v. FRENCH
• Court: Missouri Supreme Court

65 S.W. 769

165 Mo. 430

HALL, Appellant, v. FRENCH

Supreme Court of Missouri

December 3, 1901

Appeal from Grundy Circuit Court. -- Hon. P. C. Stepp, Judge.

Reversed and remanded (with directions).

Hall & Hall for appellant.

(1) The deed from Richard and wife to Ann P. Henderson vested in her an estate which the common law formerly denominated a conditional fee, which became absolute if the grantee or donee had bodily heirs. 2 Blackstone, 110, 111; Tiedeman on Real Property, sec. 45. By the Statute of Westminster the Second, called "De Donis Conditionalibus," this fee conditional was converted into an estate tail. 2 Blackstone 112; Tiedeman on Real Property, secs. 46, 47. According to the statutes of Missouri, in force at the time said deed was made, Ann P. Henderson became seized of said real estate for her natural life and at her death the remainder passed to her children, plaintiff's grantors, in fee simple absolute. R. S. 1825, p. 216, sec. 4; R. S. 1835, p. 119, sec. 5; Burris v. Page, 12 Mo. 358; Despain v Carter, 21 Mo. 331; Muldrow v. White, 67 Mo 470; Phillips v. LaForge, 89 Mo. 72; Wood v. Kice, 103 Mo. 229; Emerson v. Hughes, 110 Mo. 627; Bone v. Tyrrell, 113 Mo. 175, 182; Reed v. Lane, 122 Mo. 311; Clarkson v. Clarkson, 125 Mo. 381; Brown v. Rogers, 125 Mo. 392; Hunter v. Patterson, 142 Mo. 310; Rozier v. Graham, 146 Mo. 352; 1 Tiedeman on Real Property (1 Ed.), sec. 47. (2) The husband had an interest in the wife's life estate in the land, which could be levied upon and sold for his debts and which passed to Robert Benson by the sheriff's deed. Mueller v. Kaessman, 84 Mo. 324; Dyer v. Wittler, 89 Mo. 93; Conrad v. Howard, 89 Mo. 223; Godman v. Simmons, 113 Mo. 130; 15 Am. and Eng. Ency. of Law, 817, 818, and note; 2 Kent's Com. (11 Ed.), pp. 112, 113 and 115; R. S. 1835, p. 252, secs. 17, 45 and 59. (3) The sheriff's deed to Benson only conveyed the husband's interest in his wife's life estate, and the possession of the parties claiming under this deed was not adverse to the children of Ann P. Henderson while she lived, and limitation did not begin to run until her death. Salmon's Admr. v. Davis, 29 Mo. 181; Dyer v. Brannock, 66 Mo. 391; McCracken v. McCracken, 67 Mo. 592; Sutton v. Casseleggi, 77 Mo. 405; Keith v. Keith, 80 Mo. 129; Mueller v. Kaessman, 84 Mo. 324; Dyer v. Wittler, 89 Mo. 93; Bradley v. Railroad, 91 Mo. 498; Thomas v. Black, 113 Mo. 70; Fischer v. Siekmann, 125 Mo. 178; Melton v. Fitch, 125 Mo. 290; Northcutt v. Eager, 132 Mo. 265; Howell v. Jump, 140 Mo. 456; Tiedeman on Real Property (1 Ed.), secs. 64, 65, and 400; 1 Am. and Eng. Ency. of Law (2 Ed.), 807, 808. (4) As defendant and those under whom he claims acquired the life estate of Ann P. Henderson in the lands, they were bound to pay the taxes and keep up the repairs. Reyburn v. Wallace, 93 Mo. 326; Bone v. Tyrrell, 123 Mo. 175, 188; Childers v. Schants, 120 Mo. 314; Pike v. Wassell, 94 U.S. 715; 2 Desty on Taxation (1 Ed.), pp. 695, 696; Tiedeman on Real Property (1 Ed.), sec. 68. (5) The one-year statute of limitation (sec. 4268, R. S. 1899) does not apply to the facts in this case, and the trial court erred in refusing to give instructions numbered 3, 4, and 5, asked by plaintiff, and in giving instruction numbered 1, asked by defendant. Fairbanks v. Long, 91 Mo. 635; Charles v. Morrow, 99 Mo. 646; Pharis v. Bayles, 122 Mo. 124; Brown v. Rogers, 125 Mo. 400; Shumate v. Snyder, 140 Mo. 77; Howell v. Jump, 140 Mo. 457; Collins v. Pease, 146 Mo. 135.

Harber & Knight and Samuel Hill for respondent.

