(dissenting). — Our learned brother says this is a harsh case. To this I cheerfully accede. It is indeed so harsh, that I will not lend my assent thereto, if upon any legal theory it can be avoided. That the plaintiff in this case received the full value for her land when she sold it is not questioned; that she then, and for more than thirty-one years thereafter, abandoned all claim thereto, she admits; that she knew that her 'grantee was taking possession thereof, and would make improvements thereon, stands to reason from the record; that the grantee and his subsequent vendors in title did make permanent, valuable and lasting improvements is thoroughly shown; that by reason of these improvements and the advance in lands (growing with the flux of time) the cheap land of 1882 is now worth $32,000; that it required a champertous contract, at this late date, to spur her to this action, is shown. In short, the record facts are nauseating to a sense of right doing, and shocking to a keen sense of justice. I believe that there is a clear way around this wrong, and in the succeeding paragraphs will suggest them.
1ST t0
I. I am not unmindful of our previous rulings upon several of the questions I shall discuss. The harsh facts of this case furnish me further excuse to reiterate what I said in Babcock v. Adams, 196 S. W. l. c. 1120. I then said: “I have long had in mind the idea that we have misconstrued Section 1881, Revised Statutes, 1909, when read in connection with the Married Woman’s Act. In origin this statute antedates the Married Worn-*299an’s Act. It was at the time of its first enactment expressive of common-law doctrines. At its inception married women belonged to a class suffering disabilities, so far as the right to sue was concerned. This Section 1881 excepted the class (married women) from the limitations prescribed by Section 1879, Eevised Statutes 1909, which is the ten-year Statute of Limitations. But for the exception the married woman would have fallen under the ban of said Section 1879. This exception made by Section 1881 was written into the law because of the then inability of a márried woman to sue and recover her real estate. "When the Married Woman’s Act was passed all reason for the exception vanished. By Section 1881 she was not excepted for the reason that she was a married woman, but because she belonged to a class laboring under disabilities. When the disabilities were removed from the class (as they were by the Married Woman’s Act), then the excepted class was in effect removed from the statute, and as to Statutes of Limitations the married Avoman stood just as all other persons sui juris stand; in other words, the effect of the Married Woman’s Act was to repeal and modify the terms of the statute, to the extent of taking this excepted class (married women) out of Section 1881.
“Since the passage of the Married Woman’s Act there is no reason for saying that a man or single Avoman must sue for lands within ten years, but the married woman, possessed of all the rights to sue as the others should have the statute tolled in her favor. I am aware that our opinions are the other way, but these have long since been my views, and I take this occasion to express them.”
It will be noted that I concurred in the Babcock case, solely on the ground that our previous rulings constituted rules of property, and to disturb them would be to disturb property rights. But since that time we have in the case of Klocke v. Klocke, 276 Mo. 572, ruled that the overruling of an opinion of this court, Avhioli con*300strued a statute of the State, would not effect previously acquired property rights. In other words, the ruling in the case which overruled such previous opinions would he prospective only and not retroactive. It becomes necessary at times to overrule opinions construing statutes, and which opinions have fixed rules of property. But, in view of the rule in the Klocke case, supra, this should not deter us in righting a wrong, when the mischief is such as to demand it.
In 7 R. C. L. p. 1008, the idea is most elegantly expressed: “If judges were all able, conscientious, and infallible; if judicial decisions were never made except upon mature deliberation, and always based upon a perfect view of the legal principles relevant to the question in hand, and if changing circumstances and conditions did not so often render necessary the abandonment of legal principles which were quite unexceptionable when enunciated, the maxim stare decisis would admit of few exceptions. But the strong respect for precedent which is ingrained in our legal system is a reasonable respect which balks at the perpetuation of error, and it is the manifest policy of our courts to hold the doctrine of stare decisis subordinate to legal reason and justice, and to depart therefrom when such departure is necessary to avoid the perpetuation of pernicious error.”
I think we went wrong in the early cases of Throckmorton v. Pence, 121 Mo. 50, and Lindell Real Estate Co. v. Lindell, 142 Mo. l. c. 76, when we held that under the Married Woman’s Act of 1889, a married woman did not have to sue until she became discovert. There were two lines of thought in the early, cases at the time of our first ruling. One line held that the Married Woman’s Acts (similar to our own) gave a married woman the right to sue whilst she was covert, but she was not obliged to sue where there were statutes (like our Secs. 1881 and 1894, R. S. 1909) which excepted married women from the usual statutes of limitations. The other line of cases held, that the force and effect *301of the Married Woman’s Act were to strike this exception as to married women from all tolling statutes, such as our Sections 1881 and 1894, supra. Our court-followed the first named line of cases, and herein much of' our trouble, and all of our harsh case law. I think we erred in the two cases above cited, and under the Klocke case, supra, we can change the rule without prejudicing property rights. We should hold that the effect of the Married Woman’s Act of 1889 was to strike from our Section 1881, Revised Statutes 1909, the exception as to married women. It was then Section 6767, Revised Statutes 1889. Not only so, but it would strike a similar exception from Section 1894, Revised Statutes 1909, which was Section 6779, Revised Statutes 1889.
