Majors v. Cryts

VALLIANT, J. Ejectment for an undivided one-fourth of lot 2 in northeast quarter of section 2, township 25, range 9, Stoddard county. [388] There is very little, if any, dispute about the facts. Plaintiffs inherited the interest sued for from their mother and are entitled to recover unless their right of action is barred by the Statutes of Limitations, and it is barred unless their father, who survived their mother, had an estate by the curtesy in the land which prevented the running of the statute during his lifetime. Eebecca J. McMillan, who was the plaintiffs’ grandmother, is the common source of title; she died in June, 1864, leaving her husband, John McMillan, and their six children, of whom the plaintiffs ’ mother, Mary Ann McMillan, was one. Mary Ann married P. P. W. Majors, plaintiffs’ father, and died in November, 1864, leaving her surviving her husband and three children, who are the plaintiffs in this suit. John McMillan died in 1889 or 1890. P. P. W. Majors died in 1907. Two of the six children of Eebecca J. McMillan died unmarried and without issue. In 1881 Daniel W. Horton obtained a deed purporting to convey all of the lot 2 above mentioned, signed by John McMillan and the three then surviving children of Eebecca, and signed also by P. P. W. Majors; Horton went into possession under the deed, which was duly recorded. The title he acquired by that deed has since passed by mesne conveyances to the defendants, and the possession taken by Horton in 1881 has continued in him and his successors in his title until the present time. Mary Aun having died during the lifetime of her father, John McMillan, therefore before the termination of his estate by the curtesy, was never in the actual possession of the interest she inherited from her mother, and. the court held that for that reason her husband acquired no estate by the curtesy; that the Statutes of Limitations began to run against the plaintiffs at the death of John McMillan in 1889 or 1890; [389] this suit was begun in 1907. The judgment was for the defendants and the plaintiffs appeal. I. There is no question but that John McMillan’s estate by the curtesy began at the death of his wife in 1864, and continued until his own death in 1889 or 1890. The title in fee descended to the children of Rebecca at her death in 1864, and they would then have been entitled to immediate actual possession if it had not been for the curtesy estate of their father, but that estate intervening excluded them from actual possession o.r right of possession until his death, which did not occur until after the death of plaintiffs’ mother. The question is did P. P. W. Majors, plaintiffs’ father, ever have an estate by the curtesy in the land sued for? If he did have such an estate it continued until his death in 1907, and the plaintiffs are not barred; if he did not, the statute began to run against them on the death of their grandfather and their suit is barred. Under the common law the essentials to an estate by the curtesy were four, marriage, seizin of the wife, birth of child capable of inheriting, and death of the wife. The seizin required by the common law was actual seizin, but this court in an early case decided that actual seizin was not necessary. [Reaume v. Chambers, 22 Mo. 36, l. c. 54.] In that case the court per Scott, J., said: “As to the question whether actual seizin of the wife’s land is necessary to entitle the husband to curtesy, we are of the opinion that such an idea never prevailed here. Whatever may be the common law on the subject, the circumstances of the country demand a modification of the rule. Titles to land conferred by the United States were supposed to give seizin in deed to purchasers.” In that case, as we understand it, the wife, though never having been in actual possession, had, during [390] coverture, the right to immediate possession and that was held to be sufficient. That has ever since been the doctrine of this court. In Washburn on Real Property, vol. 3, sec. 1953 (6 Ed.), the author says: “There is a seizin in deed and a seizin in law, and the difference between the two is, that in one ease an actual possession has been taken and in the other there is a right like that of an heir upon descent from his ancestor, while the possession is vacant, before he has made an actual entry.” Seizin in law as' there defined does not mean that there is a constructive possession in the heir when there is an estate in another person intervening to postpone his right of entry; it means a right of immediate entry. 'Seizin of the wife is essential to the husband’s right of curtesy, but under the decisions of this court it may be either seizin in deed or seizin in law. [Reaume v. Chambers, 22 Mo. 36; Cochran v. Thomas, 131 Mo. 258; Martin v. Trail, 142 Mo. 85; Dozier v. Toalson, 180 Mo. 546.] And that seems to be the general rule in this country. [1 Washburn on Real Property (6 Ed ), sec. 328.] In Cochran v. Thomas, there is an expression that implies that actual possession by the wife is necessary, but that dictum was corrected in Martin v. Trail. Appellants present the point that John McMillan and his children were tenants in common, that his possession was their possession, and that therefore their mother through him was in possession. Tenants in common have, inter sese, a common right of possession, a common right to rents and profits, and if one takes more than his share of the rents and profits he may be held to account to his cotenant. The possession of a tenant by the curtesy is exclusive, the .rents and profits are all his as long as he lives, there is no element of tenancy in common in his possession. [391] There can he no estate hy the curtesy in the husband when there has been no seizin in the wife, either in deed or in law. We conclude therefore that in the case at bar there was neither seizin in deed nor seizin in law in the plaintiffs’ mother; she having died before her right of possession accrued, therefore her husband did not have an estate by the curtesy, and the plaintiffs’ right of action accrued at the death of their grandfather in 1890, and was barred by the Statute of limitations when this suit was begun. II. The judgment goes farther than a judgment at law in ejectment should go. The judgment is that the plaintiffs take nothing by their writ and the defendants go without day and recover their costs; so far it is right, and should have gone no farther, but it did go on to decree no title in plaintiffs and full title in defendants. This was doubtless because there were in the third paragraph of the answer statements to the effect that the deed to Horton, under whom defendants claim, which was executed by the other heirs and parties in interest, purported to convey the title of plaintiffs and that those parties accounted to plaintiffs for their share of the purchase money and plaintiffs accepted it. But there was not a word of proof offered to sustain those allegations; the sole question litigated was whether plaintiffs’ right of action was barred by the Statutes of Limitations. We do not deem this error of any serious consequence, because the title of defendants by adverse possession is so clearly established that it puts the case at rest. The judgment is affirmed. All concur: