Meddis v. Wilson
| Decision Date | 27 May 1903 |
| Citation | 74 S.W. 984,175 Mo. 126 |
| Parties | MEDDIS, Appellant, v. WILSON et al |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Circuit Court. -- Hon. Henry C. Riley Judge.
Affirmed.
R. L Wilson, F. E. Burrough and M. A. Dempsey, for appellant.
It is contended by counsel on the other side that this action has been barred by lapse of time. It is admitted that their contention would be correct if the right had not been saved by section 4285, Revised Statutes 1899. Teresa Albert devisee of John Albert, deceased, brought an action of ejectment against certain defendants, through whom the defendants herein claim to have derived therein title and right to possession. She died in 1896 and the action was revived by her heirs. The personal assets of John Albert's estate were insufficient to pay its indebtedness and accordingly while said action of ejectment was pending the probate court ordered the real estate involved in said action to be sold to pay the debts of the estate and the present plaintiff, who is the only unpaid creditor of John Albert, became the purchaser at a sale had in pursuance of said order. The effect of said order and sale was to divest the heirs of Teresa Albert, the former plaintiff, of all right and claim to said property and to transfer to the present plaintiff, who was the sole unsatisfied creditor, all the rights and claims of the heirs and devisees of John Albert so far as the title to said property was concerned. Page v. Culver, 55 Mo.App. 66; Schultz v. Lindell's Heirs, 40 Mo. 355; Jackson v. McGruder, 51 Mo. 55; Gelb v. Montague, 102 Ill. 446; Foot v. Overman, 22 Ill.App. 181. The heirs of Teresa Albert then having no further interest in prosecuting said suit, permitted a nonsuit to be entered; and thereupon within less than one year the present plaintiff instituted this action. It is contended by our opponents that since we do not come expressly within the letter of the statute, not being the original plaintiff, or the "heir or executor or administrator," we have no right of action. We claim that the right of action herein was an asset of the estate of John Albert; that the suit of Teresa Albert perpetuated and kept alive that asset; that the probate court had the power to dispose of such asset to satisfy claims of creditors of the deceased, and had the power to and did transfer to the purchaser at the sale, not a dead claim, but a living right of action; and we claim that by a fair and sensible construction of the statute the Legislature intended to grant, and did grant, not a mere personal right, but an extension of life to the right of action itself, and that the act vests the right of action in the present plaintiff. Shively v. Berion, 24 Kan. 352; Moody v. Threlkeld, 13 Ga. 55; Anthony Mo. Co. v. Law, 61 P. 745; McWhirt v. McKee, 6 Kan. 412; Thornburgh v. Cole, 27 Kan. 490; Harrison v. McMurray, 71 Tex. 122; Bank v. Magness, 11 Ark. 344; Walkers v. Peay, 22 Ark. 103; Railroad v. Morees, 49 Ark. 246; Smith v. McNeal, 109 U.S. 426; Glenn v. Liggett, 135 U.S. 533; Tiffin v. Lewis, 52 Mo. 49; Patton v. McGrath, 1 McNull (S. C.) 212; Armstrong v. Nixon, 16 Tex. 610; Myraham v. Regan, 24 Miss. 213; Hull v. Deatley's Admr., 70 Ky. 687; Baker v. Baker, 13 B. Mon. (52 Ky.) 406.
