Harris v. Ross

• Decision Date: 30 April 1885
• Citation: 86 Mo. 89
• Parties: HARRIS et al., Plaintiffs in Error, v. ROSS.
• Court: Missouri Supreme Court

86 Mo. 89

HARRIS et al., Plaintiffs in Error,

v.ROSS.

Supreme Court of Missouri.

April Term, 1885.

Error to Morgan Circuit Court.--HON. E. L. EDWARDS, Judge.

REVERSED.

R. F. Buller for plaintiffs in error.

(1) A conveyance made by a minor may be avoided in various ways; among others, by bringing an action of ejectment for the recovery of the land at any time within the period of the statute of limitations. Cole v. Pennoyer, 14 Ill. 158; Chadburn v. Radcliff, 30 Me. 354; 1 Am. Lead. Cases (4 Ed.) 256, and cases cited; Schouler Dom. Rel. 585; Tyler on Infancy and Coverture, 67; Reeves' Dom. Rel. 372, and note. And in this state the period is not less than three years after attaining majority, and may be ten years, depending on the age of the party when the conveyance is made. 1 R. S., sec. 3222; Peterson v. Laik, 24 Mo. 544; Caho v. Endress, 68 Mo. 224, and cases cited; Huth v. Carondelet, 56 Mo. 203. And no previous act of disaffirmance is necessary before bringing ejectment. Chadburn v. Radcliff, 30 Me. 354; Cole v. Pennoyer, 14 Ill. 158; 1 Am. Lead. Cases, 256; Youse v. Norcum, 12 Mo. 549; Peterson v. Laik, 24 Mo. 541; Jackson v. Carpenter, 11 Johns. 538. And this is especially the case in reference to the disaffirmance by a married woman. Magee v. Welch, 18 Cal. 155. And such disaffirmance may be by the heir of a deceased minor. Ferguson v. Bell, 17 Mo. 347, 351. Previous to the revision of 1865, a woman under twenty-one was a minor. Caho v. Endress, 68 Mo. 224, 228. (2) Plaintiff's mother never had a right of action to recover the possession of the land, and plaintiff had none until the death of her father, in 1861, and she was then a minor and still had three years after attaining her majority. Dyer v. Bannock, 66 Mo. 422; Valle v. Obenhauser, 62 Mo. 81; Carr v. Dings, 54 Mo. 95; Miller v. Bledsoe, 61 Mo. 96; R. S., sec. 3223. (3) A married woman who is a minor need not refund before maintaining ejectment in avoidance of her deed. Dill v. Bowen, 54 Ind. 204; 2 Cent. Law Journal, 343; Reeves' Dom. Rel. 371, and note; Curry v. Barton, 32 Mich. 30; 15 Gratt. 329; 27 Vt. 268; 110 Mass. 399; 6 Gray, 282. (4) As the law stood in 1857 and 1858, Caplinger, the husband, had the right to the possession of his wife's land, which right he could and did convey, and such conveyance deprived his wife and her heirs of all right of action for the possession until his death, in August, 1861, and this, whether he was tenant by the courtesy initiate or not. Bryan v. Wear & Hickman, 4 Mo. 106; Valle v. Obenhause, 62 Mo. 81; Brown v. Moore, 74 Mo. 633; Beal v. Harman, 38 Mo. 435.T. M. Rice for defendant in error.

(1) Curtesy is an estate to which, by law, a man is entitled, on the death of his wife, in the lands of which during the coverture, she was seized, provided they have had birth of issue, alive, capable of inheriting. Bouvier's Law Dictionary. Curtesy initiate implies birth of issue, and until the birth of issue, there can be no curtesy initiate. Bouvier's Law Dictionary; 1 Wash. on Real Property (3 Ed.) 166. Thomas J. and Martha Caplinger's deed to property in dispute, was made July 27, 1857; the plaintiff, Nancy, was born October 5, 1857, some three months after the date of the deed. So that it is not true, as assumed by plaintiff, that plaintiff's father, at the date of the deed, was a tenant by the curtesy initiate. His rights at the date of the deed were merely inchoate. (2) The deed to Masters, from Martha A. Caplinger, was not void, but only voidable. Tyler on Inf. & Cov., sec. 14; Ferguson v. Bell, 17 Mo. 347; Baker v. Kennett, 54 Mo. 82. (3) Martha Caplinger's deed to Masters conferred upon him, if not a rightful legal title, in form, an absolute title, and, coupled with continuous adverse possession, is sufficient to sustain the statute of limitations. Teller v. Burtis, 9 Johns. 174; Young v. Ellis, 13 Johns. 118; Gilliland v. Woodruff, 1 Conn. 276; Honebert v. Trinity Church, 24 Wend. 587. And it has been held that possession, under a void deed, with claim of title, is sufficient to give effect to the statute of limitations. Society of Cincinnatus v. Osborn, 2 Ala. L. J. 457; Hilton v. Bender, 2 Han. (4 S. C.) 270; Hall v. Low, 102 U. S. 461. A deed, to constitute color of title, must, apparently, transfer title. Coleman v. Beings, 89 Ill. 183; Mulford v. LeFrank, 26 California, 88.

