Jones v. Thomas

• Decision Date: 12 November 1894
• Citation: 28 S.W. 76,124 Mo. 586
• Parties: Jones, Appellant, v. Thomas et al
• Court: Missouri Supreme Court

28 S.W. 76

124 Mo. 586

Jones, Appellant, v. Thomas et al

Supreme Court of Missouri, First Division

November 12, 1894

Appeal from the Howell Circuit Court. -- Hon. W. N. Evans, Judge.

Affirmed.

A. H Livingston for appellant.

(1) When the land was attached Thomas had abandoned his home and his family, and his wife having failed to assert her homestead rights, as provided by section 5435, Revised Statutes, her homestead interest was defeated by the attachment and sale thereunder. Blandy v. Asher, 72 Mo. 27. (2) All the interest that Obedience Thomas could have in the land, under any circumstances, would be the right of homestead and dower after her husband's death, and neither of these, nor both, could be asserted so as to set in operation the statute of limitation as against the plaintiff. She lived on the land until her death and until her children were of age, and this possession could in no wise be adverse to plaintiff's title. Sutton v. Casseleggi, 77 Mo. 397; Keith v. Keith, 80 Mo. 125; Thomas v Black, 113 Mo. 66. (3) The instructions asked by plaintiff should have been given.

Olden & Orr for respondents.

(1) The finding and judgment, under the pleadings and evidence, are for the right party, and should not be disturbed, though error may have intervened. Rowell v. St. Louis, 50 Mo. 92; Galbreath v. Moberly, 80 Mo. 484. (2) When the statute of limitations begins to run, no subsequent event or disability will suspend its operation. Landes v Perkins, 12 Mo. 238; Smith v. Newby, 13 Mo. 159; Rogers v. Brown, 61 Mo. 187; Burdett v. May, 100 Mo. 13; Schlueter v. Albert, 39 App. 154. (3) Though the order of sequestration was insufficient to pass any estate to respondents and their mother, it was sufficient as color of title, and the taking of possession thereunder was such an assertion of adverse ownership as to start the statute of limitation in favor of respondents. Fugate v. Pierce, 49 Mo. 234; Hamilton v. Boggess, 63 Mo. 234; Hickman v. Link, 97 Mo. 482. (4) The right of dower in Mrs. Thomas did not give her the right to the possession as against the grantee of Nathan Thomas' interest, or bar ejectment by such purchaser. McClanahan v. Porter, 10 Mo. 746; Walker v. Mardus, 29 Mo. 25; McClurg v. Turner, 74 Mo. 45. (5) Mrs. Thomas had no quarantine right in the premises in question at the death of Nathan Thomas, her then divorced husband, under section 4533, Revised Statutes, 1889. McClurg v. Turner, 74 Mo. 45. (6) No exception to the running of the statute can be claimed, unless expressly mentioned in such statute. Fairbanks v. Long, 91 Mo. 628; Angell on Limitations [6 Ed.], 203.

OPINION

Black, P. J.

This is an action of ejectment for one hundred and sixty acres of land. All parties claim under Nathan Thomas. The defense, and the only defense, is the statute of limitations.

The plaintiff put in evidence a sheriff's deed, dated in April, 1879, conveying to him four hundred and eighty acres of land, the land in suit being a part thereof. This deed is based upon a judgment in an attachment suit brought by the present plaintiff against Nathan Thomas, the attachment having been levied on the twenty-seventh of February, 1878.

The defendants claim under Obedience Thomas. She brought a divorce suit against Nathan Thomas, returnable to the April term, 1878, of the circuit court. At that term she obtained a judgment, after personal service, for $ 200 alimony pending the suit. At the same term she obtained an interlocutory decree for divorce, and for $ 2,000 alimony, which interlocutory decree was made final at the October term, 1878. At that term the circuit court made an order or judgment of sequestration, setting apart to her one hundred and sixty acres of land, the same to include the property in which she resided. A commissioner was appointed, who set off the land in question to her.

The further evidence shows that Obedience Thomas and her children lived on this land at the date of the judgment of sequestration, and she continued to reside thereon, paying taxes and farming the same, and claiming it as her absolute property under that judgment. She died a few months before the commencement of this suit, and the defendants are her children. Nathan Thomas died in 1879 or 1880, about a year after the land had been set off to her. The abstracts do not show when this suit was commenced, but it seems to be conceded on all hands that Obedience Thomas had possession for more than ten years.

It is claimed by...