L. F. Parker and M. R. Smith for respondents.
(1) It is admitted by appellant in his statement that the statute of limitations began to run against John Albert in August, 1880, and having run against him it would continue to run against his heirs notwithstanding the suit by Teresa Albert, his devisee, even though the heirs were, at the time descent was cast, laboring under some statutory disability, which was not so in this instance. Rogers v. Brown, 61 Mo. 195; Cunningham v. Snow, 82 Mo. 592; Pim v. St. Louis, 122 Mo. 666; 3 Patt. Comp. Digest, p. 2327. (2) The statute barred his (John Albert's) heirs, for they brought no suit, and no person representing them brought any for them, and hence any interest or claim that they had in the property was barred long before the executor sold the property to pay their ancestor's debts. Wood on Limitations (3 Ed.), p. 12; Bozeman v. Browning, 31 Ark. 379. (3) This suit, brought by a purchaser of John Albert's property, sold by the executor of his last will to pay his debts, can not be held to be a continuation of the suit brought by Teresa Albert as his devisee, which, after her death, was revived in the names of her (children) heirs and legal representatives, for the reason that the old suit, while Teresa Albert was living, was to recover property alleged to belong to her, and after she was dead it was changed into a suit to recover property alleged to belong to her heirs and legal representatives, but it was never a suit to recover property alleged to belong to John Albert's estate, or to protect any right that he had in it. R. S. 1899, sec. 4285; Cheeny's Admr. v. Archer , Riley 199; Ross v. Sims, 27 Miss. 361; Williams v. Council, 4 Jones L. (N. Car.) 216; Moss v. Keesler, 60 Ga. 44; Patton's Admr. v. Magrath, 1 McMul. 212; Hughes v. Brown, 8 L. R. A. (Tenn.) 482; Harrison v. McMurray, 71 Tex. 127; Siegfried v. Railroad, 50 Ohio St. 296; Whetstine v. Wilson, 104 N.C. 388; Crow v. State, 23 Ark. 692. Abandonment of suit and dismissal by the court for the want of prosecution: Lawrence v. Winefrede Coal Co., 35 S.E. 926; Pardy v. Town of Mechanicsville, 101 Iowa 268; Lock Tutrix v. Barrow, 25 La. Ann. 18; Patton's Admr. v. Magrath, supra. (4) This suit, brought by appellant (Sept. 4, 1899), is not within the letter or spirit of section 4285, Revised Statutes 1899 (). Karnes v. Ins. Co., 144 Mo. 419.
OPINION
This is an action in ejectment, instituted on the 4th day of September 1899, in the Cape Girardeau Circuit Court, to recover possession of the following described real estate situate in said county, to-wit: "The northwest quarter of section nine in township twenty-nine north, of range twelve east, containing one hundred and sixty acres, except a strip of ground one hundred feet wide across the same occupied by the Belmont branch of the St. Louis, Iron Mountain and Southern railway as a roadbed and right of way, and a strip of ground one hundred feet wide across the same occupied by the Southern Missouri & Arkansas Railway Company as a roadbed and right of way, and a strip of ground across the same one hundred feet wide occupied by the Gray's Point Railway Company."
The judgment was for the defendants, and the plaintiff appeals. The defendant, the Southern Missouri & Arkansas Railroad Company, is the landlord in possession of the premises by its tenants, the other defendants. The common source of title is the Cape Girardeau & State Line Railroad Company. The plaintiff claimed title under two deeds, one dated November 4, 1875, from the marshal of Cape Girardeau Court of Common Pleas, conveying all the right, title, and interest of the said Cape Girardeau & State Line Railroad Company in the premises to John Albert, duly executed in pursuance of a sale on execution under a judgment of said court dated January 30, 1874, against said railroad company, in favor of John Albert and Sebastian Albert, and the other dated February 8, 1899, from the administrator of the estate of said John Albert, deceased, conveying all the right, title and interest of which he died seized in the premises to the plaintiff.
The answer was a general denial, a plea of the statute of limitation, and two pleas of estoppel.
The defendants claimed title by mesne conveyances from the common source; under which, their grantors went into actual possession of the premises, and as plaintiff concedes that the defendants and those under whom they claim have been in actual, continuous, adverse possession of the premises for more than ten years before this suit was brought, and defendants do not now rely upon their paper title, but upon their defense of the statute of limitations and estoppel, it is unnecessary to set out the defendant's chain of title. Counsel for plaintiff admit that this action is barred by lapse of time, unless the facts to be presently stated bring the case within the provisions of section 4285, Revised Statutes 1899 (sec. 6784, R. S. 1889), which is as follows:
"If any action shall have been commenced within the times respectively prescribed in this chapter, and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or, after a judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered or such judgment arrested or reversed; and if the cause of action survive or descend to his heirs, or survive to his executors or administrators, they may, in like manner, commence a new action within the time herein allowed to such plaintiff, or, if no executor or administrator be qualified, then within one year after letters testamentary or of administration shall have been granted to him."
The facts relied upon to bring the case within the provisions of this statute are as follows:
On the 25th of September in the year 1881, John Albert died testate. By his last will and testament, duly admitted to probate on the 5th day of October, 1881, he devised the premises to his wife, Teresa Albert, and on the same day letters testamentary and of administration were granted and issued on his estate. Afterwards on the 10th day of April, 1888, a suit in ejectment to recover possession of the premises was instituted by the said ...
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