Valle v. Obenhause

• Decision Date: 31 January 1876
• Citation: 62 Mo. 81
• Parties: ALEXANDER VALLE, Plaintiff in Error, v. HENRY OBENHAUSE AND PELAGIE BERTHOLD, Defendants in Error.
• Court: Missouri Supreme Court

62 Mo. 81

ALEXANDER VALLE, Plaintiff in Error,

v.HENRY OBENHAUSE AND PELAGIE BERTHOLD, Defendants in Error.

Supreme Court of Missouri.

January Term, 1876.

Error to St. Louis Circuit Court.

Evans Casselberry, for Plaintiff in Error.

During the joint lives of the husband and wife, the right of possession was in him alone; and during that period the wife has only a reversionary interest; and where he has the curtesy initiate by the birth of a child, his interest may be conveyed, or assigned, or sold under execution. And the statute of limitations does not begin to run against the wife till his death. (See Gregg vs. Tesson, 1 Black, 154; Warrance vs. Alexander, 17 Mo., 228; Bryan vs. Wear & Hickman, 4 Mo., 106; Beal vs. Harmon, 38 Mo., 435; Reaume vs. Chambers, 22 Mo., 36; Junction Railroad Co. vs. Harris, 9 Ind., 184; Butterfield vs. Beall, 3 Ind., 203; Shallenberger vs. Ashworth, 25 Penn. St., 152; McClain vs. Gregg, 2 A. K. Marsh., 454; Schermerhorn vs. Miller, 2 Cow., 439; Chancey vs. Strong, 2 Root, 369; Clancy Mar. Rights, 169; Co. Lit. 30 a.; Cord Mar. Rights, § 1041; 2 Blackst. Comm., side p. 128; Coke Lit., title “Courtesie,” ch. 4, § 35; Wicks vs. Clarke, 8 Paige [N. Y.], 172; Canby's Lessee vs. Porter, 12 Ohio, 80; Gardner vs. Hooper, 3 Gray [Mass.], 398; Burd vs. Dansdale, 2 Binn., 80; Van Duzer vs. Van Duzer, 6 Paige, Ch. 366; Littlefield vs. Cudworth, 15 Pick., 23; Roberts vs. Whiting, 16 Mass., 186; Mattocks vs. Stearns, 9 Vt., 326; Lancaster Co. Bank vs. Stanffer, 10 Penn. St., 398; Day vs. Cochran, 24 Miss., 261, 275; Foster vs. Marshall, 2 Foster [N. H.], 491; Meegan vs. Boyle, 19 How., 130; Reume vs. Chambers, 22 Mo., 36; Tyler Eject., 169; Billon vs. Walsh, 46 Mo., 492; Salmons vs. Davis, 29 Mo., 176; Miller vs. Miller, Meigs Rep., 486-488; Reeves' Dom. Rel., marg. p. 29, or top p. 90, 3d ed.; Coke Lit., vol. 2, 246 a, § 403; 2 Kent, marg. p. 130.

J. F. Lee, Jr., for Defendant in Error.

At the time of the entry of Berthold in 1818, Mrs. Pigeon and her husband were jointly seized in Mrs. Pigeon's right, and the entry of Berthold operated as a disseizin, not of Pigeon only, but of his wife also; that immediately upon that entry a right of entry and cause of action accrued to both Pigeon and wife, and as those under whom Mrs. Berthold claimed have held open, notorious and adverse possession ever since, Mrs. Pigeon's grantee is barred by the 4th section of the act of February, 2d, 1847. (Sess. Acts 1847, p. 294.) This act is still in force (Wagn. Stat., 916, § 4), and applies to all cases, no matter when the cause of action or right of entry accrued. (Billion vs. Walsh, 46 Mo., 492; Melvin vs. Locks & Canal Co., 16 Pick., 137; Kittridge vs. Canal &c., 17 Pick., 246-255; 2 Kent Com., s. p. 130; 2 Cruise, 380; 16 Pick., 161.)NAPTON, Judge, delivered the opinion of the court.

This is an action of ejectment to recover an undivided sixth of an outlot or common field lot in Carondelet, confirmed by the act of 29th of April, 1816, to Delor de Neget's representatives.

The plaintiff's interest is derived from Angelique Pigeon who was a daughter of Delor de Neget. Angelique was married to Hyacynth Pigeon in the spring of 1815, and had several children, the oldest of whom was probably born within the first year of their marriage. Hyacynth Pigeon died just before the commencement of this suit, over a hundred years old, and Angelique survived him.

The confirmation to Delor de Neget's representatives was in April, 1816, upon which a patent issued in 1872.

In 1824, and perhaps earlier, the defendants took possession of the land in controversy, and have held possession ever since. How that possession originated is not material; but that such possession was adverse and continued nearly 50 years before suit, is conceded.