(1) Estates tail were abolished by statute long ago, and reversions and remainders by which estates are postponed to a succeeding generation, while permitted by our laws, are looked upon with disfavor. Godman v. Simmons, 113 Mo. 130; Jones, Law of Real Property, sec. 734. Hence, the Legislature, in 1874, passed what is now section 4268, Revised Statutes 1899, and what was numbered in the Revision of 1889 as section 6770, by which a one-year statute of limitations was enacted applicable to all persons answering to a certain description: i. e., all persons becoming entitled to bring an action on a certain date (the equitable title theretofore having emanated from the Government more than ten years) and who have been out of possession for thirty years before such date and have paid no taxes for that length of time, and another in possession at such date, must then bring an action within one year or they are forever barred. (2) This statute was not enacted as a revenue measure, but as a statute of repose, that when remainders were carried over for thirty years, then so soon as thereafter on any day they might or could bring their action against another in possession they would be held to greater vigilance and be required to so bring their action within a year instead of ten. That is, when certain conditions exist, descriptive merely of the persons to whom they are made applicable, then the statute of limitations, as to all so situated, is one year instead of ten. Collins v. Pease, 146 Mo. 135. (3) The contention "that the claimant's right of action must exist at all times for the full period of thirty years" is refuted by the very language and terms of the statute. Sec. 4268, R. S. 1899. Such contention requires the writing in of exceptions and limitations which is not permissible. Collins v. Pease, supra. (4) There is no element of adverse holding during the thirty years in this statute, and, hence, the familiar doctrine of Fischer v. Seikmann, 125 Mo. 165, and Philips v. La Forge, 89 Mo. 72, and kindred cases cited by appellant, that the possession of the tenant for life is not adverse to that of the remainderman, does not apply in this case. After the expiration of the thirty years and during the one-year period, after the life estate has fallen in, the possession becomes adverse. 1 Am. and Eng. Ency. Law (2 Ed.), 809. (5) This statute is constitutional. 13 Am. and Eng. Ency. of Law (1 Ed.), p. 695, and authorities cited.

MARSHALL J. Burgess, C. J., dissents.

OPINION

In Banc

MARSHALL, J.

The parties have agreed that the following statement, made by appellant's counsel, is correct, and it is therefore adopted:

"This is an action in ejectment for the recovery of the northeast quarter of the northwest quarter of section 14, township 61 range 24, in Grundy county, Missouri.

"On August 10, 1840, the land in suit, together with other lands, was entered from the Government by George Richard. On February 12, 1844, the said George Richard and his wife, by warranty deed, sold and conveyed to Ann P. Henderson, 'the said party of the second part and to her bodily heirs and assigns forever,' the land here sued for, 'to have and to hold the said tract or parcel of land with all the appurtenances thereunto belonging or anywise pertaining to the only proper use, benefit and behoof of the said party of the second part and her bodily heirs and assigns forever.'

"On October 19, 1852, William C. Harvey, as sheriff of Grundy county, Missouri, levied upon and sold all the right, title and interest and claim, estate and property of Henry M. Henderson, the husband of Ann P. Henderson, in and to the land here sued for, under an execution issued on a judgment rendered in the circuit court of Grundy county, Missouri, on October 22, 1851, against Henry M. Henderson and Ira Benson. At said sale Robert H. Benson became the purchaser and received a sheriff's deed dated October 20, 1852. The defendant claims title through successive conveyances from said Benson.

"Ann P. Henderson and Henry M. Henderson were married about the year 1838. They were in possession of the land in suit prior to October 20, 1852, the date of the sheriff's deed, and after that time, in 1852 or 1853, they moved to the state of California and never returned to this State. They continued to live together as husband and wife until the death of Mrs. Henderson. She died intestate on August 16, 1891, in Lake county, Oregon, and her husband, Henry M. Henderson, died intestate, on December 13, 1895, in Mountain View, Santa Clara county, California. There were nine children born of their marriage, six of whom survived their parents and are plaintiff's grantors in the conveyance under which he claims title to the land in suit. These six are the only children and sole heirs of said Ann P. Henderson and Henry M. Henderson. They are William H. Henderson, aged about 55 years; Victor T. Henderson, aged about 49 years; Melvina J. Gruelle, wife of W. C. Gruelle, aged 46 years; Vincent S. Henderson, aged 43 years; Edward P. Henderson, aged 40 years; and Levin J. Henderson, aged 34 years.

"On July 8, 1896, V. S. Henderson, in his own behalf and as attorney in fact for the other heirs of Ann P. Henderson powers of attorney to him having been executed by them, executed a quitclaim deed to plaintiff of the lands in suit. The petition in this case was filed July 27, 1896, and summons was served on the same day. The answer was filed October 5, 1896. It was afterwards discovered that the acknowledgment of the deed from the Henderson heirs to plaintiff did not conform strictly to the Missouri form of acknowledgment and on November 30, 1896, the said V. S. Henderson, for himself and the other heirs, executed and delivered to plaintiff another deed to the same lands. This last deed was the one read in evidence. On January 8, 1897, both the petition and answer were refiled, as the pleadings themselves and the records of the court show, and the case was tried on May 1, 1897. It was agreed between the parties, on the trial of the case, that if plaintiff was entitled to recover at all he was entitled to recover rents and profits at the rate of seventy-five dollars a year from the first day of December, 1896;...