279 Mo. 280 | Mo. | 1919
Lead Opinion
This is an action to determine interest in a certain parcel of real estate situate in Pemiscot County. Upon the trial helow defendants had judgment, and plaintiffs, after the usual motions, appealed.
The facts are few and simple. Plaintiff Belle Powell married one John W. Powell on the 24th day of March, 1870, and ever since has been and was at the time of the bringing of this suit, on the 4th day of May, 1915 a married woman. While under all the disabilities of coverture, plaintiff Belle Powell (hereinafter for brevity, except where otherwise stated, referred to simply as “plaintiff”) acquired title to the land in dispute. On the 15th day of September, 1882, plaintiff, together with her husband attempted to convey this land by warranty deed to one Mark T. Leonard. The form of deed used in this attempted conveyance was not the general form of warranty deed in common use at that time in the State of Missouri, but seemingly this instrument followed an Indiana form. No point is made, however, upon any portion of this instrument, except the acknowledgment appended thereto which is alleged to be defective. This acknowledgment constitutes the sole ground and raison d’etre of this action. Omitting venue, signature and seal of the officer taking the same, all of which are conventional and are not attacked, the acknowledgment to this deed reads thus:
“Before me Fred P. Leonard, Notary Public in and for said county, this 15th day of September, 1882, personally appeared the within named Belle Powell and John W. Powell, both being personally known to me and acknowledged the execution of the annexed deed.”
A part of the land in controversy was, at the time of the above attempted conveyance thereof, in cultivation and in the possession of the grantors. The grantees in the above instrument of conveyance — we so denominate it for convenience — thereupon took possession of this land, and they and their mesne grantees continued in possession, and were in possession thereof on
The defendants derive their paper title from the above mentioned conveyance to Mark T. Leonard. Leonard thereafter conveyed the land to one Willis Charles. Willis Charles gave a mortgage thereon to said Mark T. Leonard, which mortgage being foreclosed, the land was sold by the sheriff and purchased by one John Wilks, who entered into possession of the same and continued in possession thereof till his death. Upon the death of Wilks, the land was duly partitioned among his heirs, and the part here in .dispute was set off to his daughter Mary, intermarried with one William J. Bowen, who are the defendants herein.
The several defenses interposed upon the trial will be summarized in the opinion, and no necessity exists for lengthening this statement by a recital of them here.
Upon the trial, the testimony of plainiff Belle Powell was offered in evidence by deposition. Among other things shown therein was the nature of the contract made by plaintiff Belle Powell with her co-plaintiff Bex A. Trimble. Touching this contract, plaintiff Belle Powell said in her cross-examination:
“I received information about March of this year from Bex A. Trimble that led me to believe that I could recover this land. Bex A. Trimble is one of the. lawyers representing me in this case. He was to have one half of (sic) 50% of any land recovered by suit or compromise. Mr. Trimble and the lawyers with whom he is associated in this matter are to pay all costs and expense and to hold me harmless in regard to the costs in this suit, or any suits that might he brought for this land or any part of it.”
This plaintiff further testifies that she sold the land to Mark T. Leonard, and that after she sold it to Leonard she “didn’t have anything further to do about it,” and that she had “never paid any taxes on it from that time, since she considered that she had no further interest in it and abandoned all claims to it.” - As a part of plaintiffs’ case they offered a quit
If any further facts shall become necessary to an understanding of the points involved, these will be stated in the opinion.
I. The sole source of paper title in defendants, as such title is disclosed by the record, is one Mark T. Leonard, to whom as stated, plaintiff and her husband attempted to convey the land in dispute by warranty deed bearing date the 15th day of September, 1882. At the time plaintiff signed and delivered, and attempted to acknowledge the instrument in question, and for some ten months thereafter (See Laws 1883, p. 21) the law in force in this State required that any officer taking acknowledgment of a married woman to any deed of conveyance of real estate must examine such woman separate and apart from her husband (Sees. 680, 681, R. S. 1879), and >so certify in the certificate of acknowledgment, and further certify that the wife executed such conveyance freely and without compulsion or undue influence of her husband.