The defendants introduced some evidence to show a confirmation under the act of 1812, and in regard to this evidence, various points arose; but as this court has decided, in Langlois vs. Crawford (59 Mo., 456), that a confirmation under the Act of 1816, is equivalent to a patent, it is useless to state these points.

The only question in the case arises on the instruction given for defendants, which is, that if the jury believe from the evidence that Pelagie Berthold, by her tenants, has been constantly in possession of the land described in the answer, for the period of twenty-four years, she the said Pelagie claiming to be the owner of said land, they must find for the defendants.

This presents the only important question in the case, and being a new one in regard to the proper construction of our statute of limitations, it has been carefully considered. The fourth section of the statute of limitations of February 2d, 1847, gives to minors, prisoners and married women three years after these disabilities are removed, and does not count the period of disability as any part of the ten years, which is the limit to persons laboring under no disability. It then provides that after twenty-four years after the cause of action or right of entry shall have accrued there is a total bar. And the question is, when does a cause of action or right of entry accrue to a married woman, to whom a title descends or accrues, on account of a disseizin or adverse possession during the lives of both husband and wife.

It is insisted on the one hand, that the wife has a mere reversion by reason of the tenancy by the curtesy of the husband, or by reason of his marital right to the possession, during her life, and therefore her right of action never accrues till the death of her husband; and it is clear that, if a wife has a mere reversion, the statute does not bar her, until her reversion vests by the death of her husband, since in such cases her right of action only commences on the termination of the particular estate.

Where a particular estate has been created by the husband, whether with or without the consent of the wife, the wife or her heirs cannot sue until its determination. But where no such estate has been created, the question is whether the husband's marital right or his interest as tenant by the curtesy initiate, so completely divests her of all right of entry, as to prevent the operation of the statute, until the husband's death.

It is obvious that, if the statute is so construed, it is a mere brutum fulmen. It results in the conclusion that a married woman cannot have a right of action or entry, and if not, it was useless to provide for a disability which cannot occur. The disability was an imaginary one, not a real one.

But all of our statutes from 1825 down to the present time, clearly imply that a right of action may exist in a married woman. The husband is understood to be jointly seized of his wife's estate, and during the existence of the coverture he is not tenant by the curtesy, but only seized by right of his wife, and if there be a disseizin, it is of the joint estate, and they must jointly bring an action to recover the possession. Under this view of the title of husband and wife in lands of the wife, the statute of limitations will begin to run from the date of the disseizin against both.

Mr. Clancy, in his work on this subject, states very clearly the interest which a husband has in the inheritance of his wife. “He is not solely seized, but jointly with her. The interest which the husband acquires by marriage, in the estate of inheritance of his wife, is most correctly stated in the technical phraseology of the common law pleaders, to-wit: ‘that husband and wife are jointly seized in right of the wife.’ If the husband pleads that he alone is seized in his demesne as a freehold, or as of fee, in right of his wife, it will be bad on special demurrer.” And to support this, the author cited 1 William Saunders, 253; Douglas, 329, and 2 Wm. Saunders, 285.

The authorities are the same referred to by the Supreme Court of Massachusetts in the case of Melvin vs. Proprietors of Locks and Canals, (16 Pick., 167) in which this question is carefully examined. In that case the court say that “Melvin and his wife were jointly seized and disseized, and either of them or both might enter on the disseizor. That she was sub potestate viri does not prevent the right of entry from accruing to her; otherwise no right of entry could descend or accrue to a feme covert, and the saving clauses in the several statutes of limitation in favor of femes covert, would be useless and senseless.”

The same conclusion is reached by the Supreme Court of Tennessee in Guion vs. Anderson, (8 Humph., 324), and by the Supreme Court of Maine, in Mellus vs. Snowman, (21 Me., 205.)

In Foster vs. Marshall, (22 N. H., 491), and in Lessee of Thompson's Heirs vs. Green, (4 Ohio, 221), the conclusion was exactly opposite to the conclusion of the Massachusetts court and of the court in Tennessee. And the reasoning of the courts last named is based on the hypothesis, that a wife has only a reversion in an estate which accrues to her during coverture; that the husband has a life estate by right of the marriage, or an estate for his own life, if he has children, and consequently her estate is a mere reversion, and any ouster or disseizin only affects the husband's right of possession, and her right of action never accrues till the death of her husband.

It is conceded in the New Hampshire case, that where the husband has acquired no estate by curtesy and is merely seized jure mariti the decision in the case of Melvin vs. Canal Prop. is right. But it is difficult to see any distinction between the husband's right after issue born and his right jure mariti. In either case he may create a particular estate, which would prevent the wife from suing until its determination.

Mr. Clancy observes that “although the husband is said to be jointly seized with his wife, and not solely, in her right, it is not to be inferred that he is incapable of creating an estate of freehold in her inheritance, without her being a party to the conveyance. For instance, he...