30 Mo. 99 | Mo. | 1860
delivered the opinion of the court.
A testator can not deprive his executor of the power of selling his lands for the payment of his debts by devising them away. A devise no more affects this power than a descent in the course of inheritance. (Carson v. Walker, 16 Mo. 87.) This is the settled law in this state.
. The plaintiff maintains the ground that, as devisee, she took the title to the lot in controversy her husband had at the time of his death, subject to a power of sale for the payment of his debts; that as executrix she could be compelled to exercise this power; that notwithstanding, if by virtue of this title, thus vested in her, she has been enabled to make favorable compromise in her own right, as devisee, with those holding a title adverse to that devised to her, such compromise enured to her own benefit, and was no concern of the creditors, who were still free to act as if no compromise had been made; that there is no such privity or relation of trustee and cestui que trust, which entitles the creditor to any advantage or profit the devisee may make by means of the title acquired by devise, which is always subject to the power of sale for the payment of debts, a naked power which can not be defeated by alienation or disseisin; that the Schools took it from her subject to this power, and if they have been wronged, the creditors have no right to complain or take advantage of it; and, it being a matter between her and the Schools, the Schools must look to her for any injury
While the plaintiff thus maintains that the title which she took as devisee, and which was the consideration for the compromise she made with the Schools for the lot in controversy, enures to her individual benefit, she must also be willing to grant that she, as devisee of her husband’s title, could not affect the right of the creditors to have sold for ihe payment of debts such title as he had at the time of his death; nor by any acts of hers defeat that title when conveyed to a purchaser under proceedings for the payment of debts.
How, then, does the statute of limitations influence this case ? We must keep in mind that we are to regard the matter as though the title of L. B. Shaw and that of the Schools were in different persons. In looking to the mere law of the case, uninfluenced by any equitable consideration — for the plaintiff has instituted an action at law to recover on the mere strength of her legal title — the title that Octavia Shaw asserts under the Schools is to be viewed as though it was used by any other person; and the fact that she, as executrix of her husband, sold his title to-Gordon for the payment of debts, does not affect her right to recover in this action of ejectment. Octavia Shaw took L. B. Shaw’s title under the will, in the whole of block No. 204. By a deed dated 12th December, 1845, the Schools conveyed to her their title to the south half of the block in consideration; that she had conveyed to them her title to the north half. The south half of the block is the lot in controversy. By the devise, the
Now can Gordon, in order to make out a defence under the statute of limitations, avail himself of the prior possession which commenced under the title which he purchased ? Is there, under the circumstances of this case, any privity between the possession of Gordon and his heirs since the sale and that which existed at the time of L. B. Shaw’s death ? When Octavia Shaw acquired the School title, which was paramount to the title she held as devisee, did the possession to which she was entitled as devisee connect itself with the paramount title of the Schools, and thus break that continuity and privity of possession between the successive tenants .which is necessary to make the defence of an adverse possession available ? Suppose a stranger had purchased Mrs. Shaw’s School title before she sold her husband’s right, title and interest as executrix, and he-had brought this suit; would Gordon or his heirs, as against him, have the right to plead the statute of limitations, relying on the possession of the husband at the time of his death ? The tenant under Mr. Shaw, by his devise to Mrs. Shaw, became her tenant, and if she afterwards became the purchaser of a paramount title, would he hold under that title, and would the possession connect itself with that title ? If, afterwards, the husband’s title is by operation of law conveyed away, is there any privity and continuity of the possession of the purchaser
The foregoing contains our view of this matter as it is presented in this suit, considered only as an action of ejectment. Arriving at the conclusion we have, it will be unnecessary to determine whether the answer is sufficiently full in setting up the equity of the defendant so as to be available as a de-
It will have been observed that in framing this opinion we .have overlooked the interest of Page & Benoist in the lot in controversy. Their interest was not involved, and the mention of it would have served no other purpose than to embarrass it. It was thought therefore best to leave it unnoticed. The opinion, as written, would not have been the least changed, as to the effect of it, had the interest of Page & Benoist not been noticed.
The judgment is affirmed.