Shaw v. Nicholay

Scott, Judge, 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 [108] she may have caused them by passing a title which was after-wards defeated; that the creditors, having a right to disregard the compromise, are not in anywise affected by it, and can not claim any advantage under it; that the title she passed under the order of sale made by the probate court for the payment of debts, was the title her deceased husband had at the time of his death, and her act in passing that title did not in any way affect or impair the title she acquired from the Schools for the benefit of those claiming under her deed as executrix conveying the land under the order of the court for the payment of debts. 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 [109] tenant in possession at the death of L. B. Shaw became the tenant of Octavia Shaw. On the 10th of April, 1848, Gordon, -under the statutory power of sale, became the purchaser of L. B. Shaw’s title. That deed was executed by Octavia Shaw as the executrix of her husband, and conveyed all the right, title and interest which L. B. Shaw had in the lot in controversy at the time of his death. Although the deed to Gordon related back to the time of L. B. Shaw’s death, so as to defeat all mesne conveyances,' yet that deed conveyed title only from the time of its execution. From that time he had a right to the possession and might have maintained an ejectment; 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 [110] with the previous possession of the husband ? This argument is based on the rule that, in order to make a continuous adverse possession in successive occupants, it is necessary that there should be some privity between them. When one occupant enters after another, it must be with the consent of his predecessor, indicated by contract or by an act of the law passing the possession from one to another, in order to make a continuous adverse possession. (Chouquette v. Barada, 21 Mo. 336.) But the answer to the argument is, that possession was the only title of the husband; that possession is an interest in land, is evidence of a fee, and, if it endures for a sufficient length of time without interruption, will be a perfect title. Though ordinarily, when there are two titles in one person, the possession will connect itself with the paramount title, yet Mrs. Shaw, under the circumstances, could do no act by which the rights of the creditors would be prejudiced. The law would not suffer her to do an act to defeat an estate provided for the payment of debts, which would be done by annexing her possession as devisee to the title which she acquired from the schools. If the Schools had brought this action, they would have been barred. A purchaser under the power holding in privity with the testator Shaw, his devisees and assigns, his possession, and that of all those claiming under his title, would have enured to Gordon or his heirs; and Mrs. Shaw, by taking the title of the Schools, could not deprive them of this advantage by claiming that her right to possession as devisee annexed itself to the title she acquired from them, and thus break that continuity of possession under L. B. Shaw’s title necessary to make it available to Gordon and his heirs as a defence under the statute of limitations. 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 de111 fence. We do not see bow the deed to Gordon could create an estoppel at law, as it only professes to convey all the right, title and interest of L. B. Shaw at the time of his death. The facts of the case, set forth in answer as an equitable defence, might create an estoppel in pais, or an equitable estoppel. The application of the executors to the probate court for leave to compromise is a mere fact not influencing the case in its present aspect. -The probate court had no jurisdiction to authorize the executor to make a compromise. (Lucas v. Bompart, 21 Mo. 598.) Though such an application, if proved as a fact, would have its influenee in an equitable view of the subject, especially as. it was followed by the further -fact that the executors-'only sold so much of the land as was obtained by the compromise. In an equitable view of the subject, the failure of the plaintiff to disclose the information that the title she held under the Schools was a subsisting pretension, although her deed may have been recorded, would not be without its weight. 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. The other judges concur.