Mere casual reference to the acknowledgment of the deed of conveyance from plaintiff and her husband to Leonard discloses a palpable lack of conformance to the certificate of acknowledgment with the law then in force. That this deed was void is well settled— in fact, that it is so void is tacitly conceded by defendants.
Certain other facts, as shown in part by the foregoing statement, are either conceded by the parties or they are conclusively shown by the record. These we epitomize, and re-state below some of them. They are: (a) That plaintiff was married March 24, 1870, and when she attempted on the 15th of September, 1882, to convey the land in controversy to Leonard, was, is
To escape the force of the legal conclusion, arising from the fact that plaintiff’s deed to Leonard, the common source of title, is void, defendants urge that plaintiffs are barred by (1) the twenty-four-year Statute of Limitations; (2) the thirty-one-year, or so called thirty-year, Statute of Limitations; (3) the ten-year Statute of Limitations as based upon the Act of 1897 (Laws 1897, p. 74), and the alleged duty of plaintiff to have begun her action within ten years after she was by the above act permitted so to do; (4) that the contract between plaintiff Belle Powell and her co-plaintiff Trimble is champertous; (5) that plaintiff Belle Powell
II. Coming to consider whether any of the above defenses are valid as against plaintiff’s paper title, we might, without examining them and for the sake °f argument, concede that each and all of them except that of abandonment would be efficacious and would constitute complete defenses as against any person sui juris■ The defense of abandonment, disassociated from other defenses, e. g., adversa possession, or a failure to pay taxes, has never been recognized as affecting title to real property at common law. For at common law, whatever the rule may have been under the Spanish or Civil law (Tayon v. Ladew, 33 Mo. 207), title to real property can neither be gained nor lost by abandonment operating alone. [Robie v. Sedgwick, 35 Barb. 319; Philadelphia v. Riddle, 25 Pa. St. 259; Perkins v. Blood, 36 Vt. 273.] Because both the defense of laches and that of estoppel in pais may be dealt with together, we do not stop to consider again whether laches may be imputed even to one sui juris when such one puts forward as the basis of his action nothing but a pure legal title. [See Kellogg v. Moore, 271 Mo. l. c. 193; Garrison v. Taff, 197 S. W. l. c. 274; Newbrough v. Moore, 202 S. W. l. c. 551; Bell v. George, 204 S. W. l. c. 519; Chilton v. Nickey, 261 Mo. l. c. 243.]
Touching the insistence of learned counsel for defendants that plaintiff is barred by laches and by estoppel in pais, we are constrained to hold, perforce the authorities, that neither laches nor estoppel in pais is as to her real property imputable to a married woman, who was (and who so continued down to the date of the judgment herein) under the disability of coverture when the amendment of 1889 to the Married Woman’s Act took effect. [10 R. C. L. 403; Waldron v. Harvey,
The legal reasons for this rule are fairly obvious, especially when applied to the concrete case before us. By virtue of the Law in force in 1882, and of the husband’s marital rights at common law, the right of possession of the land in controversy was in the husband of plaintiff. While such husband lived, plaintiff could not have brought any possessory action for the recovery of the land in dispute. This right of possession in the husband had become a vested right before the amendment of 1889 to the Married Woman’s Act took effect. The latter amendment could not divest the husband of his vested right of possession, and could not in any wise affect the husband’s interest therein. No action, it is plain, except a possessory action, would have afforded plaintiff any adequate or substantial relief. Since plaintiff, during the lifetime of her husband, was unable to bring a possessory action, it follows that her failure to sue cannot be the basis of laches. It is .true, that since both the Act of 1889 and the Act of 1897 (Laws 1897, p. 74) took effect, plaintiff, at any time since the latter date, could have brought an action to determine interest, that is, the identical action which she now has before us. But she was not compelled to bring such an action. She was not even compelled to bring the present action at the time she did bring it. She could have waited till the right of possession of the land in her husband terminated by his death, and then, within ten years, have brought ejectment.
