61 Mo. 310 | Mo. | 1875
delivered the opinion of the court.
This is an action of ejectment to recover possession of certain lots in Jefferson City, and was commenced on the 9th of July, 1869. Both parties derive title from Henry Flachs— the plaintiffs as his heirs — the defendants as purchasers under an execution against him. There seems to be no dispute as to the facts. One of the plaintiffs, the wife of Beisse. is a daughter of Henry Flachs. and was born November 17, 1845. Her father was the owner of the lots in controversy; and in 1847, borrowed $100 from one Wagner, and to secure Wagner,
The title of the defendant was based on the invalidity of this conveyance of Wagner to the infant daughter of Flachs, because of Flachs’ insolvency at that time. In 1846, one Weiss to the use of JBaner, recovered a judgment before Justice Kennedy against Flachs, and an execution issued and was returned nulla bona, and the transcript of this judgment was filed in the office of the clerk of the circuit court, certified by Justice Kennedy’s successor, Fulkerson, and on the 2d August, I860, an execution issued from the clerk’s office of the circuit court, returnable to the August term, 1850, under which said lots were levied on and sold, and a deed made to said Weiss. Weiss conveyed to Bauer, who in 1855, conveyed to Berri, and Berri devised to-Ins wife, who was the original defendant in this case. Clarenbach, the present defendant, was Mrs. Bern’s executor, and entered an appearance and adopted her answer admitting himself to be in possession.
Berri took possession of these lots and inclosed them in 1856, and he and those claiming under him, have been in possession ever since.
The defendant set up the plea of the statute of limitations and then set up their title under the sheriff’s deed, and claimed that the conveyance to the plaintiff, the infant child of'Flachs, was void, because it v-'as made to defraud Flachs’ creditors. The plaintiffs insisted that this sheriff’s deed was void because of various irregularities in the sale, and that the defendants could not go into the question of fraud, as more than ten years had elapsed since the fraud, if any, was perpetrated, and more than five years since its discovery : and evidence was produced on those points. The plaintiffs' bad a judgment.
The only questions necessary to be determined, are :
First — Was the plaintiff barred ? And, secondly — if the plaintiff is not barred, can the defendant depend on a junior deed, the validity of which depends altogether on establishing the prior deed to have been made to defraud creditors— said prior deed having been made and recorded more than ten years before suit brought.
In regard to the first question there seems no room for doubt, under any reasonable construction of our statutes. In the revised code of 1865, (ch. 116, § 1), concerning guardians, curators and minors, it is enacted that “males of the age of twenty-one years, and females of the age of eighteen years, shall be considered of full age for all purposes, and until those ages are attained, they shall be considered minors.” This is a change in the law concerning guardians, etc. In the revision of 1855, and up to the revision of 1865, the provision concerning guardians, minors, etc., (ch. 72, p. 829, § 38) was as follows: “Every guardian or curator shall continue in office, unless sooner discharged, according to law, until the ward, if amale, shall arrive-at the age of twenty-one years, and if a female, until her marriage, or arrival at the age of twenty-one years, whichever shall first happen.”
At the same time in both revisions of 1855 and 1865, and indeed long anterior to either, the statute of limitations remained in these words : “ If any person entitled to bring action,” etc., be “within the age of twenty-one years,” etc. The word “person,” as declared in both codes, applies both to males and females, and this statute without using the terms “minority” or “ of full age,” expressly protects any one, male or female, from its operation until the age of twenty-one years is attained. If this sweeping clause in the statute concerning
This question may become important; it is not so in this case, and therefore, no opinion is given concerning it. In this case we may concede that this section in the act concerning guardians, had the effect to change the statute of limitations, in regard to femal.es; yet it certainly did not act retrospectively, so as to operate oil women who were past the age of eighteen at its passage — at all events, could only so operate as to malte such of age from its passage. And in either construction the plaintiff in this action was not barred.
On the 17th of November, 1863, the plaintifF was eighteen years old, and the statute took effect August 1st, 1866, nearly three years after she had obtained -tlie age of majority fixed by this statute; and if the act was designed to affect her rights from the time she was eighteen, she had only two months and a half after its passage in which to bring suit. But we are all of opinion that this construction of the act will not do. There are two other constructions possible; in either of which the plaintiff is not barred. One is that the act operated on such females as were eighteen at its passage, but giving them still three years from the dale of the act; the other, that it did not operate at all on such, but that they still had until twenty-one, and three years after, to bring their action. In either event, the plaintiff who brought suit on the 9th of July, 1869, was not barred.
Unless, therefore, the twenty-fourth section of this statute has some application to the facts in thepresentca.se, it seems useless to notice the details of evidence or the-instructions given under the fifth clause referred to. A deed to defraud creditors may well be regarded as an c: improper act,” but there was no concealment about it. The deed was immediately recorded and the creditors and all the world had notice of it. The creditors and those claiming under them, laid by, and did nothing to have it set aside for upwards of twenty years. It is difficult to perceive how the twenty-fourth section could by any sort of construction be applied to such a case.
The judgment must be affirmed.