King v. Theis

272 Mo. 416 | Mo. | 1917

BOND, P. J.

I. This is an action in two counts, one for an ejectment and the other to try title. The subject of the suit is twenty-six acres of land lying in Howard County, which were a part of the farm of David Cooper, who died in 1869, leaving four children, to whom he devised the land in question by the following clause of his will:

“3rd. It is my wish that my daughter Fannie E. Cooper have the use of my farm on which I now reside, during her natural life or until she is married, after which I desire that my children, J. D. Cooper, Eliza J. "Woods and Sallie King shall have an equal part of my estate both real and personal share and share alike, and that it shall descend to the bodily heirs of each of them thereby entailing my estate upon them. If my daughter Fannie E. Cooper shall marry then she is to have an equal share with the rest.”

The four children mentioned in this clause of the will died respectively in 1897, 1899, 1908 and 1912, none of them leaving any issue except Sallie A. King, who left six children, the plaintiffs in the present suit.

In April, 1878, three of the devisees mentioned in the above clause of the will brought an action against the other devisee, Sallie King, and her husband and children ' (the present plaintiffs), to partition the land of which their father died seized, including the twenty-six acres in controversy. Partition was prayed according to the provisions of the will. The present plaintiffs (then minors) were made defendants and were represented by a guardian ad litem, a decree in partition was granted, and the land divided into four parcels, numbered 1, 2, 3 and 4, and allotted in severalty to each of the four children of David Cooper.

Thereafter Joseph D. Cooper, executed a trust deed to secure a note for $500, in favor of L. L. Lynn, on forty acres allotted to him by the decree in partition and which includes the twenty-six acres in controversy.

The defendant. of the present action claims by mesne conveyances from L. L. Lynn, to whom the land was conveyed by the trustee under the foreclosure of said trust deed..

In June, 1900, L. L. Lynn, in virtue of his purchase of said land, brought a suit under section 2092-, Revised Statutes 1889, making all of the present plaintiffs parties, and they were duly served with process, but after taking legal advice, declined- to appear in said action. But the attorney who represented other defendants, also filed an answer on behalf of the present plaintiffs, wherein they disclaimed any interest in the land. In that case the prayer of the petition filed by L. L. Lynn was granted. On the trial of the present suit defendant relied on these prior, suits as creating an estoppel, the Statute of Limitations, and-. his paper title.

A judgment was rendered in his favor, from which plaintiffs have duly appealed.

Limitations. II. The true intent and meaning of the will of David Cooper was, first, to devise an estate for life or until her marriage to Fannie E. Cooper in the entire farm; second, in the event of her marriage, to devise the entire farm to her. and his three .other children as tenants in common for life with remainders in fee to their respective bodily heirs; third, in case of the death.of Fannie E. Cooper, while unmarried, to devise the entire farm to his other three children with similar- remainders.

This construction is necessarily applicable to the terms of the third clause of the will of David Cooper, for the reason that by its. language an estate tail at common law would have arisen upon the marriage or death of Fannie E. Cooper, and since that form of tenure is now abolished, the tenant of a fee tail becomes a life tenant with remainders in fee simple to the person to whom the estate would first pass on the death of the first grantee. [R. S. 1909, sec. 2872.] It was not the intent of the testator to make any of the devisees joint tenants of the life estate, for he did not expressly so declare in his will, which is the positive requirement of the statute governing the creation of joint tenancies. [R. S. 1909, sec. 2878.] These conclusions are in strict consonance with the directions of the will and the intent of the testator, which are the measure of its meaning when not ‘opposed to the requirements of the law. This was the criterion of construction at common law, of which the statute is simply declaratory. [R. S. 1909, sec. 583.] It follows that upon the death of Joseph D. Cooper, January 1, 1899, leaving neither wife nor descendants, his allotment of the land in the partition between the children of David Cooper, vested in his surviving sisters Eliza Woods and Sallie King. That partition, while it appertained only to a life estate, was binding, in the absence of fraud, upon the remaindermen of the respective life tenants who in that respect were represented by the owner of the preceding estate. [Stockwell v. Stockwell, 262 Mo. l. c. 683; Sparks v. Clay, 185 Mo. l. c. 408.] At the death of Joseph D. Cooper the land in controversy, through the foreclosure of the trust deed thereon given by him, passed into the possession of L. L. Lynn, who and his successors in title, have continued in adverse possession thereof until the institution of this suit. According to the holding in DeHatre v. Edmonds, 200 Mo. 246, and Shohoney v. Railroad, 223 Mo. 649, the ten-year Statute of Limitations would bar these two sisters under the facts in this record, for the disability of coverture of Mrs. King was removed on December 25, 1904, by the death of her husband and she, notwithstanding which, brought no action prior to her death in 1912, nor was the present action brought until March 28, 1914, about'fifteen years after the death of Joseph Cooper. The bar of the statute is equally conclusive as to Mrs. Eliza Woods and those who claimed under her. It began to run in January, 1899, she died under coverture February 9, 1908, wherefore the plaintiffs claiming under her could only have had the time prescribed by the statute in such oases to bring their suit, which time had fully expired before the institution of the present action. [R. S. 1909, sec. 1883.]

. It being thus apparent upon the conceded evidence the plaintiffs could not recover as against the defense of the Statute of Limitations arising in the open, notorious, exclusive and continuous possession on the part of .the defendant and those through whom' he claimed, it is unnecessary to discuss whether or not the plaintiffs were not bound by the unreversed judgment of the court in the partition suit between the life tenants in 1878, to which action the plaintiffs were made parties and personally served with process. [Castleman v. Relfe, Guardian of Perry, 50 Mo. 583; LeBourgeoise v. McNamara, 82 Mo. 189; Freeman, Co-Tenancy and Partition (2 Ed.), p. 626.] The evidence in support of the Statute of Limitations was admissible under a general denial. [Nelson v. Brodhack, 44 Mo. l. c. 601; Stevenson v. Smith, 189 Mo. 447; Johnson v. Calvert, 260 Mo. 442.]

The judgment of the trial court is affirmed.

All concur.