In fact, if she had brought an action to determine interest in 1897, as soon as the act supra of that year permitted her so to do, she would have been compelled, by the same token, to have brought another action in 1907 and still another in 1917 (or even earlier and oftener than in ten-year periods, since laches often
The right of plaintiff’s husband to the possession of the land during his natural life (which right since it constitutes an estate of freehold and is in fact an estate pur autre vie, has been called a “life estate,” because its effect upon the remainderman in some phases is similar to that of a. technical life estate) saved and protected plaintiff’s interest. It is fundamental that laches, or neglect to promptly. bring or assert a cause of action to the hurt of a potential defendant, can never be imputed to one who has no right to sue, or to a case wherein a suit if brought, would not afford any actual relief. Laches is but a manifestation of estoppel in pais. The latter is the genus, the former merely a species. That estoppel in pais is not imputable to a married woman who rests under the disabilities of coverture stated in the premises is settled by what we say above, and by the authorities in this State, and by the weight of authority everywhere. [Rannells v. Gerner, 80 Mo. l. c. 483; Cockrill v. Hutchinson, 135 Mo. 67; Henry v. Sneed, 99 Mo. l. c. 425; Lewis v. Barnes, 272 Mo. l. c. 404; Crenshaw v. Creek, 52 Mo. 98; McBeth v. Trabue, 69 Mo. 642; Lowell v. Daniels, 2 Gray (Mass.) 161; 10 R. C. L. 742; Barker v. Circle, 60 Mo. 258; Mays v. Pelly, 125 S. W. (Ky.) 713; Scott v. Battle, 85 N. C. 184; Morrison v. Wilson, 13 Cal. 495; Cook v. Walling, 2 L. R. A. (Ind.) 769, and note.] We need not reiterate that we are passing only upon the concrete case before us, and not upon a case wherein the wife’s separate property is involved, or a case wherein the woman married subsequent to the time at which the amendment of. 1889 to the Married Woman’s Act took effect.
III. The above eases are likewise persuasive authorities against the suggestion that plaintiff was ■ es-topped hy the covenant in her deed. Obviously, also, the plain reason of the thing is against any suc^ view. For, if she is to be estopped hy her deed, then such deed, to be efficacious in producing an estoppel, must of necessity be a good and valid deed, and it is axiomatic that a thing which cannot be done directly cannot, of course, he done indirectly. The deed here is utterly void. Neither can her covenant of warranty estop her, for, among other reasons against such a view, she was not estopped at common law (21 Oyc. 1344) and there was in existence and applicatory in 1882 a statute which limited and made void the covenant of a married woman, except in so far as was necessary effectually to convey her title expressed to he conveyed hy such deed. [Sec. 669, R. S. 1879.] If the deed, as was the case here, was utterly void and conveyed no title hy reason of such invalidity, then it follows that the covenant was void also. It results tñat these contentions of defendants must he disallowed.
IY. Coming to the strenuously and ably urged contentions of counsel for defendants that plaintiff is barred hy the several statutes of limitations noted, we are likewise constrained to disallow each and all of these. The twenty-four-year Statutes of Limitations and the thirty-one-year statute are expressly p¡ea(je(j_ ten-year statute is raised hy a general denial. [Carson v. Lbr. Co., 270 Mo. l. c. 245; Land & Imp. Co. v. Epright, 265 Mo. 219:] Under the facts which were admitted, or which are conclusively shown hy the proof, plaintiff without any question would have been barred hy every statute of limitations pleaded, if she had not been protected hy the disability of coverture. In fact, it is settled law that if she had had an existing cause of action, even the disability of coverture alone would not have saved such cause of action to her, because we have held that, given an ex
In the case of Bradley v. Railroad, 91 Mo. l. c. 498, Brace, J., of this court, expressed the thought with rare terseness when he said: “No cause of action accrued to her until her husband’s death and until that event the Statute of Limitations did not commence to run against her or her heirs.” [Dyer v. Brannock, 66 Mo. 391.]
