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adverse possession, under which the defendants claim, first commenced, was the owner in fee of said real estate, and a married woman, with issue born alive of that marriage; that the said marriage continued uutil 1869, when it was dissolved by the death of the mother; that the father survived the mother and died in 1870; and that this suit was commenced in 1878, and within ten years after the death of the father; but not until thirtytwo years after said adverse possession had commenced, and thirty-one years after the date of the present statute of limitations of 1847, and more than three years after the death of their father. The defense, is the 24 years statute of limitation. Under this state of facts, the only question is, are the plaintiffs barred of their right of action, under a proper construction of the statute of limitation of 1847, invoked by defendants, for their protection.
The 1st section of that act, now section 3319, of the Rev. of 1879 on its face declares, in substance, that no action for the recovery of lands, or the possession thereof, shall be commenced, had or maintained, by any person whatever, unless it appears, that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims, was seized or possessed of the premises in question within ten years before the commencement of such action or suit.
(But it may be remarked at the outset, that, by common consent, the proper construction of the statute is, that, notwithstanding the sweeping Janguage of the 1st Section of the act, no person is embraced in, or contemplated by the 1st, or any subsequent section of the statute, except such as have a present-existing right to commence an action or make an entry. Dyer vs. Brannock 66 Mo., page 422—Johns and Wife vs. Fenton, not yet reported-Harris and Wife vs. Ross, not yet reported.)
Section 4, now section 3222 of the Rev. 1879, declares that, “If any person entitled to commence any action in this article specified, or to make an entry, be, at the time such right or title shall first descend or accrne, either within the age of twentyone years, or insane, or imprisoned on any criminal charge, or in execution upon some conviction of a criminal offence for any time less than life, or a married woman, the time during which such disability shall continue shall not be deemed any portion of the time in this article limited, for the commencement of such action or the making such entry; but such person may bring such action or make such entry after the time so limited, and within three years after such disability is removed :-provided, that no such action shall be commenced had or maintained, or entry made, by any person laboring under the disabilities specified in this section, after twenty-four years after the cause of such action, or right of entry shall have accrued.”
Section 3224-Rev—1879, reads that: “If any person, entitled to commence such action or to
make such entry, die during the continuance of any disability specified in section three thousand two hundred and twenty-two, and no determination or judgment be had of the title right of action to him accrued, his heirs or any person claiming from, by or under him, may commence such action or make such entry after the time in this article limited for that purpose, and within three years after his death, but not after that period."
The question before us, it may be remarked, is determinable, of course, by the state of the common law, as it stond, at that date, unaffected by subsequent statutes limiting the common law rights of the husband in the fee simple estates of the wife. The material and decisive question, for determination, in this case, therefore, is, to whom, by the common law, as it stood at that date, did the right of action or cause of entry accrue, by reason of the adyerse possession, or disseizin, under which the defendants claim title.
The solution of tbat question depends upon another, to wit; who, under the law and the facts had, or was entitled to, the seizin and possession of the premises, when the adverse possession first commenced. The Court of Appeals, in their opinion affirming the ruling and judgment of the circuit court, held that the case was governed by that of Valle vs. Obenhause 62 Mo., 81, as modified and explained by Dyer vs. Brannock 66 Mo. 391 and 442, adjudicating upon this very title. 14th Mo. Appeal Reports 52.
That case (Valle vs. Obenhause) held, that "The husband is understood to be jointly seized of his wife's estate, and during the existence of coverture he is not tenant by the curtesy, but only seized by right of his wife, and if there be a disseizin, it is of the joint estate, and they must jointly bring an action to recover the possession. Under this view of the title of husband and wife in the lands of the wife, the statute of limitation will begin to run from the date of the disseizen against both.” If that ruling be accepted as the present state of the law in this state on this question, the plaintiffs are unquestionably barred.
It has been something over ten years since the decision was rendered, and it has justly been esteemed an important one, and if, during all this time, its correctness has not been challenged, it should not now be lightly called in question. It becomes important, therefore, to consider, not only the case itself; but, also, how far, if at all and to what extent, it has since been questioned, modified or overruled.
