Hubbard v. Keen

*33 WALKER, J. This is a suit brought June, 1920, under Section 1970, Revised Statutes 1919, to quiet title to certain land in Greene County, and in ejectment. Upon a trial by the court, there was a judgment finding that the title was in the defendants and denying the plaintiffs’ right of recovery. Prom this judgment, they have appealed. The petition in each of the causes of action pleaded embodies the conventional allegations required by the statute and recognized by our procedure. *34 The answer denies plaintiffs’ right to recover and alleg’es that the defendants own the land and are in possession of the same; that Joseph Powell was the common source of title; that defendants claim title through Martha E. Powell; that plaintiff's claim through their mother, Emily Hubbard, who, in conveying the land with her husband, Walter D. Hubbard, in March, 1868, failed to be examined and to acknowledge the deed separate and apart from her husband; that the purpose of this deed was to exchange the land for certain lands then owned by Martha E. Powell, which lands have ever since been in the possession of the heirs of Walter D. and Emily Hubbard; that Martha E. Powell and her grantees, including the defendants, have ever since said conveyance been in the possession under claim of ownership of the land now sued for; that since that time the plaintiffs have stood by and have permitted Martha E. Powell and her grantees, including the defendants, to pay taxes and improve the property and to permit same to be sold and conveyed a number of times, and have always disclaimed ownership therein and have ratified and confirmed their mother Emily Hubbard’s deed and that of her husband by a deed made by plaintiffs and their father Walter D. Hubbard in November, 1898; that plaintiffs are estopped and barred by the Statute of Limitations; and that they have failed to file any-notice claiming title to said lands as required by the act approved April 10, 1917 (Laws 1917, p. 204), and are barred by reason of said failure. Defendants pray that plaintiff's be enjoined from taking- possession of said land and that they be required to specifically perform the contract made between their mother and Martha E. Powell for the exchange of the lands or that they restore tire eighty acres of land and four hundred dollars in rqoney received at the time of said exchange of lands between Martha E. Powell and their mother, Emily Hubbard; that defendants be adjudged to be the owners of the land sued for and that *35 plaintiffs be barred and estopped from claiming any interest therein. A reply was filed bnt it is not preserved. Plaintiffs are the sons and sole heirs of Emily Hubbard, who died in 1916, and of Walter D. Hubbard, her husband, who died in 1912. When this suit was filed, the plaintiffs were each over fifty years of ag;e. Their mother was the daughter of Joseph Powell, who died testate in 1847, seized of the property in question and other lands which he devised to his wife for life and in equal shares in remainder in fee to his children Emily, Mary, Maria and Joseph. The testator’s widow died prior to 1866, and his heirs were all of full age and married before any of the deeds herein mentioned were made. These deeds were as follows: December 8, 1866, two of the heirs, Joseph and Mary, the latter married to M. J. Hubble, who joined in the deed, conveyed their undivided interest to Walter D. Hubbard, the husband of Emily, and to Nathan P. Murphy, the husband of Maria; March 12, 1868, Maria and her husband), Nathan P. Murphy, conveyed their undivided interest to Emily Hubbard. March 12, 1868, Walter D. Hubbard and his wife Emily conveyed said land by warranty deed to Martha E. Powell, the wife of Joseph Powell. ' The acknowledgment of Emily Hubbard failed to recite that she was examined and acknowledged the deed separate and apart from her husband. November 18, 1868, Joseph Powell and his sister Mary conveyed their undivided interest to Maria Murphy and Emily Hubbard, reciting that their deed was made to correct a former deed (not preserved in the record) of .the same land to the same parties. When the conveyance by Eimily Hubbard and her husband was made to Martha E. Powell, Emily owned one-half of the land — one-fourth under her father’s will and one-fourth under the deed from Nathan P. Murphy to her; Walter D. Hubbard, her husband, owned a one-fourth interest in the land under the deed of December 8, 1866, made to him and Nathan P. Murphy; Maria Murphy owned a one-fourth interest under her *36 father’s will, which she had failed.to convey on account of a defectively executed deed. After receiving- the conveyance of March 12, 1868, from plaintiffs’ mother and father, Martha E. Powell and the parties claiming under her took possession of the land, paid taxes on it, improved it, and it was sold and conveyed by them and others who acquired title, thereto from time to time, the defendants herein being the present title owners and now in possession of the property. Their