This cause of action is stated in two counts: first, to determine title to a tract of land in Barton County; the other in ejectment for the same land. The answer pleads the ten-year Statute of Limitations, the thirty-year Statute of Limitations, and the twenty-four-year Statute of Limitations.
Other defenses pleaded seem to have been lost sight of, as they are not presented for consideration here.
It is admitted that Phoebe E. Wells is the common source of title; she was married December 20, 1854. She *Page 33 acquired title to the land while a married woman, March 8, 1877.
Phoebe Wells and her husband, Henry B. Wells, conveyed the land to George Group, February 19, 1878. The deed was defectively acknowledged by Phoebe E. Wells and not sufficient to convey her title to the grantee, George Group. Group took possession of the land "in a remote day;" afterward he conveyed the same, and defendant Thomas Egger claims from him through mesne conveyances. The defendants Michael and Fred Fisher are tenants of the defendant Thomas Egger, and for that reason were made parties defendant. At the time suit was brought the Egger family had been in possession of the land, claiming to own it, and paying taxes on it, since June 14, 1886.
Phoebe Wells died August 13, 1909, intestate, leaving the plaintiffs, Elbert Wells and Alice Tuthill, her only children and heirs. Henry B. Wells and Phoebe Wells lived together continuously as husband and wife from 1854 to her death. Henry B. Wells died January 19, 1917. This suit was filed June 10, 1921. The plaintiff Jerome Probst claims a half interest in the land by virtue of a deed from Elbert C. Wells and Alice M. Tuthill.
Thus the plaintiffs claim as the heirs of Phoebe Wells, the original owner. The defendants claim by virtue of the various statutes of limitations, by holding adverse possession under color of title in the deed made in 1878 by Phoebe Wells and her husband, defectively acknowledged by her. The deed was properly acknowledged by Henry B. Wells, the husband. The trial court found and determined the title of the property to be in the defendant Thomas Egger, and decreed that plaintiffs had no right or title in the same.
I. That the deed made by Phoebe Wells, in 1878, did not convey her title, on account of her defective acknowledgement, is admitted by the defendants. They claim only that it shows color of title, so far as she is concerned, and that theTrial several statutes of limitations bar recovery. The trialTheory. court did not *Page 34 indicate a theory of the case, but judgment for defendant must have been upon one or more of the statutes of limitations pleaded.
II. It becomes necessary first to determine what would start the operation of the Statute of Limitations. In that connection, what was the effect of the deed to George Group? The land was acquired by Phoebe Wells before the passage of theRight of Married Woman's Act in 1889, therefore the right of herHusband. husband was unaffected by that act. [Graham v. Ketchum, 192 Mo. l.c. 29; Babcock v. Adams, 196 S.W. l.c. 1119; 17 C.J. p. 428.] Henry B. Wells, by virtue of the marriage relation, had a possessory right, and, on account of the children born of the marriage, had a curtesy initiate which became consummate on the death of the wife in 1909. His right, it has been held, was an estate for life in the wife's land, which entitled him to possession and enjoyment of the property; his interest was vendable and subject to sale under execution. [Teckenbrock v. McLaughlin, 246 Mo. 711.] His right to possession of his wife's real estate acquired at that time and in that manner is settled by a long series of precedents in this State. He alone could sue for possession. He could convey his possessory right, his life estate, and did convey it to George Group in 1878, by the deed which his wife defectively acknowledged. [Powell v. Bowen, 279 Mo. l.c. 297.] The defendants acquired that right by mesne conveyance, and held possession under it until his death in 1917. Group and his grantees became invested with the possessory right of Henry B. Wells, while Phoebe, his wife, lived, and with his curtesy consummate on her death.
III. Did the thirty-year Statute, or any other Statute of Limitations, bar recovery? No right of action accrued to the heirs of Phoebe Wells as against their father, Henry B. Wells, or those in possession under him, until his death inLimitations: 1917. The Statute of Limitations during the lifeRemaindermen. estate does not run against a remainderman. While no estate for life *Page 35 was carved out, giving the remainder to the heirs of Phoebe Wells, yet by the operation of law her husband, on the acquisition of the property became vested with the possessory right which is called a life estate. [Teckenbrock v. McLaughlin, 246 Mo. l.c. 713; Powell v. Bowen, 279 Mo. 280, l.c. 294; Herndon v. Yates, 194 S.W. 46, l.c. 48.]
It is true Phoebe Wells had a fee simple which descended to her heirs subject to the possessory life estate of her husband. At her death in 1909 his curtesy became consummate and the interest of plaintiffs here became a vested remainder. They could not sue for possession until the expiration of the intervening life estate. That life estate was conveyed to Group in 1878 and passed to the defendant Egger by mesne conveyance. The Statute of Limitations could not run until the death of Henry B. Wells in 1917.