In the first place it may be remarked, that the opinion in that case was that of a majority of the court-one of its members being absent, and another delivering a dissenting opinion to the effect “that the wife had no right of action or entry, after the disseizin, until the death of the husband, and that her grantee, the plaintiff, in that event was not barred by the statute of limitations."
It may also be added that one member of the majority placed his concurrence in that opinion
on grounds somewhat different from those stated in the opinion proper. It may be further remarked that the case, when decided, was regarded by the court as a new one in regard to the proper construction of our statute of limitations, and for that reason, as well as its own merits, was carefully considered by the several judges in their respective opinions. In that of the court proper, as well as that of the dissenting judge, the two“opposing theories” are elaborately discussed, and numerous authorities cited in support of the respective positions. So that but little, if anything, remains to be said on the question itself beyond a few remarks, the citation, perhaps, of some additional authorities, and a consideration of subsequent decisions of this court, in which the question itself, or the legal propositions on which the question at issue rests, are stated and recognized with more or less distinctness, or else more elaborately considered, and in 'one case, at least, where the Valle & Obenhause case is directly questioned, and its construction of the statute of limitations in this behalf expressly questioned.
The Valle-Obenhause case itself, in speaking of the effect of the tenancy by the curtesy of the husband upon the wife's seizin and possession of her fee simple estate, concedes that “It is clear that if a wife has a mere reversion, the statute does not bar her, ubtil her reversion vests by the death of her husband, since in such cases her right of action only commences on the termination of the particular estate.”
The court then remarks, “Where a particular estate has been created by the husband, whether with or without the consent of the wife, the wife or her heirs cannot sue until its determination." The error in this is, that the creation of the particular estate is the act of the marital law, and not of the husband's deed; the latter simply transfers what the former creates. Under the facts and authorities the seizin and possession of the wife, by operation of the 'marital law, is transferred to the husband during his life, consequently no right of action accrues to her or her heirs until his death, and in such case the wife is not witbin the purview of either the 10 or 24 year provisions of $ 3222, since she is not in the language of that section entitled to commence an action or make an entry. In such case no cause of action whatever accrues to the wife until the husband's death.
The question of the right of action depends upon the fact and right of seizin or possession. Whoever is entitled, under the law, to the possession, "ex necessitate” is entitled to the right of action, As was well said in the dissenting opinion in the Valle-Obenbause case, supra, the statute of limitations ($ 3222), does not undertake to determine who is, or is not entitled to commence an action, or make an entry, but simply provides within what period such person, so entitled, shall commence their action or make their entry. That question is determinable solely by the common law applicable to the facts of the case.
It may be conceded, also, as claimed in the concurring opinion in that case, that the statute was designed to operate with uniformity, and exclude all alike, whether infants, femmes coverts, insane persons, etc., after the lapse of 24 years from the date, when the right or title contemplated shall have first accrued.
“If, (as elsewhere said, in said concurring opinion, in speaking of the right of action), it has descended or accrued, then by the express proviso of the statute, 24 years, even in the case of a married woman, makes a complete bar.” But the question remains, has the right in question under the law and the fact so accrued? If it has, it is unquestionably barred; but otherwise, not.
It is true, that infants, insane persons, prisoners and married women, are all grouped together in § 3222, and are all to be treated alike—as barred by its provisions whenever they are alike entitled to sue, but only when so entitled. There is a marked difference in the effect which the several disabilities therein mentioned have upon the subjects thereof, at least, so far as the married woman is concerned.
It must be remembered that, as to infants, insane persons and prisoners, their several disabilities have no effect to displace or suspend their seizin or possession of their real estate.
not so in the case of a married woman. Her disability of coverture, by its own force, under the marital law, operates to transfer her seizin and possession of her fee simple estate to her husband, and with it the consequent right of action. This important difference, so far as a right of action incident to a disseizin is concerned, seems to have been overlooked, both in the opinion of the court and that of the concurring opinion.
But passing from that decision, the next case in which this question came before the court, is that of Dyer v. Bannock, 66 Mo. 420 to 423, and especially 422, which appears to be an adjudication upon this very title involved in this case. 14 Mo. Appeal, 54 and 2nd Mo. Appeal, 432.
