Wells v. Egger
| Decision Date | 04 March 1924 |
| Docket Number | 23629 |
| Citation | 259 S.W. 437,303 Mo. 26 |
| Parties | ELBERT C. WELLS, ALICE M. TUTHILL and JEROME PROBST, Appellants, v. THOMAS EGGER, MICHAEL FISHER and FRED FISHER |
| Court | Missouri Supreme Court |
Appeal from Barton Circuit Court; Hon. Berry G. Thurman Judge.
Reversed and remanded.
E L. Moore for appellants.
(1) Crowl v. Crowl, 195 Mo. 347; Long v. Coal Co., 233 Mo. 740; Spicer v. Spicer, 249 Mo. 595. (2) Even if Egger had been putting on valuable improvements, a married woman would not be bound by estoppel, and even persons in full legal right would have to know of such improvements to be estopped. Powell v. Powell, 267 Mo. 127; Kellogg v. Moore, 271 Mo. 194; Lewis v. Barnes, 272 Mo. 404; Powell v. Bowen, 279 Mo. 290; Jones v. Lumber Co., 223 S.W. 63, 70. (3) Under Sections 669, 680 and 681, R. S. 1879, this acknowledgment was fatally defective, because not showing that she was made acquainted with the contents of the instrument and for other reasons. Burnett v. McCluey, 78 Mo. 688; Krieger v. Crocker, 118 Mo. 531; Evans v. Morris, 234 Mo. 183; Danciger v. Stone, 278 Mo. 25; Powell v. Bowen, 279 Mo. 288; Marshall v. Reddick, 219 S.W. 615; Jones v. Lumber Co., 223 S.W. 69; (4) When a married woman took the legal title to land prior to 1889, two estates were carved out at once; a life estate in the husband, with remainder to the wife or her heirs. The right to possession and to maintain a possessory action vested in the husband, and was not taken away by the Act of 1889. And there being no right of action in the wife or her heirs during the life of the husband, no statute of limitation could run against her or them. Reaume v. Chambers, 22 Mo. 36; Funkhouser v. Langkopf, 26 Mo. 453, 461; Salmons' Ad. v. Davis, 29 Mo. 181; Carr v. Dings, 54 Mo. 95; Dyer v. Brannock, 66 Mo. 422; Keith v. Keith, 80 Mo. 127; Campbell v. Gas Co., 84 Mo. 378; Harris v. Ross, 86 Mo. 102; Dyer v. Wittler, 89 Mo. 86; Bradley v. Railway, 91 Mo. 498; Smith v. Patterson, 95 Mo. 525; Thomas v. Black, 113 Mo. 66; Pim v. St. Louis, 122 Mo. 665; Rumsey v. Otis, 133 Mo. 85; Shumate v. Snyder, 140 Mo. 87; Howell v. Jump, 140 Mo. 456; Miller v. Quick, 158 Mo. 503; Reed v. Lowe, 163 Mo. 535; Hall v. French, 165 Mo. 438; Vanata v. Johnson, 170 Mo. 274; Wilson v. Frost, 186 Mo. 311; Graham v. Ketcham, 192 Mo. 24; DeHatre v. Edmonds, 200 Mo. 279; Smith v. Smith, 201 Mo. 545; Bradley v. Goff, 243 Mo. 95; Waddle v. Frazier, 245 Mo. 404; Armor v. Frey, 253 Mo. 474; Troll v. St. Louis, 257 Mo. 731; Powell v. Powell, 267 Mo. 127; Lewis v. Barnes, 272 Mo. 397, 406; Danciger v. Stone, 278 Mo. 27; Powell v. Bowen, 279 Mo. 293; Case v. Sipes, 280 Mo. 119; Mathis v. Melton, 293 Mo. 141; Nichols v. Hobbs, 197 S.W. 260.