title was derived from W. E. Freeman a few years before this suit was filed. Prior thereto W. E. Freeman had obtained a quitclaim deed from Maria Wright, formerly Maria Murphy, to her one-fourth interest in the land. The interest thus acquired, as well as that conveyed by Walter D. Hubbard, is held by defendants independent of the claim of plaintiffs. In 1898 Walter D. Hubbard and the plaintiffs conveyed one hundred and ten acres’’of land, not including the five acres here in dispute, to Milton A. and James W. McCluer for a consideration of one dollar. Their deed contained the following recital: This deed is made to ratify and confirm the deed heretofore made by Walter U. Hubbard and his wife to Martha E. Powell, March 13, 1868.” Emily Hubbard, the mother, became insane in 1884, and so continued; the remainder of her life being spent in an asylum, where she died in 1916. The plaintiff 'Charles A. Hubbard testified that he had always lived within two miles of the land and had never claimed to own any interest in it. He presumed that the land was being sold. He did" not tell the defendant’s grantor, Freeman, that he claimed no interest in the land, but did tell Freeman that he would procure a quitclaim deed to defendant Keen for nothing. The other plaintiff, Walter P. Hubbard, lived in St. Louis. Freeman sent fifty dollars to him for a quitclaim deed, but he refused to malm it and returned the money. Witness said he knew he had an interest in the land his mother owned, but did not know the land. Freeman testified that he had a talk with Charles A. Hubbard in *37 April, 1920; that the latter then asserted no title to the land. The defendant Keen testified that after he bought the land, he had a talk with Charles A. Hubbard and the latter told him he made no claim to it. Defendants, knew nothing about the deed of ratification made by Walter D. Hubbard and his sons in 1898. Epitomizing the facts relative to the' title to this land as disclosed by the foregoing* statement, we find that at the time Emily and Walter D. Hubbard executed the deed to Maltha iEi. Powell, dated March 12, 1868, in controversy in this case, the legal title to the land therein described was held as follows: Emily Hubbard a two-fourths interest; Walter D. Hubbard a one-fourth interest, and Maria L, Murphy a one-fourth interest. Emily Hubbard acquired her interest as follows *. A one-fourth under the will of her father, Joseph Powell, and a one-fourth by the deed from Maria L. and Nathan P. Murphy, by the deed of March 12, 1868. This deed conveyed only the interest of Nathan P. Murphy, but failed to convey, on account of a defective acknowledgment, the one-fourth interest of his wife, Maria L. Murphy. Walter D. Hubbard acquired a one-fourth interest by the deed from Martin J. Hubble and Mary J. Hubble, his wife, and Joseph M. Powell and Martha E. Powell, his wife, to Nathan P. Murphy and Walter D. Hubbard, dated December, 1866. Defendants, through mesne conveyances, their immediate grantor being W. E. Freeman, acquired the interest of W. D. Hubbard. Maria L. Murphy acquired a one-fourth interest by devise from her father, Joseph Powell. Defendants acquired the interest of Maria L. Murphy by deed from her under the name of Maria L. White to W. E. Freeman, their grantor, June 17,1913. At the close of the testimony, the plaintiffs asked an instruction as follows: ‘‘ The court declares the law tQ be that' the act of the General Assembly approved April 10, 1917 (Laws 1917, *38 page 204), does not apply to the facts in evidence in this cause.” This instruction was refused, to which plaintiff excepted. No other instructions were asked or given, and the court’s finding and judgment was.as stated in favor of the defendants. I. The doctrine of laches as authorized in the invoking vof estoppel in pais is urged in defense of this action. Emily Hubbard, the source of plaintiffs’ title, was under coverture at the time she acquired an interest in the land. Her llus^an^> aside from his title in fee to a one-fourth interest therein, was, under his marital rights at common law, entitled to the possession of same and this right became vested in having been acquired prior to the adoption of the Married Women’s Act in 1889. This act did not divest him of the right thus acquired, and during its existence the wife was protected from the necessity of bringing a possessory action to recover by reason of his tenure. Her failure to sue, therefore, cannot furnish a basis for the defense of laches as against the plaintiffs. In short, as ruled in numerous cases, estoppel in pais cannot be imputed to a woman who rests under the disability of coverture. While she may have been entitled to bring a possessory action after the adoption of the Married Women’s Act, or one to determine title under what is now Section 1970, Revised Statutes 1919', after its adoption in 1897 (Laws 1897, p. 74), neither proceeding was necessary to the preservation of her right to assert a claim to the land. The protection thus