Nor did the Act of 1897, supra, have the effect to divest the husband’s right to possession, or to confer on the plaintiff the right to bring a possessory action, or to bring any other action which would afford either actual or present relief to her. Besides, as we have already pointed out in discussing other phases of this case, such a view would force us to assume the anomalous position of saying to plaintiff in effect, that she must have sued to determine interest within less than ten years after the Act of 1897 took effect, and that after a judgment in her favor she must continue to bring .fresh suits to determine interest every ten years, while her husband lives, or lose her land as a- penalty. Discussing a situation precisely analogous, we took oc
“Defendants insist that the Statutes of Limitations bar recovery; relying, it seems, upon both the ten-year statute and the thirty-year statute for this position. Both the time and sort of possession meet for a foundation for the running of these statutes were shown, we may concede for argument’s sake; but learned counsel in urging the applicability of these statutes overlook the fact that the plaintiffs are remaindermen, and that Lutes, who holds the life estate, is yet alive, and therefore, since his life estate has not yet fallen in, plaintiffs were not compelled to bring this action till he died. They are not, of course, protected here by their non-age existing up till the time they married, nor by their subsequent and yet continuing coverture, because they may not tack- these disabilities, but they are protected by the fact that defendants were (and yet are as to a present action in ejectment, entitled to the possession of the land in dispute till the holder of the life estate shall die. While there are a few cases wherein broad language was used which was peculiarly applicable to the facts in such eases and which language from its broadness seems to squint at the view that since the right to sue was given to plaintiffs by statute in 1897, they must have sued to determine interest within ten years thereafter (cf. De Hatre v. Edmonds, 200 Mo. 246, 98 S. W. 744, 10 L. R. A. (N. S.) 86; Burkham v. Manewal, 195 Mo. 500, 94 S. W. 520; Haarstick v. Gabriel, 200 Mo. 237, 98 S. W. 760), and while at first blush on some considerations the logic of the thing may seem also to point somewhere in that direction, yet the rule is sound and free from absurdities AArhich holds otherwise (Armor v. Prey, 253 Mo. 447, 161 S. W. 829). For we would involve ourselves in an absurd position if we were to say that plaintiffs are barred, here in this action, but that if they had but waited till the life estate fell in they would have been entitled to bring ejectment at any time within ten years subsequent to
.While the situation presented makes the case a hard one, apparently working great injustice upon the defendants, the rules of law invoked are well settled by numerous adjudged cases. These rules are the result of following the common law, unchanged till 1889 by statutes requiring a more logical and fair view of the relations and property rights of married men and women. We cannot change the law as it is written, however much the compelling justice of the situation may seem to urge. To do 'so would necessitate the overruling of dozens of cases and would bring about an unsettling of the law in matters wherein it has been deemed settled by Bench and Bar for almost half a century. [See Dyer v. Wittier, 89 Mo. 81; Howell v. Jump, 140 Mo. 441; Shumate v. Snyder, 140 Mo. 77; Vanata v. Johnson, 170 Mo. 269; De Hatre v. Edmonds, 200 Mo. l. c. 267; Smith v. Smith, 201 Mo. 533; Land & Imp. Co, v. Epright, 265 Mo. l. c. 215; Graham v. Ketchum, 192 Mo. 15; Dyer v. Brannock, 66 Mo. 391; Pim v. St. Louis, 122 Mo. l. c. 665; Bradley v. Railroad, 91 Mo. 493; Hall v. French, 165 Mo. l. c. 440; Smith v. Patterson, 95 Mo. l c. 529; Babcock v. Adams, 196 S. W. 1118; Lewis v. Barnes, 272 Mo. 377.] Many other cases can be found, but these should suffice. If to-day, in order to meet a seemingly unjust and harsh case, we should change the settled law, perhaps to-morrow, again in order to meet a harsh and unjust case, we might be compelled to return to the law as it is now ruled.