The cases to be overruled are all oases construing' statutes, and under the ruling in Klocke’s case, supra, no baneful effects will follow. There is no sense in saying (since the Act of 1889 as to married women; that a man or a single woman must sue within the statutory period in order to protect their rights, and that a married woman, with the. same legal right to sue, may postpone her action until she becomes discovert. There was no reason for giving her the right, unless she was to be required to exercise it, as a femme sole. The very purpose of the law was to place her in the position of a femme sole. She needed no statute to give her the right to sue after she became discovert.
The two statutes (Secs. 1881 and 1894, Revised Statutes 1909) had the exceptions therein as to married women stricken therefrom per force of the Act of 1889 as to married women. We should have so ruled from the beginning. We will have to so rule, or 'be troubled with other harsh and unrighteous cases, as is the case at bar. It will be noted that the two sections cover all kinds of actions, and that the exceptions are the same in each. With these exceptions stricken from these statutes, we are permitted to get to the meat of the instant case.
*302 Estoppel
II. It is urged that the plaintiff in this ease could not sue for the possession, because her husband was yet alive. Under our holdings, I shall grant this proposition. But that concession does not settle the case. ^ the tolling statutes (Sections 1881 and 1894, R. S. 1909) no longer contain an exception as to married women, then this plaintiff is not necessarily protected by the fact that her husband, up to the date of the deed had the right of possession, and that after the deed the defendants and then their predecessors in title had the right of possession.
By the Act of 1897, which, with its amendments, is now Section 2535, Revised Statutes, 1909, the plaintiff was given a cause or right of action, and a remedy. This right of action has been in her since 1897. It is this identical right of action that she is now attempting to enforce. In other words her present suit is predicated on Section 2535, supra, and is the same suit that she could and should have brought in 1897. Estoppel in pais is duly pleaded. Not only so, but well shown in the evidence. In other words, the record tends to show improvements on the land since 1897. A levee was completed in 1896, since which drainage of the land by a drainage .plan has been perfected. Many improvements were made since 1889, including the levee. Four or or five houses have been built upon the land, whilst there was but one in 1882. But it suffices to say that the evidence tends to prove improvements made since 1897.
Mrs. Powell should have brought this suit when the right was first given her so as to stop these improvements. Failing to do so she is estopped now from maintaining the very suit she should have brought in 1897. She knew that her grantee would claim the full title from the date of her deed in 1882. She recognized this claim of full title, as is shown by her evidence. She knew that improvements would be made. She knew all these things, and is now fully estopped from maintaining this particular action, because defendants were permitted to act to their detriment. And this is true, although *303in a possessory action (not yet accrued under our rulings) she may be able to recover possession.
We are not discussing laches, but estoppel in pais. We undertook to say that there was a difference betAveen the two doctrines in Kellogg v. Moore, 271 Mo. l. c. 193 et seq. After disposing of the question of laches in our paragraph 2 in that opinion, estoppel in pais is disposed of in paragraph 3 of that opinion. So that Ave hold that plaintiff is clearly estopped from maintaining this particular action, because (eliminating from our tolling statutes Sections 1881 and 1894, supra) the exception as to married women she had an unrestricted right to bring her action, and thereby forestall the improvements thereafter made. At that time she had the clear right not only to sue, but the clear and unobstructed right to contract. At that time she could have contracted as to her alleged reversionary interest, and having the right to contract with reference thereto, and to convey the same, the doctrine.of estoppel in pais will apply. At that time she had all rights to sue and to contract, save and except the right to sue for possession. We concede that where one cannot sue to protect rights, she can’t well be estopped. We further concede that when one cannot be bound by contract she may not be bound by estoppel. But these concessions do not reach this case. In this very case she is trying to enforce a right which could have been enforced from 1897 to the present. As to her, the doctrine of estoppel in pais was properly invoked, and if sustained by the facts, should preclude this particular action. Whether she may have a more successful form of action when her husband dies, is another question. It is to be hoped that some Providential act may obviate the harsh rules of law, and save defendant from dire results. But her own conduct estopped her as to this particular action.
Estoppel in pais is not dependent upon limitations, nor is it confined to equitable actions. The doctrine was and is recognized in common law courts. [16 Cyc. 682.] In that it differs from laches. [Kellogg v. Moore, *304271 Mo. l. c. 193 et seq.] Estoppel in pais may be set up as a defense in actions at law as well as in equity. [16 Cyc. 725.] Nor is this all. The doctrine goes to the remedy which many invoked, as well as to the right. [16 Cyc. 722.] We emphasize this, because the conduct of the plaintiff in this case has justified the invocation of estoppel in pais, as to the remedy, i. e. this, particular suit. So I conclude that the judgment nisi in this suit was well within legal bounds, whatever may be the result of a future possessory action, and irrespective of any statute of limitations. The judgment should be affirmed and I so vote.