Robinson v. Allison

• Decision Date: 21 December 1905
• Parties: ROBINSON v. ALLISON et al.
• Court: Missouri Supreme Court

91 S.W. 115

192 Mo. 366

ROBINSON v. ALLISON et al.

Supreme Court of Missouri, Division No. 1.

December 21, 1905.

1. LIMITATION OF ACTIONS — RECOVERY OF REAL ESTATE—COMPUTATION OF TIME—PERSONS UNDER DISABILITY.

Rev. St. 1899, § 4262, provides that actions for the recovery of real estate must be commenced within 10 years from the accrual of the cause of action, and section 4265 provides that, if any person entitled to commence any such action be under disability when the cause of action accrues, the time during which such disability shall continue shall not be deemed a portion of the time limited for the commencement of the action, but that such person may bring the action after the time so limited and within three years after removal of disability, provided that no such action shall be commenced by any person under disability after 24 years after the accrual of the cause of action. Held that, where a cause of action accrues to one under disability, the period during which the disability continues, though more than 10 years, does not constitute a bar, but the action may be commenced within three years after the removal of the disability; and, if the disability exists for less than 10 years, the action may be commenced within three years after removal, unless the three years, together with the period of the disability, are less than 10 years, in which event such person is intitled to the unexpired portion of the 10 years.

2. SAME—HEIRS OF PERSON UNDER DISABILITY.

Section 4267 provides that, if any person entitled to commence any action die during the continuance of any disability, his heirs may commence such action after the time limited and within three years after his death, but not after that period. Held, that disabilities cannot be cumulated, and where an infant, having a cause of action, died before his majority, his heir could not commence an action after three years from the death, though the heir was under disability at the time of the death; the heir not being entitled to the provisions of section 4265.

3. INFANTS—DEED—VALIDITY.

A deed of an infant is not void, but only voidable, on his disaffirmance.

4. SAME—TIME FOR DISAFFIRMANCE.

In order for an infant to disaffirm his deed, he must do so within a reasonable time after obtaining his majority.

Appeal from Circuit Court, Benton County; W. W. Graves, Judge.

Suit by Emma Robinson against Henrietta M. Allison and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

T. C. Owen and Henry P. Lay, for appellants. V. V. Morgan, for respondant.

MARSHALL, J.

This is a proceeding, under section 650, Rev. St. 1899, to have declared the interests of the parties in and to the W. ½ of lot 3 in the N. W. ¼ of section 3, township 39, range 22 in Benton county, Mo. The petition charges that the plaintiff is the owner thereof in fee, and that the defendants claim some title or interest adverse to her. The answer of defendant Allison is a general denial, with a special plea of title by limitation. The answer of defendant Benton county is not set out in the abstract of the record, and is alleged to be lost. But the claim of the county appears to be a school fund mortgage on the land. The case was submitted to and determined by the trial court upon the following agreed statement of facts: "It is hereby stipulated and agreed by the parties that the above case shall be submitted to the court upon the following agreed statement of facts, to wit: June 12, 1882, Thomas Kidwell was the owner in fee of the land described in the petition, and a minor under the age of 21 years. On that day he executed a warranty deed purporting to convey said land to J. W. Hallegan for a consideration of $225, and also a bond to said Hallegan, with sureties, requiring him to ratify said deed upon reaching the age of 21 years, and said deed and bond were duly recorded in the office of the recorder of deeds of Benton county, Mo. Hallegan immediately took possession of said land, and was in actual, open, notorious, continuous, and adverse possession thereof until the 5th day of July, 1901, when he conveyed to the defendant Henrietta M. Allison, who has since been and now is in the like possession of said land. While Hallegan was in possession, he executed a school fund mortgage to Benton county, covering that and other land, which is recorded in Book 32, page 355, of the Deed Records of said county, and any part of the principal and interest of the debt secured thereby remaining unpaid is now a lien on said land as between the defendants. Thomas Kidwell died in October, 1884, and before reaching the age of 21 years, leaving as his only heirs his half-brother and sister, John West and Clara West. Clara West, a few months before reaching the age of 18 years, married Marion Robinson, and died in 1893, in her twenty-first year, intestate, and leaving surviving her the said husband and one daughter, this plaintiff, her only child, who is still a minor. John West was born in 1869, and shortly prior to the institution of this action conveyed any interest which he might have in said land to the plaintiff." The circuit court adjudged that the plaintiff is entitled to an undivided one-half of the land, and that the defendant Allison is entitled to the other half, subject to a school fund mortgage to the defendant Benton county. From this decree, the defendants appealed.