The opinion in this case, as I understand it, seriously impairs, if it does not virtually overrule, that in the Valle-Obenhause case. While it, in terms evidently recognizes the ruling in that case; yet, it states, with much distinctness and clearness, and with apparent approval, the general leading legal propositions announced as the basis of the dissenting opinion in that case. It appears to me difficult, if not impossible, to reconcile the two
It is there stated, that “it is generally understood that the statute of limitations does not run against any one who has no right of possession.” It is there also said, speaking of the husband, that “So long as he lives, his life tenancy, whether outstanding in a third person, or remaining in him, effectually prevents any action or entry by his heirs." It is there further said, “This would be the result, whether the husband, during the life of the wife, bad transferred his estate to some third person by deed, or it has passed to an adverse possessor.”
It is also there said, in speaking of the instruction of the trial court in that case, that “The objection to this instruction is, that the tenancy by the curtesy of A. W. Dyer, consummate on the death of his wife, is entirely overlooked. Mrs. Dyer died in 1869, before the bar of 24 years had elapsed. Her estate, not having been barred by the statute of limitations, on her death passed to her heirs. Her heirs, however, could not sue on her death, because her husband survived her, and they had no right of entry or .action during his life estate. If the statute of limitations is construed to run against them from the death of the mother, it operated against parties who had no right of action, and who would have been trespassers had they undertaken to enter. Indeed, upon this construction of our statute, had the husband lived three years or more after the death of the wife, the title of the heirs would be wholly destroyed, since they cannot sue during the continuance of the particular estate, and before its determination the three years from the death of the mother have gone by.” It is also stated in said opinion, that, “The person barred by the statute is one whose right of entry has accrued, and who neglects to sue during the three years alloted after his right of action accrues. The opinion then winds up with this remark"Whether, in the event the suit had not been brought within three years after the death of the husband, the heirs would have been barred by an adverse possession of ten or thirteen years, as was held by the Court of Appeals, is of no practical importance in the case. It is unnecessary to give an opinion on this question until such a arises." And just that identical case has arisen on this record, and upon the same title, and we are now called on to decide what was there waived.
In the case of Kanaga & Wife v. St. L., etc. R. Co., 76 Mo. 214, the court states the common law rights of the husband in the wife's fee simple lands, in the following pointed language: “The husband, during the marriage, has the exclusive right to the possession of her real estate, not beld to her sole and separate use, and is the only proper party plaintiff in a suit to recover the possession thereof." If this be true, the ruling in the ValleObenhause case, supra, cannot be correct.
In the still later case of Gray and Wife v. Dryden, 79 Mo. 106, Commissioner Martin uses this equally pointed language: "This was an action for an injury to the actual possession of real estate. The possession of the wife was the possession of the husband. I do not well see how their possession can be joint or common under our law. Certainly this is not so in respect to her general real estate, which is placed by the law in the exclusive possession of her husband. Where he is in possession of it, the fact that she is on it with him, gives her no possession, any more than to
any other member of his family, whose actions are subject to his control. She is not in joint possession with him, because she is there; and she is not a necessary party to any suit to vindicate the possession against trespassers and wrong-doers."
In a still later case, that of Mueller & Wife v. Kaessman, 84 Mo. 318, 332, 330, it was held, that “in this State a wife is not a necessary party to an action of ejectment by the husband for her lands." The leading question, however, in that case was, as to how far and to what extent, the common law rights of the husband in the real estate of the wife, were changed, modified or abolished, by $ 3295, Rev. Stat. 1879, first enacted in 1865. In the discussion of that question, the common law rights of the husband, anterior to that statute, are stated at page 324 in the following language: "What were the rights of husband at common law in the land of the wife? These. He was jointly seized with her of that land: bad jure uxoris, the exclusive right to the possession of that land, its rents and profits; could make a tenant to the precipe; could lease or mortgage by his own deed alone; or by his deed, without joining his wife with him, convey his marital interest in the land, which conveyance would be good during their joint lives, and his freehold estate might be seized and sold on execution.” At page 330 this further language is used : “At common law it was necessary for the husband to join the wife with him in an action to recover the real estate of the wife,
and if the common law rule has not been abrogated by our code, it would seem that she must be joined. It has, however, been otherwise decided in this State, the husband being regarded as the only necessary party plaintiff in actions for the recovery of her lands." Citing Gray v. Dryden, 79 Mo. 106; Cooper y. Ord, 60 Mo. 420, and cases cited.