Some cases cited by respondents under this head may be noticed. In DeHatre v. Edmonds, 200 Mo. 246, l.c. 269, it is held that the Statute of Limitations began under circumstances something like these, against the whole estate. Applying that reasoning to this case it may be argued that the statute began to run, not only against Phoebe Wells, but against her husband, from the time Group took possession of the property under his color of title. That would be more plausible if Henry B. Wells had had a right to sue for possession. He could not sue, because he had parted with his interest, and the defendant and his grantors had acquired it. They had all the possessory rights which Henry B. Wells would have retained if he had never conveyed and had continued in possession. If the defendant had not acquired the life estate and Wells had conveyed to someone else, defendant could have set up the ten-year Statute of Limitations against the owner, and could have defeated a recovery of possession because the life tenant was barred. It is unnecessary to say what effect that would have upon the remainder, for in this case the defendant and his grantors acquired the life estate. *Page 36
The case of McKee v. Downing, 224 Mo. 115, relating to a resulting trust, is not a possessory action, and does not involve the particular right of the husband, as in this case.
The case of Collins v. Pease, 146 Mo. 135, was a case in which the husband's interest in the land was not involved. The case of Nichols v. Hobbs, 197 S.W. 258, is cited, and there, speaking of the thirty-year Statute of Limitations, it was distinctly held that the statute cannot be applied to a remainderman unless it begins to run before the life estate has been carved out and separated from the remainder. Before the life estate has been carved out the Statute of Limitations may begin to run and continue to run, after it has been carved out, against the whole estate. After the life estate and the possessory right of the life tenant begins, adverse possession would start the statute against the life tenant, but not against the remainderman, because no cause of action has accrued to the latter. In the Nichols Case it was held that the statute did not run. A cause of action for possession did not accrue to the plaintiffs until the death of their father in 1917, hence neither the thirty-year, the twenty-four-year, nor the ten-year statute could run against them until that time. Hall v. French, 165 Mo. 430, holds to the same effect. A life tenant cannot hold adversely to his remainderman, and the defendant is life tenant, per autre vie. [Armor v. Frey, 253 Mo. 447; Bradley v. Goff, 243 Mo. 95.] If Wells had continued in possession he would not have held adversely to plaintiffs. The defendants in this case, having acquired his right to the possession of property during the life of Henry S. Wells, could not, during his life, hold adversely to the plaintiffs, because of their remainder in the property.
The thirty-year Statute of Limitations mentions no disabilities, but that statute can be applied only as against a cause of action which has accrued. It runs against disabilities such as minority, insanity, coverture, etc., but not unless the cause of action has accrued, so that the party suffering under disability has immediate possessory right. *Page 37
IV. The appellant contends that the ten-year Statute of Limitations has barred recovery because the husband's marital right in the land ceased on the death of his wife in 1909, and this suit was brought in 1921. In the same connection it is asserted that the husband in 1878 conveyed his rightUpon Death of possession and defendants have acquired thatof Wife. right. His right which the defendants acquired, did not expire with the death of his wife, but expired only with his death. If plaintiffs had sued for possession at any time prior to his death the defendant would have had a perfect defense in that he held the life estate of Wells.
V. It is argued that Phoebe Wells at any time during her life might have brought an action to determine the title. Suppose she could. That, however, would not have affected the result. The court would have determined that her title,Right of Wife whatever she had, was subject to the lifeto Sue. interest, or life possessory right, of her husband; she could not have been adjudged possession under whatever right the court might determine she had. The result would not have affected this action. These plaintiffs might have brought suit immediately on the death of their mother to determine their right. The court necessarily would have held that the defendants held the life estate of their father; that they held a vested remainder, and would be entitled to possession only after his death.
VI. It is claimed that the plaintiffs had a right to commence this action under Section 1310, Revised Statutes 1919. That section, as applied to this case, provides that if "anyone entitled to commence such action" die duringThree-Year disability, etc., then his heirs within three yearsStatute. after her death might commence such action. What sort of action is contemplated in that section? It might mean an action for possession, or an action to determine title. No action accrued to Phoebe Wells to recover possession during her lifetime because her husband's possessory right excluded her. If a cause of action to determine title accrued to *Page 38 her, the plaintiffs might have commenced such action at any time after her death, but in such case the court must have found, as shown above, that they were not entitled to possession, but entitled only to a vested remainder. It would not affect their right to recover possession in this case.
Other new sections of the statute might be mentioned in this connection. Section 1312 applies to a case where the holder of the legal title has conveyed and the spouse has not joined. That was not true in this case because Phoebe Wells had the title and did not convey. Section 1308, limiting the bringing of a suit in two years, might be cited. That is where a cause of action hasaccrued to a married woman more than ten years before the bringing of the suit. As shown above, no cause of action for possession of the real estate in question here ever acrued to Phoebe Wells. A cause of action accrued to these plaintiffs for such possession only after the death of their father in 1917.
The case of Hubbard v. Keen, 247 S.W. 1000, is cited. That case is distinguished from this in applying statutes 1307 and 1310. It will be noticed that in that case this court did not overrule the case of Powell v. Bowen, 279 Mo. 280, a case on all-fours with the present case. The judgment below cannot stand without disavowing the rule explained above in Paragraph II, and supported uniformly by a long line of decisions.
The judgment accordingly is reversed, and the cause remanded to be proceeded with in accordance with the views herein expressed. All concur.