76 Mo. 207 | Mo. | 1882
This is an action of ejectment instituted in the circuit court of Cass county by plaintiffs, who are husband and wife, to recover a strip of land in said county, taken and held by the defendant Morrison as a right of way for the road of said company, he being the owner, by purchase, of said road.-
The petition is in the usual form, and the amended answer of Morrison, upon which the cause was tried, alleged that the company located and constructed its road from the city of Pleasant Hill, Cass county, Missouri, to the city of
It was admitted that the title to the real estate, when taken by the railroad company, was in the plaintiff’s wife, and was her general property. She testified that she did not consent to the original occupancy of the land by the railroad company, but that after the company entered she acquiesced and encouraged the completion of the road, and had taken no legal steps against the company until the institution of this suit. The defendant Morrison introduced evidence to establish the special facts alleged in his answer.
The court gave the following declarations of law for plaintiffs:
1. Although the court may believe from the evidence
2. The said plaintiff’, Mrs. A. L. Kanaga, being a married woman, and owning said land as her general legal property by patent dated in the year 1870, could not by any act or declaration of hers, other than a deed executed by herself and her husband, by her duly acknowledged and delivered, confer upon said railroad company any right to enter upon her land or any interest therein, or estop herself from maintaining an action for the recovery of the possession of said land.
3. The said plaintiff, F. C. Kanaga, could not, as the husband of his wife and co-plaintiff’, Mrs. A. L. Kanaga, she being the owner of said land by patent dated in the year 1870, as her general property, by an act, declaration or deed of his own, not signed, sealed, acknowledged and delivered by his wife, confer upon said railroad company any right to enter upon said land, or any interest therein, or estop himself and wife, or either of them, from maintaining an action for the recovery of the possession of said land.
The following asked by defendants were refused :
2. If the court finds that plaintiffs acquiesced in the . occupation of the land in controversy for the construction of the St. Louis, Lawrence & Denver Railroad, without pre-payment of land damages, upon an understanding or contract that no depot should be located nearer to Ray-more than Rankin, and that the road is completed and in operation, the finding must be for defendants, even though a depot was located nearer than Rankin in violation of said understanding or contract.
3. If the court finds that plaintiffs consented to the occupation of the land in controversy for the construction of said railroad, upon condition that the railroad company would not locate a depot nearer to Raymore than Rankin, and that said railroad was constructed and is now in operation, the finding must be for defendants, even though a depot was located at Belton in violation of said condition.
The only difference between the case at bar and those above cited is, that here the title to the land was vested in the wife, whereas, in the above cases, the sole plaintiffs were the owners in fee.
Whether the wife would be estopped by her conduct from claiming the land against the company, if her husband were dead, we are not called upon to determine, because the husband, during the marriage, has an exclusive right to the possession of her real estate, not held to her sole and separate use, and is the only proper party plaintiff in a suit to recover possession thereof; and it is sufficient to say that, if he acted in a manner to estop him from asserting his right to the possession, he nor she can recover, whatever right his wife or her heirs may have after the dissolution of the marriage by the death of one of the parties, or otherwise. In Bledsoe v. Simms, 53 Mo. 308, this court held, Adams, J., delivering its opinion, that: “An action of ejectment can only be brought against a person in possession of the land. The possession of a husband is the possession of a wife when she holds the title. Under our statute concerning married women, (Wag. Stat., 938, § 14,) the rents, issues and products of the real estate of a married woman, and the interest of her husband in her right in any real estate which belonged to her before marriage, are during coverture exempt from attachment or execution * * and no eonveyance during coverture can be made by the husband, without joining his wife in the deed, etc. The statute is intended to protect the wife’s land for her benefit, during coverture, but does not alter the common law relations of husband and wife. He is still her protector and representative, and is entitled as such to the
"With regard to Nos. two and three, asked by defendants, no declarations on the same subject were asked by plaintiffs, or given by the court, and, from the agreed abstract, it does not appear that any evidence was adduced on those issues.
the judgment is reversed and the cause remanded.