Powell v. Bowen

FARIS, J. This is an action to determine interest in a certain parcel of real estate situate in Pemiscot County. Upon the trial helow defendants had judgment, and plaintiffs, after the usual motions, appealed. The facts are few and simple. Plaintiff Belle Powell married one John W. Powell on the 24th day of March, 1870, and ever since has been and was at the time of the bringing of this suit, on the 4th day of May, 1915 a married woman. While under all the disabilities of coverture, plaintiff Belle Powell (hereinafter for brevity, except where otherwise stated, referred to simply as “plaintiff”) acquired title to the land in dispute. On the 15th day of September, 1882, plaintiff, together with her husband attempted to convey this land by warranty deed to one Mark T. Leonard. The form of deed used in this attempted conveyance was not the general form of warranty deed in common use at that time in the State of Missouri, but seemingly this instrument followed an Indiana form. No point is made, however, upon any portion of this instrument, except the acknowledgment appended thereto which is alleged to be defective. This acknowledgment constitutes the sole ground and raison d’etre of this action. Omitting venue, signature and seal of the officer taking the same, all of which are conventional and are not attacked, the acknowledgment to this deed reads thus: “Before me Fred P. Leonard, Notary Public in and for said county, this 15th day of September, 1882, personally appeared the within named Belle Powell and John W. Powell, both being personally known to me and acknowledged the execution of the annexed deed.” A part of the land in controversy was, at the time of the above attempted conveyance thereof, in cultivation and in the possession of the grantors. The grantees in the above instrument of conveyance — we so denominate it for convenience — thereupon took possession of this land, and they and their mesne grantees continued in possession, and were in possession thereof on [287] the 4th day of May, 1915, when this action was brought. The defendants derive their paper title from the above mentioned conveyance to Mark T. Leonard. Leonard thereafter conveyed the land to one Willis Charles. Willis Charles gave a mortgage thereon to said Mark T. Leonard, which mortgage being foreclosed, the land was sold by the sheriff and purchased by one John Wilks, who entered into possession of the same and continued in possession thereof till his death. Upon the death of Wilks, the land was duly partitioned among his heirs, and the part here in .dispute was set off to his daughter Mary, intermarried with one William J. Bowen, who are the defendants herein. The several defenses interposed upon the trial will be summarized in the opinion, and no necessity exists for lengthening this statement by a recital of them here. Upon the trial, the testimony of plainiff Belle Powell was offered in evidence by deposition. Among other things shown therein was the nature of the contract made by plaintiff Belle Powell with her co-plaintiff Bex A. Trimble. Touching this contract, plaintiff Belle Powell said in her cross-examination: “I received information about March of this year from Bex A. Trimble that led me to believe that I could recover this land. Bex A. Trimble is one of the. lawyers representing me in this case. He was to have one half of (sic) 50% of any land recovered by suit or compromise. Mr. Trimble and the lawyers with whom he is associated in this matter are to pay all costs and expense and to hold me harmless in regard to the costs in this suit, or any suits that might he brought for this land or any part of it.” This plaintiff further testifies that she sold the land to Mark T. Leonard, and that after she sold it to Leonard she “didn’t have anything further to do about it,” and that she had “never paid any taxes on it from that time, since she considered that she had no further interest in it and abandoned all claims to it.” - As a part of plaintiffs’ case they offered a quit [288] claim deed, dated April 30, 1915, from Belle Powell and her husband, John W. Powell, conveying to plaintiff Bex A. Trimble an undivided one-half interest in the land in dispute and other lands. If any further facts shall become necessary to an understanding of the points involved, these will be stated in the opinion. Acknowledgment, I. The sole source of paper title in defendants, as such title is disclosed by the record, is one Mark T. Leonard, to whom as stated, plaintiff and her husband attempted to convey the land in dispute by warranty deed bearing date the 15th day of September, 1882. At the time plaintiff signed and delivered, and attempted to acknowledge the instrument in question, and for some ten months thereafter (See Laws 1883, p. 21) the law in force in this State required that any officer taking acknowledgment of a married woman to any deed of conveyance