This case, also, says the Kanaga Case, 76 Mo. 207, in so far as it conflicts with the views therein expressed, should be no longer adhered to. But this, as I understand the case, does not affect, or overrule, anything therein said as to the common law rights of husband and wife anterior to the enactment of the statute ($ 3295) limiting such rights, but only his rights to his wife's land, since the passage of the statute under construction.
In a still later case, that of Harris and Wife v. Ross, not yet reported, this language is used : "It is of the essence of the statute of limitation not to run against a party until a right of action has accrued to such party. The statute strictly speaking, it must be remembered, whether expressly or by analogy, deals only with the rights of action, and when there is no such right there can be do bar. In such case there is nothing for the statute to operate upon, or to set the same in motion.
Sec. 3222 of the statute of limitations, by its terms, deals.only with persons entitled to commence an action or make an entry; and s 3224 of same act has no application to the heir of a person not thus entitled.
In the late case of Campbell v. Laclede Gas Co., 84 Mo. 352, and pages 376 and 7, the commissioner, after showing that the plaintiffs are clearly barred by the ten year statute of limitation, adds this further paragraph : “Under the rule approved in Valle v. Obenhause, 62 Mo. 81, the plaintiffs would be barred by the absolute limitation of twenty-four years, wbich runs through all these disabilities, excepting only the suspension of the right to sue by reason of an existing tenancy by curtesy."
This, at least, is a recognition, by the commissioner who wrote that opinion, of the rule laid down in the Valle-Obenhause Case.
The authority of that case, so far as this one is concerned, however, may well be questioned for two reasons: 1st. As it appears that the plaintiffs were clearly barred by the ten-year law, it would seem that there was nothing left for the twentyfour year proviso to operate on, and its potency was not at all needed, as it only operates when the ten year law fails to destroy plaintiff's title. 2nd. As it appears that the disability under which the parties labored, through whom the plaintiff's claimed at the time the adverse possession was first taken, was that of infancy, and not coverture, as in the case at bar.
Their subsequent. disability of coverture would afford no protection as cumulative disabilities are not allowed. But, be tbis as it may, the commissioner evidently recognized the authority of that case.
To this opinion of the commissioner there is a concurring opinion of a member of the court, concurred in by three others of the judges, to the effect that “while he concurred in holding the plaintiffs to be barred, it was not upon the authority of that case; and he desired to add to what he had heretofore said in his dissenting opinion (62 Mo. 90), that a statute which deprives a married woman of her property, for failure to sue for it in twenty-four years, when, during all that time, she had no right to the possession, and could not, therefore, maintain an action for such possession, was, in his opinion, plainly unconstitutional. The construction given to the statute, by a majority of the court in that case (62 Mo.), could not, therefore, be the correct one.”
This concurring opinion is, at least, a declaration to the effect that the rule laid down in that case is not the law. It is, however, proper to say of this concurring opinion, as was said of the opinion of the commissioner, that its authority also may be equally questioned for the same reasons.
The last case, in wbich reference is made to the ruling of the Valle-Obenhause case, 62 Mo. 81, is that of Johns and Wife y. Fenton, not yet reported, wbich was a suit by the wife and her second husband for the admeasurement of dower in the real estate of her first husband. The doctrine of that case, as I understand it, in treating of the scope and operation of the statute of limitations,
is to the effect that the right limited is a present, existing right of action or of entry; that the wife's right to dower is not of that sort, and for that reason not barred by the statute, and that it is obvious, that cases like “Valle v. Obenhause, 62 Mo. 81, can have no application to such a case. This manifestly is the correct doctrine. The court, then, speaking of the assignment of dower, holds, that the statute begins to run from the period of its assignment, and if assigned before her second marriage her right of action would be barred in ten years. If, after that marriage, then, by the period of twenty-four years—citing Valle v. Obenhause-conceding, without admitting, that that might be true; yet it is obvious that such a case is not in point, and would be no authority in support of the ruling in the ValleObenhause case, for the reason, if no other, that the wife's real estate in the case supposed, is not an estate of inheritance, to which the husband's tenancy by the curtesy could attach, or interpose, as in that case, and in the one at bar. This case, therefore, has no application, and is not an authority in the case at bar.
