Williams v. Dongan

Ryland, Judge,

delivered the opinion of the court.

As the point raised on the statute of limitations in this case must, in the opinion of this court, determine the question in controversy, it will only be necessary to consider it. We shall not, therefore, touch the other questions involved, but pass them by, with the remark, that they involve much learning, and require more time and research than we can now bestow, especially when the point we decide will settle the case. From the agreed facts, as they are upon the record, it seems that the widow Charleville was the owner of the land in controversy in 1811, and that she granted the same to Genevieve Duchou-quette, her daughter, by deed dated 4th April, 1811; that Genevieve Duchouquette, being in the legal possession of the land, received a mortgage from one John Murphy, on the 16th of March, 1812, for the same land, to secure the payment of a sum of money; that she assigned said mortgage to Archibald Gamble and sold to him all her interest in said land, in January, 1820. The mortgage was assigned 27th December, 1819, and the deed for the land dated 17th January, 1820.

Archibald Gamble sold and conveyed the land by deed dated July 17th, 1820, to the defendant, Dongan. Dongan took possession of the land soon after his purchase of it from Gamble, in 1821 or 1822. He foreclosed the mortgage by a judgment of the Circuit Court of St. Louis county, at the August term, 1821, and purchased the land at sheriff’s sale, on the 6th day of February, 1822, and received from the sheriff a deed for the same, of that date. It is agreed that Dongan took possession of the land soon after his purchase from Gamble in 1821 or 1822, and that he built a dwelling house, made fields, and lived upon the land for eight or ten years, and then removed to the state of Illinois. Since that time, he has never personally been upon the land, but part of the time has had tenants on the land ; and when not tenanted, has all the time had an agent residing in the neighborhood, charged with the duty to rent it out if tenants could be had, to pay the taxes and to superintend and control and protect it from trespasses, and that he habitually paid the taxes ; that no person under whom the plaintiff claims did pay taxes.

It also appears that Pierre Duchouquette and Genevieve Charleville were lawfully married on 23d February, 1797; they lived together as man and wife until the 24th of December, 1803, and then separated, and never lived together after-wards, as man and wife ; that they mutually executed a contract or articles of separation in writing, dissolving the marriage (so far as their agreement could dissolve it,) dividing the property owned by them in community, renouncing mutually all rights and powers flowing from their matrimonial or marriage contract, and granting to each other the free and absolute disposition and control of their property and conduct, as if they never had been married ; that they never went beyond the limits of St. Louis county after their marriage ; that Genevieve died on the 13th November, 1822; that Pierre died in 1835 or ’36, intestate ; that Genevieve had two children, a son and a daughter ; that the son died without issue in the life time of his mother ; that the daughter is the same Sophie or Marie Sophie mentioned'’in the plaintiff’s petition, under whom he derives titles. The said Sophie or Marie Sophie was born on the 26th February, 1807, and on the 2d day of January, 1823, intermarried with one James Gonsollis, who died one or two years before this suit was commenced. At the death of her mother, Genevieve, 13th November, 1822, Marie was a minor, unmarried, and remained single until the 2d January, 1823. Dongan was in possession and .remained in possession for some eight or ten years from the year 1821 or some time in 1822. He took possession soon after he bought of Gamble ; his purchase from Gamble was in July, 1820 ; his purchase at sheriff’s sale was in February, 1822, It may then be supposed he was at the time in possession : his possession was open, public ; he built a house, made fields, lived on the land, paid taxes always, had tenants after he moved to Illinois, and had his agent to take care of and attend to it', in the neighborhood.

The right of the daughter, Marie Sophie, if she had any, accrued upon the death of her mother, which took place on the 13th of November, 1822. She was then sole, and infancy was at that time the only disability under which she labored, or by which her right at that time was protected under the statute of limitations. The statute passed in December, 1818, concerning limitation of actions, must govern this case. That declares, “From henceforth, no person or persons whatsoever shall make entry into any lands, tenements or hereditaments, after the expiration of twenty years next after his, her or their right or title to the same first descended or accrued,” &c.

§2. “ If any person or persons having such right or title be, or shall, at the time such right or title first descended or accrued, be within the age of twenty-one years, feme covert, &c., then such person or persons, and the heir or heirs of such person or persons, shall and may, notwithstanding the said twenty years be expired, bring his, her or their action, or make his, her or their entry, as he, she or they might have done before the passing of this act: Provided, that such person or persons shall, within twenty years next after attaining full age, &c., sue for the same, and at no time after the said twenty years.”

The court, from the agreed facts, found for the defendant, and this finding we think right. From the facts and the statute of limitations then in force, we think the court did not err in giving judgment for the defendant.

There was a space of time between the concurrence of the two disabilities of infancy and coverture. The right descended to her, accrued to her, while she was under one only of these disabilities — infancy. She became of age on 26th of February, in the year 1828. At that time, then, the statute commenced running against her, although she was a married woman. The disability arising from the marriage commenced after her rights had accrued. The twenty years expired then on the 26th February, 1848, and this action was commenced in June, 1851, not within the time, and is consequently barred.

I remarked, in the beginning, that, as this one point would settle this controversy, it would be useless labor to consider the questions arising on the articles of separation, or the power of the wife, to sell lands which had been given to her after this separation, or given to her during her marriage, disregarding the separation.

I am strongly inclined to think that, should the court declare the articles of separation of no effect, in regard to the power of dissolving the marriage relation between the husband, Pierre, and Genevieve, the wife, yet it would be but a fair interpretation of them, to consider them as indicating the consent of the husband to the wife to sell her property. However, as the statute of limitations is, beyond all doubt, a bar to the plaintiff’s action, we confine our opinion alone to that one point. There is no tacking of disabilities under our statute of limitations. See cases of Eager v. Commonwealth, 4 Mass. Rep. 182. Bunce et al., v. Wolcott et al., 2 Conn. 27. Griswold v. Butler, 3 Conn. 227. Doe ex dem. v. Jones, 4 Term Rep. 301, 307. Stowell v. Lord Zouch, Plowden’s Rep. 353, as far back as 10th year of Elizabeth.

The judgment below is affirmed, the other judges concurring.