of real estate must examine such woman separate and apart from her husband (Sees. 680, 681, R. S. 1879), and >so certify in the certificate of acknowledgment, and further certify that the wife executed such conveyance freely and without compulsion or undue influence of her husband. Mere casual reference to the acknowledgment of the deed of conveyance from plaintiff and her husband to Leonard discloses a palpable lack of conformance to the certificate of acknowledgment with the law then in force. That this deed was void is well settled— in fact, that it is so void is tacitly conceded by defendants. Certain other facts, as shown in part by the foregoing statement, are either conceded by the parties or they are conclusively shown by the record. These we epitomize, and re-state below some of them. They are: (a) That plaintiff was married March 24, 1870, and when she attempted on the 15th of September, 1882, to convey the land in controversy to Leonard, was, is [289] now, and eontinnonsly since said latter date has been, a married woman and under all the disabilities of coverture which existed by law in this State until 1889 (Sec. 6869, R. S. 1889); (b) that neither plaintiff, nor any one for her, nor her husband or any one for him, has paid any taxes of any kind on this land since September 15, 1882, but that such taxes, and all of them, have been for all the years intervening paid by defendants and those under whom defendants claim; '(c) that since the date last mentioned defendants and those under whom they claim title have been in the actual, open, notorious, continuous, exclusive, peaceable and adverse possession of the lands in controversy; (d) that these lands have grown in value by reason of the labor and money expended thereon, and on account of money expended for betterment and taxes by defendants and those under whom defendants claim, from $800, their fair value when the attempted conveyance was made to Leonard, to $32,000, their present actual cash value; and (e) that by the contract of plaintiff Belle Powell with her co-plaintiff Trimble, who is an attorney at law, this action is to be maintained and prosecuted by the latter at his own expense, and plaintiff Belle Powell is to be held harmless from all costs of suit and expenses, in consideration of her conveying to said Trimble a half interest in the land in controversy. To escape the force of the legal conclusion, arising from the fact that plaintiff’s deed to Leonard, the common source of title, is void, defendants urge that plaintiffs are barred by (1) the twenty-four-year Statute of Limitations; (2) the thirty-one-year, or so called thirty-year, Statute of Limitations; (3) the ten-year Statute of Limitations as based upon the Act of 1897 (Laws 1897, p. 74), and the alleged duty of plaintiff to have begun her action within ten years after she was by the above act permitted so to do; (4) that the contract between plaintiff Belle Powell and her co-plaintiff Trimble is champertous; (5) that plaintiff Belle Powell [290] abandoned this land from September 15, 1882, till May 4, 1915; and (6) that plaintiffs have been guilty of such laches and acts in pais as to estop them from asserting title after more than thirty-two years have elapsed from the date of the attempted conveyance. Laches and Estoppel. II. Coming to consider whether any of the above defenses are valid as against plaintiff’s paper title, we might, without examining them and for the sake °f argument, concede that each and all of them except that of abandonment would be efficacious and would constitute complete defenses as against any person sui juris■ The defense of abandonment, disassociated from other defenses, e. g., adversa possession, or a failure to pay taxes, has never been recognized as affecting title to real property at common law. For at common law, whatever the rule may have been under the Spanish or Civil law (Tayon v. Ladew, 33 Mo. 207), title to real property can neither be gained nor lost by abandonment operating alone. [Robie v. Sedgwick, 35 Barb. 319; Philadelphia v. Riddle, 25 Pa. St. 259; Perkins v. Blood, 36 Vt. 273.] Because both the defense of laches and that of estoppel in pais may be dealt with together, we do not stop to consider again whether laches may be imputed even to one sui juris when such one puts forward as the basis of his action nothing but a pure legal title. [See Kellogg v. Moore, 271 Mo. l. c. 193; Garrison v. Taff, 197 S. W. l. c. 274; Newbrough v. Moore, 202 S. W. l. c. 551; Bell v. George, 204 S. W. l. c. 519; Chilton v. Nickey, 261 Mo. l. c. 243.] Touching the insistence of learned counsel for defendants that plaintiff is barred by laches and by estoppel in pais, we are constrained to hold, perforce the authorities, that neither laches nor estoppel in pais is as to her real property imputable to a married woman, who was (and who so continued down to the date of the judgment