The law on the question at issue is well stated in strong and pointed language in "Sedgwick & Wait on Trial of Title to Land," at page 117 and 118, $ 219, where it is said: “A tenant by the curtesy initiate may sue alone for the possession of his wife's land, and for damages for withhold
*. At common law the husband's interest in the estates of which the wife was possessed at the time of the marriage, was a freehold, he alone having the right of entry, and the present right of clusive enjoyment. The wife could not recover the lands from a stranger, even though her husband was joined as defendant, and disclaimed title and admitted the wife's right to possession."
To the same effect, also, is the case of Clark v. Clark, 20 Ohio State Reports, 128, where it said, that during coverture the right of possession of the wife's fee simple lands is in the husband, and the wife cannot maintain an action to recover the same from a stranger.
Wilson v. Arentz, et al., 70 N. C. 670, is also a case in point. In that State it seems they have a statute substantially like $ 3295, Rev. of —79, and it was there held that, “A tenant by the curtesy initiate has a right to sue alone for the possession of his wife's land, and for damages for the detention of it, *
and the fact that the Act of 1848 (Battle's Rev. Code $ 33) deprives him of the power to lease the land without the consent of his wife, will not prevent his recovery of the land by action, under C. C.P., without joining his wife as a party."
To the same effect is the case of Bledsoe v. Sims, 53 Mo. 305, and Kanaga v. St. Louis, L. & W. R. Co. 76 Mo. 207; See also Cooper v. Ord, 60 Mo. 421, 430.
In the North Carolina case of Wilson v. Arentz, et al., supra, it is said, that “For an injury done
to the inheritance, his wife must have joined in the suit; for a trespass to the possession, he could sue alone."
This, I apprehend, is the true criterion for determining, when the wife is, or not, a necessary or proper party to a suit affecting the wife's fee simple lands.
The objection, that the construction here given § 3222 of the statute of limitations, renders the same nugatory and senseless, so far as a married woman is concerned, is not, we think, well taken. A married woman during coverture may have a right of action for an injury done to the inheritance or integrity of her fee simple lands; or to the possession of her sole and separate estate in lands from which the husband's marital rights are excluded, just as any other person, and these rights of action of hers and others of a like character, are just as much within the operation of that section as any other of the parties therein named. Whenever and wherever she has a right of action during coverture, she is as fully within the operation of that section-24 years and allas any other party therein mentioned, and equally barred, whenever they are barred. This objection therefore, is without force or merit, and is fully met and refuted in the dissenting opinion of Judge Hough in the case of Valle v. Obenhause, 62 Mo. 81, and the argument need not be here restated.
The contention and point in judgment in this case is, that the wife during coverture, by reason of the husband's curtesy initiate, has no right of action, and that after her death her heir had none by reason of the husband's curtesy consummate prior to his death, and for these reasons the plaintiffs are not barred by the statute of limitations.
Adopting the views expressed in the dissenting opinion of Judge Hough in the case of Valle v. Obenhause, 62 Mo. 81, and of the authorities there cited; as well as in consideration of the views expressed in the subsequent decisions of this court hereinbefore mentioned, and the additional comments, reasons and authorities herein given and cited, we hold, that the ruling of the court in that case is not the correct one, and its authority in that particular is hereby overruled.
