Bradley v. Missouri Pacific Railway Co.
91 Mo. 493
Mo.
1886
Check Treatment
Black, J.

This is an action of ejectment. The land sued for is used and occupied by the defendant as a right of way, and for side tracks, and depot purposes, at Smithton station, in Pettis county. The eighty acres, of which the land in question is a part, was patented to Lucy A. Price. In 1853, her husband, Argillon Price, conveyed the same to Edwards, who conveyed the same to Combs, in 1857, and the latter conveyed the land in question to the Pacific Railroad Company, in 1860, and by virtue of various deeds, the defendant has acquired the title of that company. Edwards and Combs had continuous possession of the eighty acres under their deeds from 1853 to 1860. At the latter date the Pacific Railroad took possession of the land in question, and it and those claiming under it,- have ever since used and possessed the property for the purposes before stated. Argillon Price died in April, 1875; Lucy A., his widow, died in April, 1877. The plaintiffs are their heirs, and this suit was began in December, 1881.

1. The ground of this controversy lies in the fact that the deed to Edwards purports to be the deed of Argillon Price, only. The name of Lucy A. Price does *498not appear in the body of it, nor is there anything in the body of the deed to show that he was a married man. It concludes, “In testimony whereof I hare hereunto set my hand and seal,” etc. The deed, however, is signed by her and her husband, and .acknowledged by her on the twenty-second of July, 1853, and by him on the fourteenth of September, 1853. The wife, as will be seen, owned the property in her own right, and the fact that she signed her name to the deed, and acknowledged it before a proper officer, does not make it her grant. The party in whom the title is vested must use appropriate' words to convey the estate. Signing, sealing, and acknowledging a deed by the wife, in which her husband is the only grantor, will not convey her estate. Whitely v. Stewart, 63 Mo. 360; Agricultural Bank v. Rice, 4 How. 225; City of Cincinnati v. Newel, 7 Ohio St. 37. Whether it would be sufficient to release her dower in her husband’s estate, we do not determine.

2. This deed was made prior to the passage of the statute which now appears in the Revised Statutes of 1879, as section 3295, and the effect of the deed must, therefore, be determined without regard to that statute. Mr. Price was a tenant by the curtesy, and though the deed was ineffectual to convey the estate of his wife, still it operated as a conveyance of his life estate. Reaume v. Chambers, 22 Mo. 36; Beal v. Harmon, 38 Mo. 435; Allen v. Ransom, 44 Mo. 266. Although the defendant and those under whom it claimed, have had actual possession since 1853, a period of nearly twenty-eight years, still that possession commenced with the date of the deed of Mr. Price, which, as we have seen, conveyed his life estate. During his life, Mrs. Price coiild not have, maintained an action for the possession of the property. Reaume v. Chambers, 22 Mo. 36; Miller v. Bledsoe, 61 Mo. 96; Roberts v. Nelson, 87 Mo. 229. No cause of action accrued to her until her husband’s death, and until that event the statute of limitations did not commence to run *499against her or her heirs. Dyer v. Brannock, 66 Mo. 391; Dyer v. Wittler, 89 Mo. 81. He died in 1875, and the statute commenced to run at that time, but the period of ten years did not elapse between that date and the commencement of this suit, so that it is clear that the statute of limitations constitutes no defence to this action.

3. The further point is made that, inasmuch as the Pacific Railroad Company acquired the right to construct its road on the land, and haying done so, ejectment will not lie, and the plaintiff must resort to some other proceeding to secure compensation for the land' thus used for railroad purposes. In Kanaga v. Railroad, 76 Mo. 207, the land was the general property of the wife. It was there held that if the husband had acted in a manner to estop him from asserting his right to the possession of the land upon which the road had been built, then she was also estopped. But that case is not an authority here (1) because the suit was prosecuted during the life of the husband, and what right the wife or her heirs might have after the death of the husband was not before the court and not considered; (2) because that case, in so far as it holds the wife estopped by the acts in pais of the husband, is overruled by Mueller v. Kaessman, 84 Mo. 318. In this respect the Kanaga case was ruled to be in conflict with the statute before mentioned, and by which the rights of the wife there were to be determined.

