Linville v. Greer

• Decision Date: 26 November 1901
• Citation: 165 Mo. 380,65 S.W. 579
• Parties: LINVILLE v. GREER et ux.
• Court: Missouri Supreme Court

65 S.W. 579

165 Mo. 380

LINVILLE v. GREER et ux.

Supreme Court of Missouri, Division No. 2.

November 26, 1901.

HUSBAND AND WIFE—WIFE'S LAND—DEED —ACKNOWLEDGMENT—JUSTICE OF THE PEACE —MAYOR—CERTIFICATE—CONSTRUCTION—INTEREST CONVEYED — MINOR — DISABILITY— DISAFFIRMANCE.

1. Under Rev. St. 1845, c. 32, §§ 35, 37-39, requiring that the deed of a married woman to convey her real estate must be executed by herself and husband, and acknowledged by them, and certified by some court having a seal, or some judge, justice, or clerk thereof, a deed of a wife's land, executed by herself and husband, and acknowledged before a justice of the peace, in 1852, conveyed only the husband's life estate, which he held as tenant by the curtesy.

2. Under Laws 1852-53, p. 244, art. 2, § 1, providing that the act to incorporate the city of St. Joseph (Laws 1850-51, p. 88) shall be applicable to, and in full force in, the city of Kansas, and article 3, § 6, of such act, authorizing the mayor to take acknowledgments of deeds and all other instruments affecting the title to lands, the deed of a married woman, executed by herself and husband, and acknowledged before the mayor of Kansas City, is effectual to convey her land.

3. Under Laws 1850-51, p. 88, art. 3, § 6, authorizing the mayor to take acknowledgments, his right to take such acknowledgments was not confined to the city limits, but extended throughout the county.

4. Where the certificate of acknowledgment to a deed executed by a married woman and her husband complies in every essential with the requirements of the statute, it need not also state that the wife executed the deed as a party thereto.

5. Where a daughter executed a deed granting "the two undivided ninths part of our mother's dower in all the lands belonging to the estate" of her deceased father, who died intestate, "to have and to hold the two undivided ninth parts of the above-described real estate, after the death of our mother, * * * unto the said" grantee, "his heirs and assigns, forever, in fee simple absolute forever," such deed should be construed as conveying the two-ninths interest of the daughter in the fee of the land in which her mother had the dower interest, and not as a conveyance of two-ninths of such dower, in which the grantor had no interest, and which expired the instant the possessory rights of the grantee were to take effect.

6. Where a deed is executed by a female minor, who is then married, or who marries before reaching her majority, it is not necessary that she take any action to disaffirm the deed during the disability of coverture; and if she dies before her husband, without ratifying the deed, it may be disaffirmed by her heirs at any time within 10 years after her death.

Appeal from circuit court, Clay county; E. J. Broaddus, Judge.

Action by Jennie Linville against Robert A. Greer and wife. From a judgment for defendants, plaintiff appeals. Reversed.

This is an action of ejectment for the possession of lots 14 and 15 of Independence Avenue addition to Kansas City, Mo. The petition is in the usual form in such cases, and the answer a general denial, and a plea of the 10-years statute of limitations. Plaintiff replied to the answer, denying all allegations therein, and also alleging that one of the deeds in defendant's supposed chain of title, claimed to have been executed by James J. Priddy and Nancy A. Priddy and Elizabeth Jones, was executed when Nancy A. Priddy was, and ever since has been, the wife of James J. Priddy, and that at that time both Nancy A. Priddy and Elizabeth Jones were minors, under lawful age. The case was tried by the court, a jury being waived. The trial resulted in a judgment for defendants, from which plaintiff, after unsuccessful motion for a new trial, appeals.

Both parties claim under one Thomas Jones,—the plaintiff by deed from one of his grandchildren, and the defendant by mesne conveyances. Plaintiff testified that her mother's name was Elizabeth F. Jones, who married W. P. Linville in the year 1854; that they had five children; that her mother moved to California in May, 1853, with her sister, Mrs. Priddy, and husband, and died there in November, 1892; that neither her mother nor Mrs. Priddy ever returned to Missouri; that Mrs. Priddy had six children, the first one being born in 1852; that Mrs. Linville's first child was born in 1856; that George W. Priddy is a son of Nancy Priddy, whose mother, Nancy, died in 1892; that her husband, James J. Priddy, died in 1896, and that her father is still living; that her mother was 17 years old when she went to California; had often heard Mrs. Priddy say so; that Mrs. Priddy left four children, her heirs at law, living at the time of her death, and Mrs. Linville five at the time of her death. Mattie Linville testified substantially to the same effect.