H. W. Timmonds for respondents.
(1) We concede that the deed of Phoebe E. Wells and her husband, dated February 19, 1878, was not properly acknowledged by her and not sufficient to convey the legal title to their grantee, George Group. (2) Under the provisions of the thirty-year Statute of Limitations the plaintiffs' claim to the land involved in this suit is forever barred and their right and title are, ipso facto, vested in the defendant, Thomas Egger. Sec. 1311, R. S. 1919; Fairbanks v. Long, 91 Mo. 636; Collins v. Pease, 146 Mo. 135; Nichols v. Hobbs, 197 S.W. 258; Scannell v. Fountain Co., 161 Mo. 619; De Hatre v. Edmonds, 200 Mo. 279. One is in "lawful possession" within the meaning of this statute when he has not entered as a mere intruder or trespasser, but in good faith, claiming to be the owner. It is manifest that he need not have a perfect title, for in that event he would not need the protection of the statute. Collins v. Pease, 146 Mo. 139. Generally, any writing which purports to convey the title to land by appropriate words of transfer and describes the land, is color of title, though the writing is invalid, actually void, and conveys no title. Dunnington v. Hudson, 217 Mo. 100; Fugate v. Pierce, 49 Mo. 441. The basic principle underlying statutes of limitations is that such statutes are statutes of repose, and the thirty-year Statute of Limitations was intended to be a statute of absolute repose to those who come within the protection of its provisions, as no disabilities, exceptions, or enabling clauses are a part of it. Fairbanks v. Long, 91 Mo. 636; Collins v. Pease, 146 Mo. 139; DeHatre v. Edmonds, 200 Mo. 279. (3) Adverse possession will start the running of the statute against one under disability. Such possession begins with the entry into possession of the land by another than the person under disability or one claiming from such person. Hubbard v. Keen, 247 S.W. 1000; Feris v. Moore, 256 Mo. 131. The twenty-four-year Statute of Limitations bars plaintiffs' right to recovery since the adverse possession of the defendants began in 1878 under the deed to Group and continued more than forty-three years before this suit was commenced. Sec. 1307, R. S. 1919; Hubbard v. Keen, 247 S.W. 1000; DeHatre v. Edmunds, 200 Mo. 274; McKee v. Downing, 224 Mo. 132; King v. Theis, 272 Mo. 422. In 1917 the Legislature amended the twenty-four year statute by cutting out the words and the disability of "or a married woman," and enacted a new statute of limitations as to married women, requiring persons entitled to commerce an action for the recovery of real estate, where the right had accrued ten years or more prior to the taking effect of that law, to commerce such action within three years after the death of the person under a disability, but not after that time. Sec. 1310, R. S. 1919. (4) The ten-year Statute of Limitations bars plaintiffs' right of recovery in this case. The deed of Phoebe E. Wells and husband in 1878 was valid as to the husband and he conveyed his right of possession to Group and his assigns by that deed, but this right of possession was only during coverture, and when Phoebe E. Wells, the wife, died August 13, 1909, the husband's marital rights in this land ceased. This suit was not brought until June 10, 1921 -- more than thirteen years after the death of the wife and plaintiffs' ancestor -- and the defendant Egger was in the adverse possession of the land the entire time. Sec. 1305, R. S. 1919; DeHatre v. Edmonds, 200 Mo. 274; McKee v. Downing, 224 Mo. 131; Hubbard v. Keen, 247 S.W. 1000. (5) To give security to titles to real estate, the Legislature in 1917 enacted a new law (now Sec. 1312, R. S. 1919) to cover cases where the holder or owner of the legal or equitable title or estate conveyed such real estate by deed prior to January 1, 1900, and the spouse failed to join therein, barring such spouse, or her heirs, from recovering any right, title or interest in the land described in such a deed, unless suit was brought within two years after that law went into effect. This law went into effect June 18, 1917, but this suit was not brought until June 9, 1921, nearly four years, so plaintiffs are barred from a recovery in this action under this statute. Sec. 1312, R. S. 1919.
This cause of action is stated in two counts: first, to determine title to a tract of land in Barton County; the other in ejectment for the same land. The answer pleads the ten-year Statute of Limitations, the thirty-year Statute of Limitations, and the twenty-four-year Statute of Limitations.
Other defenses pleaded seem to have been lost sight of, as they are not presented for consideration here.
It is admitted that Phoebe E. Wells is the common source of title; she was married December 20, 1854. She acquired title to the land while a married woman, March 8, 1877.
Phoebe Wells and her husband, Henry B. Wells, conveyed the land to George Group, February 19, 1878. The deed was defectively acknowledged by Phoebe E. Wells and not sufficient to convey her title to the grantee, George Group. Group took possession of the land "in a remote day;" afterward he conveyed the same, and defendant Thomas Egger claims from him through mesne conveyances. The defendants Michael and Fred Fisher are tenants of the defendant Thomas Egger, and for that reason were made parties defendant. At the time suit was brought the Egger family had been in possession of the land, claiming to own it, and paying taxes on it, since June 14, 1886.
Phoebe Wells died August 13, 1909, intestate, leaving the plaintiffs, Elbert Wells and Alice Tuthill, her only children and heirs. Henry B. Wells and Phoebe Wells lived together continuously as husband and wife from 1854 to her death. Henry B. Wells died January 19, 1917. This suit was filed June 10, 1921. The plaintiff Jerome Probst claims a half interest in the land by virtue of a deed from Elbert C. Wells and Alice M. Tuthill.
Thus the plaintiffs claim as the heirs of Phoebe Wells, the original owner. The defendants claim by virtue of the various statutes of limitations, by holding adverse possession under color of title in the deed made in 1878 by Phoebe Wells and her husband, defectively acknowledged by her. The deed was properly acknowledged by Henry B. Wells, the husband. The trial court found and determined the title of the property to be in the defendant Thomas Egger, and decreed that plaintiffs had no right or title in the same.
I. That the deed made by Phoebe Wells, in 1878, did not convey her title, on account of her defective acknowledgment, is admitted by the defendants. They claim only that it shows color of title, so far as she is concerned, and that the several statutes of limitations bar recovery. The trial court did not indicate a theory of the case, but judgment for defendant must have been upon one...
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