herein) under the disability of coverture when the amendment of 1889 to the Married Woman’s Act took effect. [10 R. C. L. 403; Waldron v. Harvey, [291] 54 W. Va. 608; Gibson v. Herriott, 55 Ark. 85; 10 R. C. L. 742; Phillips v. Piney Coal Co., 53 W. Va. 543; Crenshaw v. Julian, 26 S. C. 283; Krathwohl v. Dawson, 140 Ind. l; Colorado Ry. Co. v. Allen, 13 Colo. 229.] The legal reasons for this rule are fairly obvious, especially when applied to the concrete case before us. By virtue of the Law in force in 1882, and of the husband’s marital rights at common law, the right of possession of the land in controversy was in the husband of plaintiff. While such husband lived, plaintiff could not have brought any possessory action for the recovery of the land in dispute. This right of possession in the husband had become a vested right before the amendment of 1889 to the Married Woman’s Act took effect. The latter amendment could not divest the husband of his vested right of possession, and could not in any wise affect the husband’s interest therein. No action, it is plain, except a possessory action, would have afforded plaintiff any adequate or substantial relief. Since plaintiff, during the lifetime of her husband, was unable to bring a possessory action, it follows that her failure to sue cannot be the basis of laches. It is .true, that since both the Act of 1889 and the Act of 1897 (Laws 1897, p. 74) took effect, plaintiff, at any time since the latter date, could have brought an action to determine interest, that is, the identical action which she now has before us. But she was not compelled to bring such an action. She was not even compelled to bring the present action at the time she did bring it. She could have waited till the right of possession of the land in her husband terminated by his death, and then, within ten years, have brought ejectment. In fact, if she had brought an action to determine interest in 1897, as soon as the act supra of that year permitted her so to do, she would have been compelled, by the same token, to have brought another action in 1907 and still another in 1917 (or even earlier and oftener than in ten-year periods, since laches often [292] operates to bar right of action far short of the period prescribed by the applicatory Statute of Limitations). Failing to sne thus early and often, her rights would have been barred and lost to her forever, upon the doctrine of laches here contended for. To this absurdity it is apparent the defense of laches leads us when we try to apply it to the concrete case. The right of plaintiff’s husband to the possession of the land during his natural life (which right since it constitutes an estate of freehold and is in fact an estate pur autre vie, has been called a “life estate,” because its effect upon the remainderman in some phases is similar to that of a. technical life estate) saved and protected plaintiff’s interest. It is fundamental that laches, or neglect to promptly. bring or assert a cause of action to the hurt of a potential defendant, can never be imputed to one who has no right to sue, or to a case wherein a suit if brought, would not afford any actual relief. Laches is but a manifestation of estoppel in pais. The latter is the genus, the former merely a species. That estoppel in pais is not imputable to a married woman who rests under the disabilities of coverture stated in the premises is settled by what we say above, and by the authorities in this State, and by the weight of authority everywhere. [Rannells v. Gerner, 80 Mo. l. c. 483; Cockrill v. Hutchinson, 135 Mo. 67; Henry v. Sneed, 99 Mo. l. c. 425; Lewis v. Barnes, 272 Mo. l. c. 404; Crenshaw v. Creek, 52 Mo. 98; McBeth v. Trabue, 69 Mo. 642; Lowell v. Daniels, 2 Gray (Mass.) 161; 10 R. C. L. 742; Barker v. Circle, 60 Mo. 258; Mays v. Pelly, 125 S. W. (Ky.) 713; Scott v. Battle, 85 N. C. 184; Morrison v. Wilson, 13 Cal. 495; Cook v. Walling, 2 L. R. A. (Ind.) 769, and note.] We need not reiterate that we are passing only upon the concrete case before us, and not upon a case wherein the wife’s separate property is involved, or a case wherein the woman married subsequent to the time at which the amendment of. 1889 to the Married Woman’s Act took effect. [293] covenant.155 III. The above eases are likewise persuasive authorities against the suggestion that plaintiff was ■ es-topped hy the covenant in her deed. Obviously, also, the plain reason of the thing is against any suc^ view. For, if she is to be estopped hy her deed, then such deed, to be efficacious in producing an estoppel, must of necessity be a good and valid deed, and it is axiomatic that a thing which cannot be done directly cannot, of course, he done indirectly. The deed here is utterly void. Neither can her covenant of warranty estop her, for, among other reasons against such a view, she was not estopped at common law (21 Oyc. 1344) and there was in existence