4. Where the owner of land, it has been held, does not insist upon pre-payment of the damages, or other considerations for the right of way, but, by his acquiescence, or license, induces or permits the company to take possession and construct the road, he cannot maintain ejectment thereafter for the land, because of a failure to pay the damages or other considerations. Provolt v. Railroad, 57 Mo. 256; Baker v. Railroad, 57 Mo. 265. But, clearly, those cases are not in point here. *500It was the owner who permitted , or induced the company to construct its road, in advance of payment, who was denied right to recover in ejectment. Here Mrs. Price had no right or power to object. She could assert no rights, as against the company, until the expiration of her husband’s life estate. In Walker v. Railroad, 57 Mo. 275, it was held that if the company proceed to build the road upon land to which it had not acquired the requisite title, by condemnation or by a conveyance from the owner, or by permission from him, it would be liable to be ousted by ejectment. Where the company enters without right, mere inaction on the part of the owner, it was said, could not be tortured into an acquiescence or license for the company to proceed, though he was informed that the company had entered for the purpose of constructing its road. So an action of ejectment will lie against a city for land wrongfully taken by it and converted into a street and improved and used as such. Armstrong v. The City of St Louis, 69 Mo. 309. In Railroad v. Smith, 78 Ill. 96, the owner of a life estate had been notified of the appointment of commissioners to assess damages, but the notice was not sufficient as to the remaindermen, and it was held that they might, at the expiration of the life estate, and after demand made for the premises, recover in ejectment.

We are cited by appellant to Austin v. Rutland. Railroad Company, 45 Vt. 240. That was an action of ejectment by remaindermen to recover property previously used for railroad purposes. The company had acquired the life estate and constructed their road on the property, but there had been no appraisal or payment of damages to the plaintiff. The action, it was held, could not be maintained. Considerable stress was placed upon a statute of that state, and in respect of which the court say: “This seems to contemplate that the company might have two years, after such entry, taking ^possession, and using, in which to get such *501damages appraised, pursuant to the provisions of section seventeen. It seems difficult to suppose that it was contemplated at the time that, in the meantime, they should be liable to be ousted by áction of ejectment.” We have no such statute in this state. Our constitution prohibits the taking of private property for public use without just compensation. Under such a provision, and our statutes with respect to the condemnation of the property, it was held at an early day that the company could not enter, for the purpose of constructing the road, until the damages were paid, or secured, to the owner. Walther v. Warner, 25 Mo. 277. The Vermont case has other features which distinguish it from the present one, but enough has been said to show its inapplicability here; indeed, the judgment there is made to stand upon the peculiar features of the case then before the court. Our statute, which authorizes the appropriation of private property to public use, and provides for the assessment of damages, contemplates that the company will take the initiatory steps therefor. The property can only be taken by pursuing the provisions of the law. In this case the state of the title was known, or might have been known, by an examination of the recorded deeds, when the road was first constructed. The interests of these plaintiffs, derived from their mother, might have been condemned at that time. As this was not done, the defendant cannot rightfully hold on to the property until the damages are assessed and paid to, or into court for, the plaintiffs, and ejectment is the proper remedy.

4. The record shows that the railroad property was sold under foreclosure of a mortgage in 1875, and Baker, this defendant, became the purchaser. Since that, this and several other companies were consolidated, and the entire, property has been mortgaged for large sums of money, perhaps to its entire value. But these facts constitute no estoppel as against Mrs. Price. At *502the time of lier and her husband ’ s death, and for a long time prior thereto, they resided in the state of California, and the plaintiff, it would seem, are non-residents. There is no evidence that they, or any of them, encouraged, or knew of, the doing of these things relied upon as an estoppel. The large debt upon the property shows that the present suit is the practical remedy to pursue.

The judgment of the circuit court is, therefore, affirmed.

All concur.