In addition to this evidence, the case was submitted upon the following agreed statement of facts:

"(1) That at the time the deed recorded in Book U, at page 133, in the recorder's office of Jackson county, Missouri, on May 29, 1853, was executed and signed by James J. Priddy and Nancy A. Priddy, his wife, and Elizabeth F. Jones, said Nancy A. Priddy was the wife of James J. Priddy; that said Nancy A. Priddy and Elizabeth F. Jones were the daughters and lawful heirs of Thomas Jones, deceased, who, at his death, which occurred about the year 1843, was the owner of the southeast quarter of section 33, township 50, range 33, and the southwest quarter of the southwest quarter of section 34, same township and range, in Jackson county, Missouri; that during the year 1852 the circuit court of said county and state caused to be set apart to Martha Jones, wife of said Thomas Jones, a dower interest in thirty-one acres off of the east side of the southeast quarter of the southeast quarter of said section thirty-three, township fifty, and range thirty-three, and about twenty-two acres off of the west side of the southwest quarter of the southwest quarter of said section thirty-four, same township and range, in lieu of unassigned dower in the whole of Thomas Jones' land in said county and state; that Martha Jones took possession of, and had possession of, this tract of land, in which dower was assigned to her, until some time during the year 1868, about which time she died; that Nancy J. Priddy and Elizabeth Jones, the wife of William E. Linville, owned each an undivided one-ninth (1/9) interest in all the land belonging to Thomas Jones at his death, which embraced the land assigned to Martha Jones as her dower, as above stated; the said Nancy A. Priddy and Elizabeth Jones were two (2) of the nine (9) heirs of said Thomas Jones, deceased, and that Nancy A. Priddy was lawfully married to James J. Priddy October 14, 1849, and they remained husband and wife, living together as such, until the year 1892, at which time Mrs. Priddy died; that in the year 1854 said Elizabeth Jones was lawfully married to William E. Linville, and they lived together as husband and wife until some time during the year 1892, at which time Mrs. Linville died; that both James J. Priddy and Nancy A. Priddy died prior to the filing of this suit; that James J. Priddy's death occurred during the year 1896; that G. W. Priddy is the son of Nancy A. Priddy and James J. Priddy; that Jennie Linville is the daughter of Elizabeth Jones and William E. Linville, and the granddaughter of said Thomas Jones, deceased; that Independence Avenue addition is a part of, and located in, the southwest quarter of the southwest quarter of section thirty-four (34), township (50), and range thirty-three (33), in Jackson county, Missouri, and is located on said land assigned to Martha Jones for life as her dower in said estate; that defendants were at the time of the filing of this suit in sole possession of said property, claiming to be the exclusive owners, and at said times denied that plaintiff had any interest in said property; that defendants claim title to said property mentioned in plaintiff's petition through said deed recorded in said Book U, at page 133, acknowledged by Nancy A. Priddy and Elizabeth Jones before W. S. Gregory as mayor of Kansas City aforesaid; that Jennie Linville owned at the time of the filing of this suit, and now owns, the interest in this property of G. W. Priddy, having acquired the same by warranty deed from said G. W. Priddy, son of said Nancy A. Priddy; that said Nancy Priddy and husband and said Elizabeth Jones moved from Kansas City, Mo., about the 5th day of May, 1853, to the state of California, and have never returned to the state of Missouri. It is further admitted that said defendants and their grantors have held open, notorious, exclusive, and continuous possession of said lots from the date of the death (1868) of Martha Jones to the present time, and that plaintiff, nor no one for her, has paid the taxes on said land since the death of Martha Jones. It is further agreed that an abstract of title to said lots in question, if duly certified by a reputable abstracter, shall be accepted as prima facie evidence of the things therein stated; that at the time said Gregory took the acknowledgment to said deed recorded in Book U, at page 133, neither the property in controversy, nor the land of Thomas Jones aforesaid, was in the limits of Kansas City, Missouri. [Signed] James G. Smith, Attorney for Defendants, R. A. Greer and Mary B. Greer. Samuel P. Forsee, Attorney for Jennie Linville in Case of Jennie Linville v. Robt. A. Greer and Wife."

It is also agreed that on August 31, 1887, Nancy Priddy and James J. Priddy, her husband, the makers of the deed acknowledged before Gregory as mayor of Kansas City, executed and delivered to S. P. Forsee a power of attorney which asserted ownership of said property, and authorized and directed said Forsee to bring suit for the makers of said deed to recover said makers' interests in all the property belonging to Thomas Jones at his death, and...