Powell v. Bowen

CourtUnited States State Supreme Court of Missouri
Writing for the CourtFARIS, J.
Citation214 S.W. 142,279 Mo. 280
PartiesBELLE POWELL et al., Appellants, v. MARY BOWEN et. al
Decision Date07 July 1919

Appeal from Pemiscot Circuit Court. -- Hon. Sterling H. McCarty Judge.

Reversed and remanded (with directions).

Duncan & Brewer for appellants.

(1) The deed made by Belle Powell and her husband, dated Sept. 15 1882, is null and void and did not convey the land in question to Leonard for the reason that the certificate of acknowledgment to said deed fails to recite that the said Belle Powell was first made acquainted with the contents of such instrument and acknowledged said deed on examination separate and apart from her husband, and does not recite she executed said deed freely and without compulsion or undue influence of her husband. 1 Wagner's Statute 1872, p 275, sec. 13, and sec. 14; Linville v. Greer, 165 Mo. 394; Mayes v. Price, 95 Mo. 613; Bartlett v. O'Donohue, 72 Mo. 563; Goff v. Roberts, 72 Mo. 570; Hoskinson v. Adkins, 77 Mo. 540; Hord v. Taubman, 79 Mo. 103; Rivard v. Railroad, 257 Mo. 164; Laclede Land & Imp. Co. v. Goodno, 181 S.W. 412; Bagby v. Emberson, 79 Mo. 139; Devlin on Deeds (3 Ed.), sec. 107. (2) As Belle Powell was married in the year 1870, and remained under said coverture from that time to the bringing of this suit, plaintiffs are not barred by either the twenty-four-year Statute of Limitations or the so-called thirty-year Statute of Limitations pled by defendant. Dyer v. Wittler, 89 Mo. 81; Vanata v. Johnson, 170 Mo. 274; DeHatre v. Edmonds, 200 Mo. 267; Bone v. Tyrell, 113, Mo. 188; Howell v. Jump, 140 Mo. 457; Shumate v. Snyder, 140 Mo. 87; Land & Imp. Co. v. Epright, 265 Mo. 215; Lewis v. Barnes, 199 S.W. 212; Graham v. Ketchum, 192 Mo. 15; Babcock v. Adams, 196 S.W. 1118; Smith v. Smith, 201 Mo. 533. (3) Plaintiffs are barred neither by laches nor by estoppel. Blodget v. Perry, 97 Mo. 273; Bales v. Perry et al., 51 Mo. 453; Dameron v. Jamison, 143 Mo. 491; Mayo v. Cartwright, 30 Ark. 407; Throckmorton v. Pence, 121 Mo. 50; Myers v. DeLisle, 259 Mo. 514; Lewis v. Barnes, 199 S.W. 212; Bigelow on Estoppel (3 Ed.), 484; Acton v. Dooley, 74 Mo. 69; Monks v. Beldan, 80 Mo. 642; Harrison v. McReynolds, 183 Mo. 549; Rutter v. Carothers, 223 Mo. 640; Shannon v. Thompson, 234 Mo. 15; Henry v. Sneed, 99 Mo. 425; Rannells v. Gerner, 80 Mo. 483. (4) The deed of a married woman defectively acknowledged does not operate as an estoppel against her. Devlin on Deeds (3 Ed.), sec. 5486; Drury v. Foster, 2 Wall. 34; Smith v. Ingram, 61 L.R.A. 678. (5) The doctrine of champerty and maintenance is not applicable to this case, for the plaintiffs will not be deprived of relief because the contract between plaintiff, Belle Powell, and the plaintiff, Bex A. Trimble, may be infected with champerty. Euneau v. Rieger, 105 Mo. 682. (6) The court erred in refusing instruction number I offered by the plaintiffs declaring that under the pleading and evidence in the case the finding should be that the plaintiffs are the owners of the land in question and that the defendant, Mary Bowen, was entitled to the possession of the premises as long as the marital relation existed between plaintiff, Belle Powell, and her husband, John W. Powell. (7) As plaintiff, Belle Powell, had the legal title to the land in question under the law there could be no abandonment of the title. Tiedeman on Real Property (3 Ed.), sec. 516; Corpus Juris, p. 10, sec. 14; Barrett v. Kansas Coal Co., 70 Kan. 649; Kreamer v. Boneida, 213 Pa. 80; Tarver v. Deppen, 132 Ga. 804; Tennessee Oil Co. v. Brown, 131 F. 699; Calledonia County Grammar School v. Kent, 77 Am. Dec. (Vt.) 880; Arnold v. Cramer, 41 Pa. Super, 13.

