Valle v. Obenhause

Napton, Judge, delivered the opinion of the court. This is an action of ejectment to recover an undivided sixth of an outlot or common field lot in Carondelet, confirmed by the act of 29th of April, 1816, to Delor de Neget’s representatives. The plaintiff’s interest is derived from Angelique Pigeon who was a daughter of Delor de Ueget. Angelique was married to Hyacynth Pigeon in the spring of 1815, and had several children, the oldest of whom was probably born within the first year of their marriage. Hyacynth Pigeon died just before the commencement of this suit, over a hundred years old, and Angelique survived him. The confirmation to Delor de Neget’s representatives was in April, 1816, upon which a patent issued in 1872. In 1824, and perhaps earlier, the defendants took possession of the land in controversy, and have held possession ever since. How that possession originated is not material; but that such possession was adverse and continued nearly 50 years before suit, is conceded. The defendants introduced some evidence to show a confirmation under the act of 1812, and in regard to this evidence, various points arose; but as this cotirt has decided, in Langlois vs. Crawford (59 Mo., 456), that a confirmation under the Act of 1816, is equivalent to a patent, it is useless to state thesé points. The only question in the case arises on the instruction given for defendants, which is, that if the jury believe from the evidence that Pelagie Berthold, by her tenants, has been constantly in possession of the land described in the answer, for the period of twenty-four years, she the said Pelagie claiming to be the owner of said land, they must find for the de-fen dan ts. This presents the only important question in the case, and being a new one in regard to the proper construction of our statute of limitations, it has been carefully considered. The fourth section of the statute of limitations of February 2d, 1847, gives to minors, prisoners and married women three — 85 — years after these disabilities are removed, and does not count the period of disability as any part of the ten years, which is the limit to persons laboring under no disability’-. It then provides that after twenty-four years after the cause of action or right of entry shall have accrued there is a total bar. And the question is, when does a cause of aetion or right of entry acerue to a married woman, to whom a title descends or accrues, on account of a disseizin or adverse possession during the lives of both husband and wife. It is insisted on the one hand, that the wife has a mere reversion b}’ reason of the tenancy by the curtesy of the husband, or by reason of his marital right to the possession, during her life, and therefore her right of aetion never accrues till the death of her husband ; and it is clear that, if a wife has a mere reversion, the statutedoes not bar her, until her reversion vests by the death of her husband, since in such cases her right of aetion only commences on the termination of the particular estate. 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. But where no such estate has been created, the question is whether the husband’s marital right or his interest as tenant by the curtesy initiate, so completely divests her of all right of entry, as to prevent the operation of the statute, until the husband’s death. It is obvious that, if the statute is so construed, it is a mere brutum f 'ulmén. It results in the conclusion that a married woman cannot have a right of aetion or entry, and if not, it was useless to provide for a disability’ which cannot occur. The disability was an imaginary one, not a real one. But all of our statutes from 1825 down to the present time, clearly imply that a right of aetion may exist in a married woman. The husband is understood to be jointly seized of his wife’s estate, and during the existence of the coverture he is not tenant by the curtesy, but only seized by right of Ms wife, and if there be a disseizin, it is of the joint estate, — 86 — and they must jointly bring an action to recover the possession. Under this view of the title of husband and wife in lands of the wife, the statute of limitations will begin to run from the date of the disseizin against both. Mr. Claney, in his work on this subject, states very clearly the interest which a husband has in .the inheritance of his wife. “He is not solely seized, but jointly with her. The interest which the husband acquires by marriage, in the estate of inheritance of his wife, is most correctly stated in the technical phraseology of the common law pleaders, to-wit: ‘that husband and wife are jointly seized in right of the wife.’ If the husband pleads that he alone is seized in his demesne as a freehold, or as of fee, in right of his wife, it will be bad on special demurrer.” And to support this, the author cited 1 William Saunders, 253; Douglas, 329, and 2 Wm. Saunders, 285. The authorities are the same referred to by the Supreme Court of Massachusetts in the case of Melvin vs. Proprietors of Locks and Canals, (16 Pick., 167) in which this question is carefully examined. In that case the court say that “ Melvin and his wife were jointly seized and disseized, and either of them or both might enter on the disseizor. That she was sub potest ate mri does not prevent the right of entry from accruing to her ; otherwise no right of entry could descend or accrue to a feme covert, and the saving clauses in the several statutes of limitation in favor of femes covert, would be useless and senseless.” The same conclusion is reached by the Supreme Court of Tennessee in Guion vs. Anderson, (8 Humph., 321), and by the Supreme Court of Maine, in Mellus vs. Snowman, (21 Me., 205.) In Foster vs. Marshall, (22 N. H., 191), and in Lessee of Thompson’s Heirs vs. Green, (1 Ohio, 221), the conclusion was exactly opposite to the conclusion of the Massachusetts court and of the court in Tennessee. And the reasoning of the courts last named is based on the hypothesis, that a wife has only a reversion in an estate which accrues to her during — 87 — coverture ; that the husband has a life estate by right of the marriage, or an estate for his own life, if he has children, and consequently her estate is a mere reversion, and