and applicatory in 1882 a statute which limited and made void the covenant of a married woman, except in so far as was necessary effectually to convey her title expressed to he conveyed hy such deed. [Sec. 669, R. S. 1879.] If the deed, as was the case here, was utterly void and conveyed no title hy reason of such invalidity, then it follows that the covenant was void also. It results tñat these contentions of defendants must he disallowed. . . imitations. IY. Coming to the strenuously and ably urged contentions of counsel for defendants that plaintiff is barred hy the several statutes of limitations noted, we are likewise constrained to disallow each and all of these. The twenty-four-year Statutes of Limitations and the thirty-one-year statute are expressly p¡ea(je(j_ ten-year statute is raised hy a general denial. [Carson v. Lbr. Co., 270 Mo. l. c. 245; Land & Imp. Co. v. Epright, 265 Mo. 219:] Under the facts which were admitted, or which are conclusively shown hy the proof, plaintiff without any question would have been barred hy every statute of limitations pleaded, if she had not been protected hy the disability of coverture. In fact, it is settled law that if she had had an existing cause of action, even the disability of coverture alone would not have saved such cause of action to her, because we have held that, given an ex [294] isting cause of action, neither insanity (Paris v. Moore, 256 Mo. 123) nor coverture will save such action after the lapse of twenty-four years of adverse possession (De Iiatre v. Edmonds 200 Mo. 246), because so reads the statute. [Sec. 1881, R. S. 1909.] The difficulty under which we labor in applying the twenty-four-year statute to the facts in this case is that since plaintiff was married in 1882, her husband was entitled alone to sue, and she has never since that date, or at least until 1897, had any cause of action. Since plaintiff sued in less than twenty-four years after she had a bare cause of action, or right to sue, we need not consider a situation wherein there is, and will be, no cause of action till the death of one who holds a life estate, or an interest tantamount to such an estate. All such interests are* saved, covered and protected by the outstanding life estate. [De Hatre v. Edmonds, 200 Mo. l. c. 273; Lewis v. Barnes, 272 Mo. 377; Herndon v. Yates, 194 S. W. 46; Armor v. Frey, 253 Mo. l. c. 477; Bradley v. Goff, 243 Mo. 95.] In the case of Bradley v. Railroad, 91 Mo. l. c. 498, Brace, J., of this court, expressed the thought with rare terseness when he said: “No cause of action accrued to her until her husband’s death and until that event the Statute of Limitations did not commence to run against her or her heirs.” [Dyer v. Brannock, 66 Mo. 391.] Nor did the Act of 1897, supra, have the effect to divest the husband’s right to possession, or to confer on the plaintiff the right to bring a possessory action, or to bring any other action which would afford either actual or present relief to her. Besides, as we have already pointed out in discussing other phases of this case, such a view would force us to assume the anomalous position of saying to plaintiff in effect, that she must have sued to determine interest within less than ten years after the Act of 1897 took effect, and that after a judgment in her favor she must continue to bring .fresh suits to determine interest every ten years, while her husband lives, or lose her land as a- penalty. Discussing a situation precisely analogous, we took oc [295] casion to say, in Division Two, in the case of Herndon v. Yates, 194 S. W. l. c. 48, this: “Defendants insist that the Statutes of Limitations bar recovery; relying, it seems, upon both the ten-year statute and the thirty-year statute for this position. Both the time and sort of possession meet for a foundation for the running of these statutes were shown, we may concede for argument’s sake; but learned counsel in urging the applicability of these statutes overlook the fact that the plaintiffs are remaindermen, and that Lutes, who holds the life estate, is yet alive, and therefore, since his life estate has not yet fallen in, plaintiffs were not compelled to bring this action till he died. They are not, of course, protected here by their non-age existing up till the time they married, nor by their subsequent and yet continuing coverture, because they may not tack- these disabilities, but they are protected by the fact that defendants were (and yet are as to a present action in ejectment, entitled to the possession of the land in dispute till the holder of the life estate shall die. While there are a few cases wherein broad language was used which was peculiarly applicable to the facts in such eases and which language from its broadness seems to squint at the view that since the right to sue was given to plaintiffs by statute in 1897, they must have sued to determine interest within ten years thereafter (cf. De Hatre v. Edmonds, 200 Mo. 246, 98 S. W. 744, 10 L. R. A. (N. S.) 86; Burkham v. Manewal, 195 Mo. 500, 94 S. W. 520; Haarstick v. Gabriel, 200 Mo. 237, 98 S. W. 760), and while at first blush on some considerations the logic of the thing may seem also to point somewhere in that direction, yet the rule is sound and free from absurdities AArhich holds otherwise (Armor v. Prey, 253 Mo. 447, 161 S. W. 829). For we would involve ourselves in an absurd position if we were to say that plaintiffs are barred, here in this action, but that if they had but waited till the life estate fell in they would have been entitled to bring ejectment at any time within ten years subsequent to [296] such event. The Statute of Limitations could not begin to run against plaintiffs till they became entitled to the possession of the land in dispute. This right to possession being postponed by the protecting life estate they were not barred here. [Bradley v. Goff, 243 Mo. 95, 147 S. W. 1012; Hauser v. Murray, 256 Mo. 58, 165 S. W. 376; Armor v. Frey, supra.]” .While the situation presented makes the case a hard one, apparently working great injustice upon the defendants, the rules of law invoked are well settled by numerous adjudged cases. These rules are the result of following the common law, unchanged till 1889 by statutes requiring a more logical and fair view of the relations and property rights of married men and women. We cannot change the law as it is written, however much the compelling justice of the situation may seem to urge. To do 'so would necessitate the overruling of dozens of cases and would bring about an unsettling of the law in matters wherein it has been deemed settled by Bench and Bar for almost half a century. [See Dyer v. Wittier, 89 Mo. 81; Howell v. Jump, 140 Mo. 441; Shumate v. Snyder, 140 Mo. 77; Vanata v. Johnson, 170 Mo. 269; De Hatre v. Edmonds, 200 Mo. l. c. 267; Smith v. Smith, 201 Mo. 533; Land & Imp. Co, v. Epright, 265 Mo. l. c. 215; Graham v. Ketchum, 192 Mo. 15; Dyer v. Brannock, 66 Mo. 391; Pim v. St. Louis, 122 Mo. l. c. 665; Bradley v. Railroad, 91 Mo. 493; Hall v. French, 165 Mo. l. c. 440; Smith v. Patterson, 95 Mo. l c. 529; Babcock v. Adams, 196 S. W. 1118; Lewis v. Barnes, 272 Mo. 377.] Many other cases can be found, but these should suffice. If to-day, in order to meet a seemingly unjust and harsh case, we should change the settled law, perhaps to-morrow, again in order to meet a harsh and unjust case, we might be compelled to return to the law as it is now ruled. [297] statutéyear [296] Y. What has been said above herein applies with equal force to the so-called thirty-year Statute of Limitations. Here plaintiff was, as between her and her [297] •husband, who was entitled to possession of the land (whatever her . duty may have been to the State) under no obligation to pay taxes. It may indeed be said that the duty to pay taxes, • considered merely as a matter between plaintiff and defendants, was upon the latter as the holders and owners of the life estate. Nor was plaintiff, as we have seen, at any time in the thirty-six years, which have now elapsed, entitled either to make an entry, or to bring a possessory action. Hence, it follows that neither the ten-year statute, the twenty-four-year statute, nor the thirty-year Statute of Limitations applies to her here. champerty. YI. Upon the question of champerty, the ruling must likewise be against the defendants. [Euneau v. Rieger, 105 Mo. l. c. 680.] If the agreement between plaintiffs Belle Powell and Bex A. Trimble inter sese be champertous, this fact will not serve to deprive plaintiffs of relief touching the subject-matter champertous contract as against a stranger to such champertous agreement. While there are in some jurisdictions — Wisconsin, for example — holdings to the contrary, and in favor of the view urged on us by defendants, the great weight of authority everywhere bears out the rule we state above. This State early took the view set forth in Euneau v. Rieger, supra. This rule is buttressed both by the reason of the thing and by the overpowering weight of the ruled cases. We see no good or sufficient reason to now change either our views upon the point or the rule . announced thereon. Let this contention also be disallowed. It results that the judgment of the trial court was erroneous and for the wrong party. Let this judgment be reversed and the cause remanded, with directions to the trial court to adjudge the title to the land in controversy to be in plaintiffs, subject to the right of possession of defendants therein, till such time as the husband of Belle Powell shall depart this life, if [298] so it be — -in the event of plaintiff’s prior death, such husband shall háve also an estate by curtesy. It is so ordered. Bond, G. J., Walker, Blair and Williams, JJ., concur; Graves, J., dissents in separate opinion. Woodson, J., not sitting.