C. G. Shepard for respondents.

(1) Under the peculiar facts in this case both the twenty-four and thirty-one-year Statutes of Limitations are effective and are a complete bar to plaintiff's cause of action to quiet the title to the land in question. Faris v. Moore, 256 Mo. 123; Belfast Inv. Co. v. Curry. 264 Mo. 483; DeHatre v. Edmonds, 200 Mo. 246; Collins v. Pease, 146 Mo. 139; Fairbanks et al. v. Long, 91 Mo. 628. (2) Belle Powell and her husband abandoned the land in question in 1882, gave the land no attention from that date up to the time or just prior to the time this suit was filed, and such abandonment completely defeats their right of recovery in this case. Tayon v. Ladew, 33 Mo. 205; Shelton v. Horrell, 232 Mo. 358; Carson v. Verthoed & Jennings Lumber Co., 192 S.W. 1022. (3) Suits to quiet title under Section 2535 are not possessory actions, and the statute as first enacted did not contemplate recovering possession of the land to which the title was to be quieted under said section, therefore a married woman from and after the enactment of said section had a full and complete cause of action in her behalf for the purpose of quieting title to land, as did any other person, even though she was a married woman prior to the enactment of the Married Woman's Enabling Act and remained a married woman until the time of instituting suit. There being no exemption clause in the twenty-four or thirty-one-year Statutes of Limitations exempting married women from the operation of said statute, the courts have no right to read into said statute provisions that were not placed therein by the Legislature, therefore said statutes are as effective against married women as against other parties. (4) The Married Woman's Enabling Act emancipating her and making her sui juris, was encated in 1889; what is now Section 2535 was first enacted in 1897, and it must be presumed that at the time the Legislature passed the act for quieting title to land it had in mind the Married Woman's Act, as well as the twenty-four and thirty-one-year Statutes of Limitation, and passed the statute authorizing the quieting of titles as much for the benefit of married women who could not bring a possessory action by reason of the fact that their husbands' right to possession had attached prior to the married Woman's Act, and there being no exemption in behalf of married women in either the twenty-four or the thirty-one-year Statutes of Limitation, and there being nothing said in the act to quiet title in regard to married women, it must be presumed that the Legislature had in mind the fact that married women in many instances could not bring a suit to recover possession of land, therefore, it was necessary that they have the right to bring a suit quieting the title and showing their interest in the land even though they were not entitled to the possession thereof. (5) The reading of Section 1881 clearly contemplates that the bringing of an action asserting title has the same effect insofar as arresting the Statute of Limitaion is concerned as bringing a possessory action. (6) Belle Powell, by reason of her laches and failure to look after said land or claim any right, title or interest therein, permitting the parties claiming to own said land to make expensive and valuable improvements thereon, is now estopped to come in at this late day and claim said land in its improved condition. And this condition prevailing at the time plaintiff, Belle Powell, made her deed to her co-plaintiff, Bex A. Trimble, he is likewise estopped. Tennent v. Union Life Insurance Co., 112 S.W. 754; Toler v. Edwards, 249 Mo. 152; Shelton v. Horrell, 232 Mo. 358; Rutter v. Carothers, 223 Mo. 631; Powell v. Powell, 267 Mo. 117; Moreman v. Talbot, 55 Mo. 392. (7) Under the facts in this case the doctrine of champerty and maintenance applies with all its vigor and plaintiffs cannot maintain this suit. 6 Cyc. 850; Duke v. Harper, 66 Mo. 57; Bent v. Triest, 86 Mo. 475.

FARIS J. Bond, C. J., Walker, Blair and Williams, JJ., concur; Graves, J., dissents in separate opinion. Woodson, J., not sitting.


In Banc


This is an action to determine interest in a certain parcel of real estate situate in Pemiscot County. Upon the trial below defendants had judgment, and plaintiffs, after the usual motions, appealed.

The facts are few and simple. Plaintiff Belle Powell married one John W. Powell on the 24th day of March, 1870, and ever since has been and was at the time of the bringing of this suit, on the 4th day of May, 1915 a married woman. While under all the disabilities of coverture, plaintiff Belle Powell (hereinafter for brevity, except where otherwise stated, referred to simply as "plaintiff") acquired title to the land in dispute. On the 15th day of September, 1882, plaintiff, together with her husband attempted to convey this land by warranty deed to one Mark T. Leonard. The form of deed used in this attempted conveyance was not the general form of warranty deed in common use at that time in the State of Missouri, but seemingly this instrument followed an Indiana form. No point is made, however, upon any portion of this instrument, except the acknowledgment appended thereto which is alleged to be defective. This acknowledgment constitutes the sole ground and raison d'etre of this action. Omitting venue, signature and seal of the officer taking the same, all of which are conventional and are not attacked, the acknowledgment to this deed reads thus:

"Before me Fred P. Leonard, Notary Public in and for said county, this 15th day of September, 1882, personally appeared the within named Belle Powell and John W. Powell, both being personally known to me and acknowledged the execution of the annexed deed."

A part of the land in controversy was, at the time of the above attempted conveyance thereof, in cultivation and in the possession of the grantors. The grantees in the above instrument of conveyance -- we so denominate it for convenience -- thereupon took possession of this land, and they and their mesne grantees continued in possession, and were in possession...

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