Powell v. Powell

• Citation: 183 S.W. 625,267 Mo. 117
• Parties: JAMES POWELL, Appellant, v. J. E. POWELL
• Decision Date: 29 February 1916
• Court: Missouri Supreme Court

183 S.W. 625

267 Mo. 117

JAMES POWELL, Appellant, v. J. E. POWELL

Supreme Court of Missouri, First Division

February 29, 1916

Appeal from Dallas Circuit Court. -- Hon. C. H. Skinker, Judge.

Reversed and remanded (with directions).

O. H Scott and L. C. Mayfield for appellant.

(1) The deed from Angeline Patterson to defendant and wife was made to partition her father's estate and the husband took no title thereby. Propes v. Propes, 171 Mo. 407. She took by descent from her father. Palmer v Alexander, 162 Mo. 127. Her directions to have the deed made to both her husband and herself did not affect the title or estate. Propes v. Propes, supra; Snyder v Elliott, 171 Mo. 362; Whitsett v. Wamack, 159 Mo. 14. (2) Although the defendant may have paid $ 30 to equalize the shares in the partition of the land (which we do not admit), this would give him an interest at most as tenant in common with his wife. There would be no survivorship, and at her death, he would hold as a tenant in common with his children and by curtesy. Harrison v. McReynolds, 183 Mo. 533. And if only the wife's interest in her father's estate was conveyed, as was the fact, any payment made by the husband inured to the wife's benefit. Hickman v. Link, 97 Mo. 493; Manning v. Coal Co., 181 Mo. 359. Improving the wife's land and paying the taxes thereon does not give the husband any title or interest therein. Curd v. Brown, 148 Mo. 83; Woodard v. Woodard, 148 Mo. 241; Boynton v. Miller, 144 Mo. 687. (3) Neither the Statute of Limitations nor estoppel apply to this case. The deed under which the defendant took possession was made before the amendment to the Married Woman's Act of 1889 and the husband was entitled to the exclusive possession of the wife's land. Snyder v. Elliott, 171 Mo. 362; Manning v. Coal Co., 181 Mo. 359; Arnold v. Willis, 128 Mo. 149; Flesh v. Lindsey, 115 Mo. 1. The husband's possession was the wife's possession; and she could bring no action againt him, absent fraud or deception. There is no charge of fraud, and therefore no "right of action" accrued to the wife during her lifetime. At the wife's death the husband became tenant by curtesy; and was and is entitled to the exclusive possession of the land during his lifetime, and no action for possession can be brought by the heir, unless the husband should claim by hostile or adverse possession to the heir. This is not pleaded or proven in this case. Dyer v. Wittler, 14 Mo.App. 52; Miller v. Bledsoe, 61 Mo. 96; Manning v. Coal Co., 181 Mo. 359; Martin v. Castle, 193 Mo. 183.

John S. Haymes and J. N. Miller for respondent.

(1) Whether the deeds offered in evidence were executed to effect a voluntary partition of the land is to be determined by the testimony. (2) The evidence discloses a transaction amounting to more than the ordinary voluntary partition of land by co-tenants. At that time, husband and wife could deal with each other in equity, at least with respect to their properties. Tennison v. Tennison, 46 Mo. 77; Tillman v. Tillman, 50 Mo. 40; Chapman v. McIlwrath, 77 Mo. 46; Halferty v. Scearce, 135 Mo. 439; McBreen v. McBreen, 154 Mo. 330; Bower v. Daniel, 198 Mo. 320. The contract was made May 2, 1889, before the present married woman's law took effect. But a safer course still was followed in this case. The whole of the land was conveyed to a third party, who conveyed to defendant and his wife. Gibb v. Rose, 40 Md. 387. So the statute in reference to the husband and wife joining in the conveyance of the wife's land, was complied with. R. S. 1879, sec. 669. Both defendant and his wife intended that the deeds should convey title to defendant; and the intention controls. Perry on Trusts (2 Ed.), secs. 139, 140; Morris v. Clare, 132 Mo. 236; Higbee v. Higbee, 123 Mo. 287. A contract made between husband and wife in the friendly partitioning of the wife's, and other land, by which they are to become tenants by the entirety, will be enforced against the wife's heirs. Whittaker v. Lewis, 264 Mo. 208. In the pending case the contract was fully executed by the parties themselves. (3) If a cause of action ever existed, the Statute of Limitations is a complete bar thereto. All the facts were known to defendant's wife, and his deed was of record, giving constructive notice (Hudson v. Cahoon, 193 Mo. 559), and if defendant occupied such relation to the land that he could have conveyed it to an "innocent purchaser," as plaintiff thinks he could, or otherwise wrongfully held title to it, although the wife of defendant, a cause of action arose in the wife's favor in 1886. Reed v. Pointer, 145 Mo. 341. The wife died in 1888, and there is no tacking of disabilities. Gray v. Yates, 67 Mo. 601; Robinson v. Allison, 192 Mo. 566. Plaintiff was barred in 1896, ten years after a cause of action accrued to the mother. R. S. 1909, secs. 1881, 1883; Reed v. Painter, supra; DeHatre v. Edmunds, 200 Mo. 246. This action was commenced July 13, 1912, and at that time any action accruing prior to July 13, 1888, was also barred by the twenty-four-year Statute of Limitations. DeHatre v. Edmunds, 200 Mo. 274. Again the statute under which the present action was brought, was enacted in 1897, and a cause of action accrued under it when it took effect. Garrison v. Fugate, 165 Mo. 40. Actions under this statute are barred in ten years. Haarstick v. Gabriel, 200 Mo. 244. But as plaintiff was a minor till May 30, 1905, and had three years free from disability in which to sue, the action was barred May 31, 1908. Plaintiff may have had no right of entry, but he had a right of action. Even if defendant did have a curtesy interest in the land, under the plain provisions of the statute (R. S. 1909, sec. 2535) under which the action was brought, "pending the life estate, the opportunity existed without any impediment whatever, of bringing suit." Hoester v. Sammelmann, 101 Mo. 624.

