7 Mo. 374 | Mo. | 1842
'Opinion of the Court, delivered by
J. Mackey as executrix of James Mackey, deceased, instituted an action of ejectment in the St. Charles circuit court against Amos Burdyne, who, it was proved, was in possession of the tract of land in controversy. Mackey obtained a verdict and judgment below, and the cause is brought here by writ of error. James Mackey, it seems, claimed a large tract of land, partly situated in St. Charles county, by virtue of a Spanish concession and survey, of which the lot in dispute is a parcel. This claim was presented to the first board of commissioners appointed to determine the validity of French and Spanish claims to land in the then District of Jjouisiana, now State of Missouri, and was rejected ; after-wards it was reported for confirmation by the board of commissioners cieated by an act of congress of July 9th, 1832, and was confirmed by a law of the 4th July, 1836, to James Mackey, or his legal representatives. During the interval between the first rejection and the ultimate confirmation of this claim in 1822, James Mackey departed this life, leaving a will, dated 16 th March, 1822, by which, after some special bequests, he devised his lands to his wife, J. Mackey, the defendant in error, and his seven children, to be equally divided among them ; and conferred on his wife a control of the land devised to his children, until they should marry, or attain the age of twenty-one years. Under the will, letters
The principal question arising from the facts here set forth and presented to the court for its determination, is, whether an executor or administrator, as such, can maintain an action of ejectment for lands of which his testator or intestatedied siezed: or, in other words, whether, upon the death of an individual, the lands of which he was seized will descend to his executor or administrator, or to his heirs? It is not pretended that such a claim for the executor or administrator has any countenance from the common law. By that law the executor or administrator was only entrusted with the personal estate. This included leases of terms of years : and for them he might maintain an ejectment: But the executor or administrator, as such, had nothing to do with freehold estates. This right must be derived from statute, and it must be supposed thatsuch an innovation, so much at war with the opinion of all those instructed in the science of the common law, the introduction of which into our code must unsettle and disturb so many principles heretofore established, should derive its existence, not from mere implication,but from express enactment. Reference has been made to laws which regulate the administration of the real estate of a deceased person, at a period prior to the introduction of the common law into this State, in order to lay some foundation for the right of the executor or administrator to maintain an ejectment. But it must be obvious, that since the introduction of the common law, an event which took place jn the year 1816, this question must be determined by reference to its principles, and the statute laws now in force, and not by any laws, usages, or customs which may have prevailed here before that time. The phraseology of the sta
From the view we have taken of this subject, we do not deem it necessary to determine the question whether the lands confirmed to Mackey, or his legal representatives, by the act of July 4th, 1836, passed by his will, which was executed in 1822. Even admitting that the land did pass, yet as the appellee in her declaration has claimed the land as executrix, and has asserted her rights to the possession of it by virtue of her representative character, and no other, it would be a variance to permit her to recover as devisee or legal representative. 2 Starkie, 308. It is not intended by this to shake the authority of those eases in which it has been held that when the words executor or administrator are used as a mere description of the person, and may be rejected as surplusage, the plaintiff will be entitled to , , , , , , ver m his individual right, although he may be termed cutor or administrator in the declaration. In the case before the court, the appellee has placed her right of recovery on the ground of her bearing the character of executrix, and failing to sustain the right asserted, it would operate as a surprise if she were permitted to turn round and claim the land on another and a different right. The case of Bagnell et al. v. Broderick, (13 Peters,) has been relied on as an authority supporting a contrary doctrine. That action was
The appellant did not insist on the outstanding title he attempted to set up, and nothing will be said in relation to it. As to the length of possession relied on by 'him,'it will be borne in mind, that the legal title to the land was in the general government, and no possession, however long continued, would give a title against it No laches nor neglect is imputable to the government, nor is it included in any statute of limitations, unless expressly named. If Mackey’s claim was of a character, that it could not be asserted in a court of justice, and he was consequently without remedy under our laws, he would seem then to be'in the situation of those against whose claims the courts of justice have been barred, during which time, it has been held, the statute of limitations does not run. Mclver v. Ragan, 2 Whea.
Judgment reversed.