Jones v. Thomas

124 Mo. 586 | Mo. | 1894

Black, P. J.

This is an action of ejectment for one hundred and sixty acres of land. All parties claim under Nathan Thomas. The defense, and the only defense, is the statute of limitations.

The plaintiff put in evidence a sheriff’s deed, dated in April, 1879, conveying to him four hundred and eighty acres of land, the land in suit being a part thereof. This deed is based upon a judgment in an attachment suit brought by the present plaintiff against Nathan Thomas, the attachment having been levied on the twenty-seventh of February, 1878.

The defendants claim under Obedience Thomas. She brought a divorce suit against Nathan Thomas, returnable to the April term, 1878, of the circuit court. At that term she obtained a judgment, after personal service, for $200 alimony pending the suit. At the same term she obtained an interlocutory decree for divorce, and for $2,000 alimony, wjhich interlocutory decree was made final at the October term, 1878. At that term the circuit court made an order or judgment of sequestration, setting apart to her one hundred and sixty acres of land, the same to include the property in which she resided. A commissioner was appointed, who set off the land in question to her.

The further evidence shows that Obedience Thomas and her children lived on this land at the date of the judgment of sequestration, and she continued to reside thereon, paying taxes and farming the same, and claiming it as her absolute property under that judgment. She died a few months before the commencement of this suit, and the defendants are her children. Nathan Thomas died in 1879 or 1880, about a year after the land had been set off to her. The abstracts do not show when this suit was commenced, but it seems to be conceded on all hands that Obedience Thomas had possession for more than ten years.

It is claimed by the plaintiff, and conceded by the defendants, that Obedience Thomas had no homestead in the property as against the plaintiff’s deed. The plaintiff says the judgment of sequestration is void, for reasons which need not be stated, and this the defendants concede. But they say the judgment of sequestration gave their mother color of title, and that her ten years’ possession under it, gave her a perfect title. Turning now to the decree we find it undertakes to pass to her the one hundred and sixty acres “to be held by her absolutely as property of defendant sequestered and passed over to the plaintiff.” That this order or judgment constitutes color of title admits of no doubt. But it is argued by the plaintiff that, the judgment being void, her only right to the land was that of dower after the death of her divorced husband, and she must be deemed as holding possession by virtue of her right of dower, and hence her possession was that of a life tenant and could not be adverse to plaintiff who had purchased the remainder.

The error in this argument lies in the fact that her possession began before the death of her divorced husband, under a claim of the entire' title, and we have seen that the possession was also adverse to the plaintiff at its commencement. The rule of law is a familiar

one, that when the statute of limitations begins to run it will continue to fun. Had this land been assigned to her as dower during the ten years in a proceeding brought for that purpose to which she was a party, then it is doubtless true that her possession ■ thereafter would have been that of a life tenant. But no such proceedings were had, and the proof is that she claimed title under the judgment of sequestration. As her possession was in its inception adverse to her divorced husband and to the plaintiff, it continued to be adverse during the ten years, and the fact, that she became entitled to dower after the adverse possession began can not change the result. It continued to be adverse, notwithstanding that fact. Judgment affirmed.

All concur.