RAY, J.

This is an action of ejectment for the undivided one-half of the northwest quarter of the southwest quarter of section eighteen, township forty-two, range sixteen, in Morgan county, Missouri. The petition was in the usual form, alleging, among other things, that plaintiffs were husband and wife, and that the real estate in question belonged to the wife, Nancy Harris. The suit was brought in the Morgan circuit court, August 20, 1878. The answer, in addition to a general denial, set up the statute of limitations in bar of the action. The replication, in answer to the new matter set up in the answer, alleged that the plaintiff, Nancy Harris, is the real owner of the land, and that she was a minor, under age, until within three years next before the bringing of this action, and that the statute of limitations is no bar to her recovery.

The material facts of this case, as gathered from the record, are as follows: That one Martha Caplinger, the wife of Thomas Caplinger, is the common source of title; that she was seized, in fee, of the undivided one-half of the land in controversy at the date of her marriage with her husband, Caplinger; that there was born of this marriage one child, only, to-wit, Nancy Harris, the plaintiff in this action, who was born October 5, 1857; that said Martha Caplinger, the mother of said plaintiff, Nancy, was born March 23, 1838, married Thomas Caplinger October 22, 1856, and died in June, 1858, being at the date of her death a minor, under twenty-one years of age; that on July 27, 1857, some three months before the birth of her said daughter, Nancy, the plaintiff, said Martha and her husband (in conjunction with her brother, William French, who was seized of the other undivided half of said land), joined in a deed of general warranty for the land in suit to one Masters, under whom the defendant, by mesne conveyances, claims title to the whole of said land; that said Thomas Caplinger, the husband of said Martha, survived his wife, and died August 10, 1861; that defendant, shortly after said conveyance to Masters, took possession of said land, and has occupied the same continuously ever since, under claim and color of title, for a period of some twenty-one years; and that the plaintiffs were married in 1874; from all which it appears that the plaintiffs claim in right of the wife, Nancy, who claims to have inherited an undivided half of said land from her mother, Martha Caplinger, who died under coverture and a minor; and that defendant claims title to the whole tract under and by virtue of the said deed of said Martha and Thomas Caplinger, and her said brother, William French, to said Masters, made in July, 1857, as aforesaid, and, also, by adverse possession under the statute of limitations. It, also, further appears that plaintiffs claim the right of the wife to avoid said deed of her mother, by reason of her minority at the date of its execution, and, further, that the statute of limitations does not run against her, by reason of her minority.

The case was tried by the court, and after the introduction of testimony tending to establish the material facts hereinbefore set out, the court refused, among others, the following declarations of law, asked by the plaintiff:

“1. That if the court believed from the evidence that Isaac C. French died on July 20, 1838, owning the land in controversy, leaving two children, only, William L., born March 6, 1837, and Martha A., born March 23, 1838; that said Martha A. married Thomas J. Caplinger October 22, 1856, and died in June, 1858, and left surviving, her husband, who died August 10, 1861, and one child, the plaintiff Nancy, born October 5, 1857, and who was married to plaintiff, George T. Harris, in 1874, the court would find the issues for the plaintiffs, notwithstanding the court might further believe from the evidence that on the twenty-seventh of July, 1857, the said Martha and her husband made a conveyance of her undivided interest in the land to Andrew Masters, and that defendant had been in possession ever since, claiming under said Masters.”

“2. That if the land descended to plaintiff Nancy's mother, while she was a minor, and that she died before she came of age, and plaintiff, Nancy, was a minor when her mother died, and not twenty-one years of age when this suit was brought, then adverse possession since 1857 or 1858 was no bar.”

The court gave, among others, the following declarations of law for the defendant:

“1. That if Martha J. Caplinger, at the time of making her deed to Masters, on the twenty-seventh of July, 1857, was a married woman, then the execution and delivery of the said deed created by operation of law a possession of the land in controversy in said Masters, adverse to any claim of said Martha Caplinger, and that if said Martha died in June, 1858, leaving plaintiff, Nancy, as her only heir, and that said Nancy has failed to bring her action for possession of the premises for more than ten years from the date of the said Masters' adverse possession, and more than three years after her mother's death, then the plaintiff is barred by the statute of limitations.”

“3. That the only evidence of the revocation of the said deed of Martha Caplinger to Masters is the bringing of this suit on the twentieth of August, 1878, more than twenty-one years after the said deed was made, which was not within a reasonable time, and said deed to Masters, therefore, estops plaintiff.”

“4. That if defendant, or those under whom he claims, have been in possession of the land since 1857, under claim of title, the plaintiff cannot recover.”

Whereupon the...