Ogle v. Hignet

| Mo. | Mar 12, 1901

GANTT, J.

This is an action of ejectment for an undivided one-fourth of the northwest quarter of the southeast quarter of section 25, township 54, range 5, east, in Pike county, Missouri.

The answer is a general denial.

Joseph Keithly is the common source of title. By his will said Keithly devised the said forty acres to his wife for life, remainder to his four sons. His wife died in 1884. Three of the sons were adults, and one a minor about thirteen years old.

In 1886 the three adult heirs conveyed their three-fourths interest to Dr. C. A. Wicks, and the minor, Osa Keithly, by parol sold his undivided fourth to Dr. Wicks, who paid him the purchase price in full and Dr. Wicks took possession of the whole tract and fenced it and used it as a pasture until the time of his death. His administrator took charge of it until it was partitioned among the heirs of Dr. Wicks. In the partition it was assigned to Mrs. Hignet and she has had possession ever since, and was in possession when this action was commenced in April, 1897.

Osa Kiethly testified that sometime, he was uncertain when, whether at the time he received the payment for his interest and put Dr. Wicks in possession, or after that time, Dr. Wicks had him sign a bond to make a deed when he arrived at his majority.

Dr. Wicks died before Osa reached his majority. Osa testified that if Dr. Wicks had lived he would have made the deed to him; that Osa took the purchase money, and spent it for his support. In March, 1897, Osa Keithly, after telling Ogle, the plaintiff, that he had also sold the land to Dr. Wicks and spent the money, .again sold the undivided one-fourth to Ogle for $15, the same amount Wicks had given him.

The circuit court held the statute of limitations, under the evidence, was a bar. There was sufficient evidence upon which the court could have found there had been an adverse possession by Wicks and his heirs. Osa Keithly arrived at ■his majority in 1891, and did not bring his action or disavow his sale to Wicks until March 1st, 1897.

The first proposition of appellant is that Dr. Wicks’s possession was not adverse, because he was a vendee under an unexecuted contract of sale. This is untenable under the facts. Wicks paid the full purchase price and took possession in 1886, and had a continuous adverse possession from that date. The collateral agreement of Osa to make him a deed when he reached his majority did not make the contract an unexecuted one on the part of his vendee, Dr. Wicks, and it is settled law in this State that a vendee, under an executed ¡contract, holds adversely to his vendor.

Did the statute run against Osa Keithly before he made his deed to plaintiff? We think it did. In Gray v. Yates, 67 Mo. 603, this court unanimously construed section 4, chapter 191, General Statutes 1865, the same in this respect as it is to-day, to mean that when a right of action accrues to a minor under the disability of infancy, “the period during which such disability continues, though more than ten years, .shall not constitute a bar to his or her action or entry, but he or. she may, within three years after the removal of such disability, and within twenty-four years after such right of action or entry accrued, institute such action or make such entry. If the disability has existed for a period of time less than ten years, the person laboring under . such disability must institute his suit within three years after the removal of the disability, unless said three years, together with the period of disability, are less than ten years, in which event such person is entitled to the unexpired portion of the ten years; for all persons are entitled to ten years in any event. When a party has the three years given by the statute (sec. 4, G. S. 1865) and the whole period given by the first section, the right of action or of entry is barred. . In other words, when ten years have elapsed since the right of action accrued and three of those years have been free from disability, the right of action or of entry is barred.”

The same construction has been given a similar statute in New York. [Smith v. Burtis, 9 Johns. 180; Jackson v. (Johnson, 5 Cow. 93; Wilson v. Betts, 4 Denio 208.]

The right of action of Osa accrued when Dr. Wicks took possession in 1886. Osa became of age in 1891. ,Six years afterw&rds and after the ten years had elapsed, he chose to make a deed to plaintiff who had full knowledge of all the facts. At that time Osa Keithly was barred and had nothing to convey to plaintiff, and the judgment of the circuit court was right and is affirmed.

All concur.