Wilson v. Frost

• Decision Date: 15 February 1905
• Citation: 186 Mo. 311,85 S.W. 375
• Parties: WILSON v. FROST et al.
• Court: Missouri Supreme Court

85 S.W. 375

186 Mo. 311

WILSON v. FROST et al.

Supreme Court of Missouri, Division No. 1.

February 15, 1905.

HUSBAND AND WIFE — OWNERSHIP OF LAND — ESTATES OF ENTIRETY — CONSTRUCTION OF INSTRUMENTS.

1. Limitations do not run against the heirs of a married woman and in favor of one claiming, under a deed from the husband, land which belonged to such married woman, until the death of the husband and the consequent cessation of his tenancy by the curtesy.

2. Gen. St. 1865, c. 108, § 12, providing that every interest in real estate granted or devised to two or more persons, other than executors and trustees and husband and wife, shall be a tenancy in common, unless expressly declared in the grant or devise to be in joint tenancy, has no application to an estate of entirety in husband and wife, and such an estate is created by a grant to a husband and wife, which is not expressly declared to be in joint tenancy.

3. A deed reciting a grant to a husband and wife, to have and to hold unto them, their heirs and assigns, forever, neither the granting clause nor the habendum of which suggests the estate conveyed to be of any other character than that to be naturally inferred from the words of conveyance used, creates an estate of entirety in the husband and wife, notwithstanding a clause in the premises specifying that the conveyance to the husband is of one undivided half interest in the land, and to the wife of the other undivided half interest.

Appeal from Circuit Court, Daviess County; A. M. Woodson, Special Judge.

Action by Marion Wilson against Hattie Frost and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Hicklin, Leopard & Hicklin and Wm. M. Williams, for appellants. Peery & Lyons and Gillihan & Kerr, for respondent.

VALLIANT, J.

This is a suit in ejectment for an undivided half of 160 acres of land. Plaintiff claims under two deeds conveying the whole 160 acres to him, one from William Cook and Mary E. Cook, his wife, dated July 26, 1875, the other from William Cook, dated, December 9, 1875, after the death of Mary E. Cook. Defendants are the children and grandchildren of Mary E. Cook, deceased, and claim by inheritance from her. Plaintiff went into possession of the land in the summer of 1875, under the deed from Cook and wife, and remained in possession until November 12, 1901. William Cook died in 1899, and after his death the defendants in this suit sued this plaintiff in ejectment, and recovered judgment for an undivided half, and were put into possession thereof by the sheriff November 12, 1901, immediately after which this plaintiff brought this suit. At the trial of this suit the plaintiff, in the absence of the original deed, read in evidence from a record book in the recorder's office the record copy of the deed of July 25, 1875, from William Cook and Mary E. Cook to himself. On the face of that record it did not appear that there were seals attached to the grantors' signatures, although the deed was acknowledged in due form, and had been on record since October, 1875. The plaintiff's counsel stated that he offered it only as color of title in connection with his claim of adverse possession. The plaintiff relied mainly for his paper title on the deed from William Cook after the death of his wife, dated December 9, 1875. The plaintiff's contention is that the title to the land was in William Cook and Mary E. Cook, his wife, during their joint lives, as an estate of entirety, and that on the death of the wife it became the husband's exclusively. If the plaintiff is right in that contention, then the deed from William Cook to him, after the death of Mary Cook, conveyed the whole title, and he is entitled to recover. The defendants contend that Cook and his wife owned each an undivided half of the land as tenants in common; that on her death her undivided half descended to them, as her heirs at law, subject to William Cook's life estate by curtesy, which life estate ended at his death, in 1899, at which time their right to possession accrued. The title which Cook and his wife had to the land was derived from a deed from Henry G. Deering and wife to them of date November 13, 1865, and was in these words: "This indenture made and entered into this the thirteenth day of November in the year of our Lord, one thousand, eight hundred and sixty-five, between Henry G. Deering and Malinda M. Deering, his wife, of the County of Daviess and State of Missouri of the first part, and William Cook and Mary E. Cook of the county of Daviess and state of Missouri, parties of the second part, that is to say to the said William Cook the one undivided one half interest and the said Mary E. Cook the other one undivided half interest in the following described land, witnesseth: That the said party of the first part for and in consideration of the sum of two thousand eight hundred dollars to them in hand paid by the party of the second part, the receipt of which is hereby acknowledged, have granted, bargained and sold and by these presents, do grant, bargain and sell the following described land situated in the county of Daviess and State of Missouri: The west one half of the southwest quarter of the northwest quarter of section No. five (5); also the north one half of the northwest quarter and the north one half of the northeast quarter of section fourteen (14), all in township No. fifty-nine (59), of range No. twenty-nine (29), containing 180 acres, as per the Government Survey, be the same more or less. To have and to hold the premises hereby conveyed with all the rights, privileges and appurtenances thereto belonging or in any wise appertaining, unto the said William Cook and Mary E. Cook, their heirs and assigns forever; they, the said Henry G. Deering and Malinda M. Deering, his wife, hereby covenanting to and with the said William Cook and Mary E. Cook, their heirs and assigns for themselves, their heirs, executors and administrators to warrant and defend the title to the premises hereby conveyed against the claims of every person whomsoever." It was admitted that defendants were in possession of the undivided half of the land sued for, and had been since November 12, 1901, and that the rental value thereof was $13 a month. The cause was tried by the court, jury waived. The trial resulted in a finding and judgment for the plaintiff for possession, $65 damages, and $13 monthly rents until possession gained; from which judgment the defendants have appealed.

1. Although the plaintiff was in open possession of the land, claiming it as his own, from the summer of 1875 until November, 1901, when he was ousted of an undivided half at the suit of these defendants, yet he thereby acquired no title as by adverse possession, because he held possession under William Cook, who,...