any ouster or disseizin only affects the husband’s right of possession, and her right of action never accrues till the death of her husband. It is conceded in the New Hampshire case, that where the husband has acquired no estate by curtesy and is merely seized jure mariti the decision in the case of Melvin vs. Canal Prop, is right. But it is difficult to see any distinction between the husband’s right after issue born and his right jure mariti. In either case he may create a particular estate, which would prevent the wife from suing until its determination. Mr. Clancy observes that “ although the husband is said to be jointly seized with his wife, and not solely, in her right, it is not to be inferred that he is incapable of creating an estate of freehold in her inheritance, without her being a party to the conveyance. For instance, he may alone, during the coverture, create by'deed an estate of freehold, and thereby make a good tenant to the praecipe, without the wife joining him in a fine. So at the common law, a husband seized in right of his wife, might have made a discontinuance of the wife’s estate, and thus barred her right of entry, which proves that he had the power of conveying the freehold without her consent-during his life.” The case now before this court is not one where the husband had made any conveyance. If the husband’s power to create a particular estate either jure mariti, or by reason of his being tenant by the curtesy initiate, converts the wife’s estate into a reversion, then her right of action never accrues dining his life, and our statutes in relation to the disabilities of the .wife are senseless and unmeaning. But our statutes assume that the estate of the wife is a present interest, which she, through her husband, has a right to assert, and which, if she fails to assert for twenty-four years, may be barred. If the marriage created a disability to sue, then this proviso in the act has no meaning. The right of a married woman — 88 — to sue for her land could not exist duHng coverture, since the marital right of-the husband, or his tenancy by the curtesy, invests him with a life estate, and her right never arises until the death of her husband. But the statute says, that after twenty-four years after the cause of action or right of entry shall have accrued to a married woman, her right of action is barred. The notion that a wife has a mere reversion in an estate, descending or accruing to her because her husband may discontinue it, or may otherwise dispose of it during his or her life, seems to be a mere unfounded assumption, and is the foundation upon which the decisions in New Hampshire and Ohio have been predicated. And a very unguarded, expression of Oh. Kent, in his commentaries seems to have contributed to this series of adjudications in New York, Ohio and Vermont. “If the wife be seized,” it is stated in 2 Kent Com., ISO, “ of an estate of inheritance in land, during the marriage, the husband becomes seized of the freehold juré uxoris. and he takes the rents and profits during their joint lives. It is a freehold estate in the husband, since it must continue during their joint livés, and it may by possibility last during his life. It will be an estate in him for his own life, if he dies before his wife, and, in that event, she takes the estate again in her own right.” By referring to the statement of Mr. Clancy, copied heretofore, as to the character of the estate which a husband has in his wife’s land, the extract from the commentaries of Ch. Kent, whose general accuracy is beyond question, is seen at once to be not sufficiently accurate at least in regard to the question now under consideration. For various purposes and taken in a general sense, the observation of Ch. Kent ■was perhaps sufficiently correct, but it is calculated to mislead, if it was intended to assert-that a wife’s estate in her own lands, was a mere reversion during the life of her husband. That the husband was seized jointly with his wife was according to the authorities cited by the common law, and that — 89 — it was so understood by the distinguished lawyer who drew up our statute of limitations of 1825, as well as by the equally eminent one who drew up the act of 1847, commonly called the Lucas Law, is, we think, quite clear. The judgment must be affirmed. Judges Wagner and Sherwood concur. Judge Tories absent. Judge Hough dissenting from the view here taken of the statute of limitations as applicable to this case. Per Sherwood, J. The term “disability” necessarily presupposes an existing right which has been disabled. In order for the right to be disabled, it must have descended or accrued. If it has descended or accrued then by the express proviso of the statute, twenty-four years, even in the case of a married woman, makes a complete bar. The position of the plaintiff, as it seems to me, involves the legal solecism that the disability preserves the right during coverture, and at the same time prevents it from accruing until after coverture. Under the construction given by my associates with whom I concur, the statute will operate, as I believe, it was designed to operate, with uniformity, and exclude all alike, whether infants, femes covert, insane persons, etc., after the lapse of twenty-four years from the date when the right,or title shall have first descended or accrued. Any other construction than this would, in my opinion, completely nullify the evident object of the statute, and render many of its carefully worded expressions utterly devoid of meaning. The rudimentary and familiar principle, which should always prevail in construing a statute, is that force and effect should be, if possible, given to every word employed by the law makers, and that the whole statute should be made to stand, without alteration or obliteration. This, I think, has been done in the construction in which I concur. The reason of the enactment was plain ; it was intended to operate after the lapse of a fixed and determinate period, as all statutes of limitation are, as a statute of absolute repose. — 90 — But were a reason wholly wanting, this is a case where we are dealing with the positive prescriptions of the written law where the will of the legislature stands for the reason of its enactment.