GRAVES P. J. Woodson, J., absent.

OPINION

GRAVES, P. J.

Action by a son against the father to ascertain and determine title to eighty acres of land in Dallas County.

Counsel for appellant have made a very fair and a very succinct statement of the facts as follows:

"Thomas R. Patterson died on the 28th day of March, 1864, owning the real estate described in plaintiff's petition, with other lands. There survived him his widow, Angeline Patterson, and children, J. F. Patterson, T. B. Patterson, Sarah E. Patterson, Nancy A. Patterson and L. C. Patterson.

"L. C. Patterson died unmarried and without issue December 11, 1884, and the widow Angeline Patterson, died April 29, 1889.

"On the 18th day of February, 1886, all the heirs of Thomas R. Patterson, for the purpose of partitioning the land, deeded it all to their mother, who at once executed deeds to each heir.

"Nancy A. Patterson had married the defendant, J. E. Powell, and the deed from her mother was made to her and her husband.

"Nancy E. Powell died September 1, 1888; she left surviving, her husband, the defendant, and two children, the plaintiff and Ethel Powell, who died about a year afterward.

"The family were residing on the land at Nancy A. Powell's death and the defendant has ever since resided thereon.

"It is conclusively shown that the deed to defendant and his wife was made at the time the several deeds were made in partition of the Thomas R. Patterson land; and if defendant secured any title other than through the marital relation, it was purchased at the time of the execution of the deed. He says he paid $ 30 to Thomas R. Patterson, but it is not clearly shown why this was paid to Patterson. The land conveyed, defendant admits, was his wife's interest in her father's estate. It was worth about $ 350 or $ 400.

"Defendant also claims title because his wife desired that he be protected in the possession in the event of her death; as he refused to go upon the land unless it was so arranged.

"Defendant also pleads the Statute of Limitations and estoppel.

"The judgment of the court found for defendant, and adjudged him vested with title in fee in the land."

Further details of the evidence can, if necessary, be stated in the opinion. Defendant claims the estate as the survivor under this deed by the entirety.

I. It is clear that the mother and widow, Angeline Patterson, was selected by the children and heirs as a mere conduit in their partitioning of the estate of the father. The fact of the deeds being executed contemporaneously makes this clear, as does the evidence. It is also clear that the land conveyed to defendant and his wife was the portion of her father's estate coming to her and no more. The fact that the heirs in making the partition selected a conduit rather than deeding to themselves does not differentiate the case. Both methods would reach but one result, i. e., a partition of the land.

For the time being, leaving out of consideration the alleged payment of $ 30 by defendant at the execution of the deeds, the defendant's status as to this land has been firmly fixed ever since the very lucid and learned opinion of Brace, P J., in Whitsett v. Wamack, 159 Mo. 14, 59 S.W. 961. This case has been frequently reaffirmed since. In the Whitsett case it was held that the making of a deed to both husband and wife in the voluntary partition of lands in which the wife was a coparcener, conveyed no title to the husband. Such a deed it was held conveyed no title at all, but was a mere instrument of settling between the coparceners their respective possessions of land to which they already had the title. The title came to them by inheritance, and that title they always had. So, also, it is said that our statutory proceeding of partition conveys no title, when the land is divided and allotted to the coparceners. Such proceeding only adjusts the different rights of ...