YI. Upon the question of champerty, the ruling must likewise be against the defendants. [Euneau v. Rieger, 105 Mo. l. c. 680.] If the agreement between plaintiffs Belle Powell and Bex A. Trimble inter sese be champertous, this fact will not serve to deprive plaintiffs of relief touching the subject-matter champertous contract as against a stranger to such champertous agreement. While there are in some jurisdictions — Wisconsin, for example — holdings to the contrary, and in favor of the view urged on us by defendants, the great weight of authority everywhere bears out the rule we state above. This State early took the view set forth in Euneau v. Rieger, supra. This rule is buttressed both by the reason of the thing and by the overpowering weight of the ruled cases. We see no good or sufficient reason to now change either our views upon the point or the rule . announced thereon. Let this contention also be disallowed.
It results that the judgment of the trial court was erroneous and for the wrong party. Let this judgment be reversed and the cause remanded, with directions to the trial court to adjudge the title to the land in controversy to be in plaintiffs, subject to the right of possession of defendants therein, till such time as the husband of Belle Powell shall depart this life, if
Dissenting Opinion
(dissenting). — Our learned brother says this is a harsh case. To this I cheerfully accede. It is indeed so harsh, that I will not lend my assent thereto, if upon any legal theory it can be avoided. That the plaintiff in this case received the full value for her land when she sold it is not questioned; that she then, and for more than thirty-one years thereafter, abandoned all claim thereto, she admits; that she knew that her 'grantee was taking possession thereof, and would make improvements thereon, stands to reason from the record; that the grantee and his subsequent vendors in title did make permanent, valuable and lasting improvements is thoroughly shown; that by reason of these improvements and the advance in lands (growing with the flux of time) the cheap land of 1882 is now worth $32,000; that it required a champertous contract, at this late date, to spur her to this action, is shown. In short, the record facts are nauseating to a sense of right doing, and shocking to a keen sense of justice. I believe that there is a clear way around this wrong, and in the succeeding paragraphs will suggest them.
I. I am not unmindful of our previous rulings upon several of the questions I shall discuss. The harsh facts of this case furnish me further excuse to reiterate what I said in Babcock v. Adams, 196 S. W. l. c. 1120. I then said: “I have long had in mind the idea that we have misconstrued Section 1881, Revised Statutes, 1909, when read in connection with the Married Woman’s Act. In origin this statute antedates the Married Worn-
“Since the passage of the Married Woman’s Act there is no reason for saying that a man or single Avoman must sue for lands within ten years, but the married woman, possessed of all the rights to sue as the others should have the statute tolled in her favor. I am aware that our opinions are the other way, but these have long since been my views, and I take this occasion to express them.”
It will be noted that I concurred in the Babcock case, solely on the ground that our previous rulings constituted rules of property, and to disturb them would be to disturb property rights. But since that time we have in the case of Klocke v. Klocke, 276 Mo. 572, ruled that the overruling of an opinion of this court, Avhioli con
In 7 R. C. L. p. 1008, the idea is most elegantly expressed: “If judges were all able, conscientious, and infallible; if judicial decisions were never made except upon mature deliberation, and always based upon a perfect view of the legal principles relevant to the question in hand, and if changing circumstances and conditions did not so often render necessary the abandonment of legal principles which were quite unexceptionable when enunciated, the maxim stare decisis would admit of few exceptions. But the strong respect for precedent which is ingrained in our legal system is a reasonable respect which balks at the perpetuation of error, and it is the manifest policy of our courts to hold the doctrine of stare decisis subordinate to legal reason and justice, and to depart therefrom when such departure is necessary to avoid the perpetuation of pernicious error.”
I think we went wrong in the early cases of Throckmorton v. Pence, 121 Mo. 50, and Lindell Real Estate Co. v. Lindell, 142 Mo. l. c. 76, when we held that under the Married Woman’s Act of 1889, a married woman did not have to sue until she became discovert. There were two lines of thought in the early, cases at the time of our first ruling. One line held that the Married Woman’s Acts (similar to our own) gave a married woman the right to sue whilst she was covert, but she was not obliged to sue where there were statutes (like our Secs. 1881 and 1894, R. S. 1909) which excepted married women from the usual statutes of limitations. The other line of cases held, that the force and effect
The cases to be overruled are all oases construing' statutes, and under the ruling in Klocke’s case, supra, no baneful effects will follow. There is no sense in saying (since the Act of 1889 as to married women; that a man or a single woman must sue within the statutory period in order to protect their rights, and that a married woman, with the. same legal right to sue, may postpone her action until she becomes discovert. There was no reason for giving her the right, unless she was to be required to exercise it, as a femme sole. The very purpose of the law was to place her in the position of a femme sole. She needed no statute to give her the right to sue after she became discovert.