afforded her under its common -law aspect, without reference to statutes which we will discuss later, was sufficient for her protection. No duty developed upon the plaintiffs as her heirs. Allegations in the answer, therefore, as to plaintiffs ’ knowledge of defendants ’ possession of the land, its frequent transfers, with the consequent changes of owners and the improvements made thereon by them, will, in equity, avail nothing as a defense to plaintiffs’ right of action. [Mathis v. *39 Melton, 238 S. W. (Mo.) 806; Jones v. Himmelberger-Harrison Lbr. Co., 223 S. W. (Mo.) 63; Powell v. Bowen, 279 Mo. 280; Lewis v. Barnes, 272 Mo. 377; Same Case, 2nd appeal, 220 S. W. 487.] II. Aside from'the coverture of Emily Hubbard as affecting the rights of plaintiffs in equity, a consideration of the Statutes of Limitations applicable under the facts is vital to the determination of the matter at issue. Except to persons under certain disabilities, the right of action to recover real estate is limited to ^ ye&rg (ge(J_ 1305? R g> 1919). To those under either of such disabilities, the limitation is extended to twenty-four years under Section 1307, Revised Statutes 1919, which is as follows: “If any person entitled to commence any action in this article specified or to make any entry be, at the time such right or title shall first descend or accrue, either within the age of twenty-one years, or insane, or imprisoned on any criminal charge or in execution upon some conviction of a criminal offense for any time less than life, 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; of 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 havé accrued.” A subsequent section (Sec. 1310, R. S. 1919)' defines the rights of the heirs or those claiming from one who dies under either of the disabilities designated in Section 1307. It is asLollows: “If any person entitled to commence such action or to make such entry die during the Continuance of any *40 disability specified in'Section 1307, and no determination or judgment be had of the title, right or 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. ’ ’ Adverse possession will start the running of the .statute against one under disability. Such possession begins with the entry into the possession of the land by' another than the person under disability or one claiming from such person. Upon the beginning of the adverse possession., the right of action of the person under disability accrues. [Faris v. Moore, 256 Mo. l. c. 131; Boyd v. Weber, 193 Pa. St. 651.] One - of the disabilities designated in what is now Section 1307 is coverture. In 1917 (Laws 1917, p. 205) the words “or'a married woman” were by amendment omitted from the section. Emily Hubbard, who was under coverture died in 1916- and the rights of those claiming through her are to be determined under the law as then existing. Coverture is, therefore, a disability here entitled to consideration. It will be recalled that the deed upon which this controversy is based was made in 1868 by Emily Hubbard and her husband. The marriage relation continued until 1912, when the husband died. A period of forty-four years in duration, therefore, elapsed from the time the wife’s right of action accrued in 1868; when Martha E. Powell took possession of the land, and the death of Walter D. Hubbard. This suit was not brought until June 8, 1920; eight years after Emily Hubbard became discovert and four years after her death in 1916. These facts are ample to bar plaintiffs’ right of recovery under the limitations of Sections 1307 and 1310, supra, on the ground of the coverture of their mother, the source of their title. If, however, the disability of coverture be left out of consideration, the record discloses that Emily Hub *41 bard became insane in 1884 and so continued until her death in 1916, or for a. period of thirty-two years. It was more than four years after her death that this action was commenced. Not having availed themselves of the time granted by the statutes, plaintiffs’ right of recovery is barred. This conclusion does not militate against our ruling in Powell v. Bowen, 279 Mo. l. c. 294, the suit therein having been brought within the time limited by the statutes here under review. III. Error is urged in the refusal of the trial court to give an instruction asked by plaintiffs at the close of the testimony declaring that the two-years’ Statute of Limitations defined in Section 1312, Revised Statutes 1919, was not applicable un- , , , -, der the evidence, and, hence, could not be considered in the determination of the matter at issue. While this section was specifically pleaded in the answer, its construction is not necessary to a determination of plaintiffs’ right of action in view of the bar of the statutes (Secs. 1307 and 1310, supra) above discussed. The judgment of the trial court should be affirmed, and it is so ordered. Woodson, G. J., White and David E. Blair, JJ., concur; Graves and James T. Blair, JJ., concur in result; Ragland, J., not sitting.