This leads to the conclusion that, upon the facts of this case, the plaintiffs herein are not barred of their right of action, and for these reasons the judgment of the St. Louis Court of Appeals is reversed and the cause remanded for further proceeding in conformity to the views here expressed. All concur, except Sherwood, J., who dissents.
sideration of purely equitable rights, courts of equity act in analogy to statutes of limitation, but only feel bound to apply such statutes in cases where their ju. risdiction is concurrent with that of courts of law, and will not follow them when manifest wrong would be produced thereby. When the statute once begins to run, no subsequent disability will stop it.5 When it is provided that the statute shall not run in case of certain disabilities, it is held, that the disability must have existed when the right of action accrued; a party cannot avail himself of a succession of disabilities. Such statutes generally are considered to have only a prospective operation in the absence of any provisions to the contrary.7 Statutes, extending the time for bringing suits, will not be construed to revive actions already barred.8 It has been held, that wben a cause of action has been barred by the statute, it cannot be revived by statute nor by constitutional amendment. In a late well considered case it was held, that the bar could be removed as to a debt, but not as to a claim for specific property.10 Such statutes must be so construed as to effect the legislative intent, 11 which must not be evaded by construction.12 If the language is clear and free from ambiguity, it should be applied as expressed, although the consequences in a particular case should appear harsh; 13 but when the law is doubtful, it should be construed in favor of imperiled rights rather than prejudicially thcreto.14 The disability clauses in such statutes exempt the disabled from the necessity of suing, still they are at liberty to sue if they wish.15 The decision of the court in the principal case settles the construction of the Missouri law, but does it reflect the legislative intent? They say that $ 3219 only applies to cases where there is a present existing right to commence an action or make an entry. This present existing right must refer to the period of the beginning of the adverse possession or disseizin. If not so, in what sense is the term used, and how can the section be read in connection with any other meaning? They say subsequently, quoting the language of Harris v. Ross, that $ 3222 also only applies to persons who have a present right of action or of entry, and $ 3224 has no application to the heir of a person not so entitled. They also say there,that the statute deals only with rights of action, and where there is no such right nosbar cîn exist. In the principal case
2. Hall v. Russell, 3 Sawy. 506.
5. Harris v. McGovern, 99 U. S. 161; Rogers v. Hillhonse, 3 Conn., 398; Daniel v. Dar, 51 Ala., 43 : ; Swearingen v. Robert on, 39 Wis., 462; Mercer v. Selden, 1 How. (U. S.) 37; Tracy v. Atherton, 36 Vt. 503.
6. Hogan v. Hurtz, 94 U. S. 773; Butler v. Howe, 13 Me., 397; Keeton v. Keeton, 20 Mo., 530; Fritz v. Joiner, 54 Ill., 101; Reimer v. Stuber, 20 Pa St. 458.
7. Ward v. Kilts, 12 Wend. 137; Central Bank v. Solo mon, 20 Ga., 408; Pitman v. Bump, 5 Oreg, 17; Stine v. Bennett, 13 Minn. 163; Martin V. State, 24 Tex. 61; Thompson v. Reid, 41 Iowa 48.
8. Robb v. Harlan, 7 Pa. St. 292; Garfield v, Bemis, Allen 445; Wires v. Farr, 25 Vt., 41.
9. Girdner v. Stephens, l Heisk, 280; Yancy v. Yancy, 5 Heisk, 353 ; Rockport v. Walden, 54 N. H., 167.
10. Campbeil v. Hott, 115 U. S. 620.
11. Gorman v. Judge of Newaygo Circuit, 27 Mich., 138; Gautier v. Franklin, 1 Tex. 732.
12. U. S. v. Wilder, 13 Wall., 254; Roberts v. Pillow, Hempst., 624.
13. Fisher v. Harnden, 1 Paine (C. C,) 55; Arrowsmith v. Durell, 21 La. An. 295; Amy v. City of Watertown, 29 Fed. R. 418.
14. Elder v. Bradley 2 Sneed, 247.
15. Piggott v. Rush, 4 Ad. & El. 912; Milliken v. Marlin, 66 Ill., 13; Chandler v. Vilett 2, Saund., 120.
NOTE.-Statutes of Limitation formerly were not favorably regarded, but this is no longer the case, for they are recognized to be statutes of repose.' In con
1. McCluny v. Silliman, 3 Pet., 270; U. S. v. Wiley, 11 Wall, 508; Phillip v. Pope, 10 B. Mon. 163; McCarthy v. White, 21 Cal. 495; Dickinson v. McCamy, 5 Ga. 486; Elder v. Dyer, 26 Kan., 604.