The two statutes (Secs. 1881 and 1894, Revised Statutes 1909) had the exceptions therein as to married women stricken therefrom per force of the Act of 1889 as to married women. We should have so ruled from the beginning. We will have to so rule, or 'be troubled with other harsh and unrighteous cases, as is the case at bar. It will be noted that the two sections cover all kinds of actions, and that the exceptions are the same in each. With these exceptions stricken from these statutes, we are permitted to get to the meat of the instant case.
II. It is urged that the plaintiff in this ease could not sue for the possession, because her husband was yet alive. Under our holdings, I shall grant this proposition. But that concession does not settle the case. ^ the tolling statutes (Sections 1881 and 1894, R. S. 1909) no longer contain an exception as to married women, then this plaintiff is not necessarily protected by the fact that her husband, up to the date of the deed had the right of possession, and that after the deed the defendants and then their predecessors in title had the right of possession.
By the Act of 1897, which, with its amendments, is now Section 2535, Revised Statutes, 1909, the plaintiff was given a cause or right of action, and a remedy. This right of action has been in her since 1897. It is this identical right of action that she is now attempting to enforce. In other words her present suit is predicated on Section 2535, supra, and is the same suit that she could and should have brought in 1897. Estoppel in pais is duly pleaded. Not only so, but well shown in the evidence. In other words, the record tends to show improvements on the land since 1897. A levee was completed in 1896, since which drainage of the land by a drainage .plan has been perfected. Many improvements were made since 1889, including the levee. Four or or five houses have been built upon the land, whilst there was but one in 1882. But it suffices to say that the evidence tends to prove improvements made since 1897.
Mrs. Powell should have brought this suit when the right was first given her so as to stop these improvements. Failing to do so she is estopped now from maintaining the very suit she should have brought in 1897. She knew that her grantee would claim the full title from the date of her deed in 1882. She recognized this claim of full title, as is shown by her evidence. She knew that improvements would be made. She knew all these things, and is now fully estopped from maintaining this particular action, because defendants were permitted to act to their detriment. And this is true, although
We are not discussing laches, but estoppel in pais. We undertook to say that there was a difference betAveen the two doctrines in Kellogg v. Moore, 271 Mo. l. c. 193 et seq. After disposing of the question of laches in our paragraph 2 in that opinion, estoppel in pais is disposed of in paragraph 3 of that opinion. So that Ave hold that plaintiff is clearly estopped from maintaining this particular action, because (eliminating from our tolling statutes Sections 1881 and 1894, supra) the exception as to married women she had an unrestricted right to bring her action, and thereby forestall the improvements thereafter made. At that time she had the clear right not only to sue, but the clear and unobstructed right to contract. At that time she could have contracted as to her alleged reversionary interest, and having the right to contract with reference thereto, and to convey the same, the doctrine.of estoppel in pais will apply. At that time she had all rights to sue and to contract, save and except the right to sue for possession. We concede that where one cannot sue to protect rights, she can’t well be estopped. We further concede that when one cannot be bound by contract she may not be bound by estoppel. But these concessions do not reach this case. In this very case she is trying to enforce a right which could have been enforced from 1897 to the present. As to her, the doctrine of estoppel in pais was properly invoked, and if sustained by the facts, should preclude this particular action. Whether she may have a more successful form of action when her husband dies, is another question. It is to be hoped that some Providential act may obviate the harsh rules of law, and save defendant from dire results. But her own conduct estopped her as to this particular action.
Estoppel in pais is not dependent upon limitations, nor is it confined to equitable actions. The doctrine was and is recognized in common law courts. [16 Cyc. 682.] In that it differs from laches. [Kellogg v. Moore,