Vanata v. Johnson

• Decision Date: 26 November 1902
• Citation: 170 Mo. 269,70 S.W. 687
• Parties: VANATA v. JOHNSON.
• Court: Missouri Supreme Court

70 S.W. 687

170 Mo. 269

VANATA v. JOHNSON.

Supreme Court of Missouri, Division No. 1.

November 26, 1902.

HUSBAND AND WIFE—WIFE'S REALTY—SUIT FOR POSSESSION—LIMITATIONS.

1. The right of a husband to the possession of his wife's real estate prior to act of 1889 (Rev. St. 1899, § 4340), giving her a right to sue for the possession of her realty, etc., was a right arising from the marital relation, and being a vested right, could not be taken away by the married woman's act.

2. The husband's right of possession was one against which limitations ran.

3. Where land descended to a married woman prior to the act of 1889 (Rev. St. 1899, § 4340), giving her the right to sue in her own name for her realty, etc., the husband's right being vested, and the statute prospective, she could not sue a third person for possession during the husband's life.

Appeal from circuit court, Pettis county; Geo. F. Longan, Judge.

Action by Louisa A. Vanata against Thomas C. Johnson. From a judgment for plaintiff, defendant appeals. Reversed.

John Cashman, for appellant. Bente & Wilson and Ross & Bohling, for respondent.

MARSHALL, J.

Ejectment to recover an undivided one-sixth interest in 93 acres in Pettis county. The plaintiff recovered judgment below for an undivided one-eighth interest, with damages for detention, and the defendant appealed. The petition is in the usual form. The answer is a general denial, coupled with special pleas,—First, that the plaintiff is not a proper party, and has no right to bring this action; second, a plea of the statute of limitations; third, title, by mesne conveyances, from the plaintiff and her husband.

The facts shown, briefly stated, are these: David Folkerth is the common source of title. He died in 1866, seised and possessed of the land, intestate, and without issue, leaving as his heirs his father, Christopher, his mother, Mary, his brother, Harvey, and his sister Louisa, the plaintiff. The father went into possession of the land immediately thereafter. On November 23, 1867, the mother died intestate. On the 18th of April, 1868, the plaintiff and her husband conveyed all her interest in the land to her brother, Harvey, for a consideration of $500, by a quitclaim deed, properly executed and recorded. On October 28, 1868, the father died intestate, and the brother, Harvey, went into possession of the land. On March 6, 1873, the plaintiff and her husband executed and delivered to the brother, Harvey, a quitclaim deed, which, under certain whereases, recited the execution by them to the brother of the prior deed of April 18, 1868; the fact that David Folkerth, the common source of title, was at the date of the prior quitclaim deed dead, and that he died intestate, and without heirs of his body; the fact that the plaintiff, Louisa, and the said Harvey were at the date of the second quitclaim deed, dated March 6, 1873, the only legal heirs of David Folkerth; the statement that these facts were omitted from the first quitclaim deed (it could not have been stated in the first quitclaim deed that Louisa and Harvey were the only legal heirs of David, for it was not then true, their father being alive at that time, and having as much interest in the property as they had), and then the second quitclaim deed recites: "Therefore, for the correction and perfection of said conveyance of said Louisa Vanata and Gilbert Vanata, her husband, for the aforesaid purpose, and for the consideration of one dollar," they quitclaimed their right to the property to Harvey. This deed contains this clause immediately following the habendum: "The said Louisa Vanata and Gilbert Vanata hereby ratifying and confirming their aforesaid and first-mentioned deed of conveyance in general and in particular." The brother, Harvey, was then in possession of the land, claiming to own the whole of it. Thereafter Harvey sold the land to J. C. Dillon, and he afterwards sold it to the defendant, who has held the possession of it ever since, claiming it adversely to all the world, has improved it very materially, paid taxes upon it, built houses and barns and stables on it. The plaintiff, Louisa, was married to her present husband, Gilbert Vanata, in 1849, had a child born alive in 1850, and has other children, and her husband is still living. She has lived in the neighborhood of the land in question all these years, and after she made the two quitclaim deeds referred to she never asserted any claim to any part of the land until five or six years before this suit was brought. She now sues alone, and claims to own an undivided one-eighth interest in the land. She bases her claim on this: The land belonged to her brother David. When he died, in 1866, intestate, and without issue, he left as his heirs his father, his mother, his brother, Harvey, and his sister, Louisa, the plaintiff, who each took a one-fourth...