Thomas Kidwell is the common source of title. On the 12th of June, 1882, he conveyed the land to one Hallegan and, being a minor at that time, executed to Hallegan a bond, binding himself to ratify the deed upon attaining his majority. The record is silent as to the actual age of Kidwell at the date of the execution of that deed. In October, 1884, and before attaining his majority, Kidwell died, leaving as his heirs his half-brother and sister, John West and Clara West. While yet a minor, Clara married, and died in 1893, in her twenty-first year, intestate, and leaving as her only heir the plaintiff, who is still a minor. Shortly before the institution of this suit John West conveyed his interest to the plaintiff. At the date of Kidwell's death in 1884 John was a minor, aged 15 years, and Clara was a minor, aged 10 years. The defendants and their grantors entered into possession on the 12th of June, 1882, and remained in possession until the institution of this suit, covering a period of 19 years. The crucial question in the case, therefore, is whether the defendants have acquired title by limitation. A deed executed by a minor is not void, but voidable only, and subject to be defeated by the minor or his heirs by timely disaffirmance. Shipley v. Bunn, 125 Mo. 445, 28 S. W. 754. Actions for the recovery of real estate must be commenced, under the statutes of this state, within 10 years from the time the right of action accrues. Section 4262, Rev. St. 1899. The statutes, however, prescribe the rights of persons who were laboring under disabilities at the time the right of action accrued or descended. Section 4265 is as follows: "If any person entitled to commence any action in this article specified or to make any entry be, at the time such right or title shall first desend or accrue, either within the age of 21 years, or insane, or imprisoned on any criminal charge, or in execution upon some conviction of a criminal offense for any time less than life, or a married woman, the time during which such disability shall continue, shall not be deemed a portion of the time in this article limited for the commencement of such action or the making of such entry; but such persons may bring such action or make such entry after the time so limited, and within three years after such disability is removed: Provided, that no such action shall be commenced, had or maintained or entry made by any person laboring under the disabilities specified in this section, after twenty-four years after the cause of action or right of entry shall have accrued."

The true meaning of this section has been determined by this court. In Gray v. Yates, 67 Mo., loc. cit. 602, it was said: "The first section of the chapter provides that all actions for the recovery of lands, or the possession thereof, shall be brought within 10 years after the right of action or of entry shall have accrued. The fourth section provides that if any person entitled to commence an action or make an entry be, at the time such right accrues, within the age of 21 years, or insane, or imprisoned, or a married woman, `the time during which such disability shall continue shall not be deemed any portion of the time in this chapter limited for the commencement of such action or the making of such entry; but such persons may bring such action or make such entry after the time so limited, and within three years after such disability is removed: Provided, that no such action shall be commenced, had or maintained, or entry made, by any person laboring under the disabilities specified in this section after twenty-four years after the cause of action or right of entry shall have accrued.' The plaintiff contends that where a right of action accrues to an infant, and the period during which the minority thereafter continues is less than 10 years, such time is not to be counted, and the plaintiff has 10 years after attaining his majority in which to bring the suit. The fourth section refers to the first, and must be construed in connection with it, and, while the language employed is not as full and precise as it should be perhaps, we think its true meaning may be fairly declared to be that, when a right of action or of entry accrues to any person laboring under any of the disabilities therein enumerated, the period during which such disability continues, though more than 10 years, shall not constitute a bar to his or her right of action or entry, but he or she may, within three years after the removal of such disability, and within 24 years after such right of action or entry...