Majors v. Cryts

• Decision Date: 29 February 1912
• Citation: 144 S.W. 769,240 Mo. 386
• Parties: MAJORS et al. v. CRYTS et al.
• Court: Missouri Supreme Court

144 S.W. 769

240 Mo. 386

MAJORS et al. v. CRYTS et al.

Supreme Court of Missouri, Division No. 1.

February 29, 1912.

1. CURTESY (§ 4)—ESSENTIALS—"SEISIN IN DEED" AND "SEISIN IN LAW."

Curtesy is supported by seisin of the wife, either in law, which is a right of immediate possession independent of actual or constructed possession, or seisin in deed, which is actual possession.

2. CURTESY (§ 4)—WHO MAY CLAIM—SEISIN.

The possession of a tenant by the curtesy is exclusive, and so he is not a cotenant of the heirs of his wife, for tenants in common have among themselves a common right to possession and to rents and profits, and hence such heirs have neither seisin in fact nor in law, and consequently a husband of an heir who died before the curtesy tenant cannot also claim curtesy.

3. JUDGMENT (§ 251)—RELIEF—CONFORMITY TO ISSUES.

In ejectment, where the only issue was whether plaintiffs' right of action had been barred by limitations, a judgment decreeing no title in plaintiffs and full title in defendants was improper.

4. APPEAL AND ERROR (§ 1073)—HARMLESS ERROR—JUDGMENT.

Though judgment in ejectment, decreeing title in defendants, and that plaintiffs had no title, was improper where the only issue was whether plaintiffs' right of action had been barred by limitations, the error was not ground for reversal, where the proof clearly showed that defendants had title by adverse possession.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Ejectment by Samuel P. Majors and others against James Cryts and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Wilson Cramer, for appellants. Wammack & Welborn, for respondents.

VALLIANT, J.

Ejectment for an undivided one-fourth of lot 2 in the N. E. ¼, section 2. township 25, range 9, Stoddard county. There is very little, if any, dispute about the facts. Plaintiffs inherited the interest sued for from their mother and are entitled to recover unless their right of action is barred by the statutes of limitations, and it is barred unless their father, who survived their mother, had an estate by the curtesy in the land which prevented the running of the statute during his lifetime. Rebecca J. McMillan, who was the plaintiffs' grandmother, is the common source of title. She died in June, 1864, leaving her husband, John McMillan, and their six children, of whom the plaintiffs' mother, Mary Ann McMillan, was one. Mary Ann married P. P. W. Majors, plaintiffs' father, and died in November, 1864, leaving, her surviving, her husband and three children, who are the plaintiffs in that suit. John McMillan died in 1889 or 1890. P. P. W. Majors died in 1907. Two of the six children of Rebecca J. McMillan died unmarried and without issue. In 1881 Daniel W. Horton obtained a deed purporting to convey all of the lot 2 above mentioned, signed by John McMillan, and the three then surviving children of Rebecca, and signed also by P. P. W. Majors. Horton went into possession under the deed which was duly recorded. The title he acquired by that deed has since passed by mesne conveyances to the defendants, and the possession taken by Horton in 1881 has continued in him and his successors in his title until the present time. Mary Ann having died during the lifetime of her father, John McMillan, therefore before the termination of his estate by the curtesy, was never in the actual possession of the interest she inherited from her mother, and the court held that for that reason her husband acquired no estate by the curtesy; that the statute of limitations began to run against the plaintiffs at the death of John McMillan in 1889 or 1890. This suit was begun in 1907. The judgment was for the defendants, and the plaintiffs appeal.

I. There is no question but that John McMillan's estate by the curtesy began at the death of his wife in 1864, and continued until his own death in 1889 or 1890. The title in fee descended to the children of Rebecca at her death in 1864, and they would then have been entitled to immediate actual possession if it had not been for the curtesy estate of their father, but that estate intervening excluded them from actual possession or right of possession until his death, which did not occur until after the death of plaintiffs' mother. The question is: Did P. P. W. Majors, plaintiffs' father, ever have an estate by the curtesy in the land sued for? If he did have such an estate, it continued until his...