128 Mo. 145 | Mo. | 1895
Ejectment for an undivided one fourth interest in the south half of lots 11 and 12 in block 4, in the original city of Brookfield, Missouri. The petition is in the usual form, and the answer a general denial.
Both parties claim title under one John W. Ricker, who, on the twenty-eighth day of April, 1868, leased in writing said premises to his mother, Sarah Ricker, for and during the term of her natural life. John W. died June 18, 1870, childless and unmarried, leaving as his only legal heirs his mother, Sarah Ricker, his brother, Wilder D., his sister, Mary, who afterward married one Lansing, and Martha Arnold, the wife of the plaintiff. The lease from John W. Ricker to his mother, although recorded in Linn county, was not acknowledged.
On December 17, 1873, Mrs. Ricker, by general warranty deed of that date, sold and conveyed the property, as the “sole and only heir at law of John W. Ricker, deceased,” to Mrs. Mary J. Spivey. Her son, Wilder D., and daughter, Mary Lansing, joined in said
The case was tried before the court without a jury, and it is evident from the declarations of law given in behalf of plaintiff and those asked by defendants, which were refused, that the court tried the case on the theory that the plaintiff, in right of his wife, was entitled to the possession of the premises sued for, and that as to him the action was not barred by the statute of limitations. The court rendered judgment for plaintiff, hence this appeal.
Plaintiff’s right to the possession of the interest of his wife in the lots accrued at the death of her mother, Mrs. Ricker, which terminated the lease from her son, John W., to her. As to when this occurred the evidence was very unsatisfactory, but some time, it seems, about the year 1884. When it did transpire, plaintiff, by virtue of his marital rights under the statute then in force, became entitled to the possession of the lots, his wife having the title in fee simple, and not as separate property, and he had the right to sue therefor in his own name. Mueller v. Kaessmann, 84 Mo. 318, and authorities cited; Bledsoe v. Simms, 53 Mo. 305; Wilson v. Garaghty, 70 Mo. 517; Flesh v. Lindsay, 115 Mo. 1.
By section 6869, Revised Statutes, 1889, it is provided that all real estate and personal property belonging to any married woman, together with all increase and profits thereof, shall be rnd remain her separate
The married woman’s act as it now stands, in so far as the marital rights of the husband to the possession of land belonging to the wife are concerned, materially changed his common law rights, and, in legal contemplation, as completely deprived him of all right to the possession or control of the increase and profits, as if it belonged to some other person.
But the fact that the right of plaintiff’s wife to sue in her own name for her separate property was conferred upon her by the Eevised Statutes of 1889, did not deprive him of a right already vested, that is, the right to the possession of the lots, from and after the death of Mrs. Eieker, at which time the right accrued. Leete v. Bank, 115 Mo. 184.
Two questions then arise for consideration: First, did the statute of limitations begin to run against the husband from the time of the death of Mrs. Eieker, at which time he became entitled to the possession of his wife’s interest in the lots? Second, if so, was the action barred at the time of the commencement of this suit, January 27, 1893?
Upon these questions, defendants asked and the court refused to declare the law to be as follows:
“2. The plaintiff seeks to recover in this case under the alleged title in his wife claimed to have been inherited from her deceased brother, John W. Eieker. If a right of action has existed in favor of plaintiff for the period of ten years or more, next before the commencement of this action, and said property, during all*151 that time, has been in the actual and exclusive possession of the defendant, Jennie "Willis, and Mrs. Mary J. Spivey, from and under whom said defendant claims, who, respectively, claimed said property as their own absolutely, then the right of action, if any existed in said plaintiff, is barred by the statute of limitations and the finding and judgment should be for the defendant.”
While, under the Missouri statute, as it was at the time of Mrs. Ricker’s death, plaintiff’s interest in the lots of his wife was exempt from attachment or levy of execution for his sole debts, and no conveyance made by him during coverture of the rents, issues and products, or of any interest in such real estate, would have been valid, unless the same was by deed executed by the wife jointly with him, and acknowledged by her in the manner then provided by law in the case of the conveyance by husband and wife of the real estate of the wife, except for necessaries for the family, and for debts for labor or materials furnished upon, or cultivation or improvement of, such real estate, the law seems to be that, as against him, the statute of limitations began to run in favor of defendants and Mrs. Spivey, under whom they claim, at the death of Mrs. Ricker, which event terminated the lease, and entitled plaintiff to the possession. Peck v. Lockridge, 97 Mo. 549; Kibbie v. Williams, 58 Ill. 30; Schouler on Husband and Wife, sec. 168; Lessee of Thompson’s Heirs v. Green, 4 Ohio St. 216; Weisinger v. Murphy, 2 Head (Tenn.), 674; Shortall v. Hinckley, 31 Ill. 219.
Where the husband sues in right of his wife, as in the case at bar, he can not avail himself of her disability. 2 Wood on Limitations [2 Ed.], sec. 240; McDowell v. Potter, 8 Pa. St. 189. But the wife’s right of entry will be postponed until the termination of the coverture by death of the husband or coverture. Lessee of Thompson’s Heirs v. Green, supra.
There was no evidence upon which to predicate this declaration, and it, as well also as all others asked by defendants, was properly refused. Judgment affirmed.
