author: LAMM, P. J.

text:
    LINUS SANFORD, Appellant, v. JOSEPH KERN.
    Division One,
    November 27, 1909.
    1. PRIVATE ROAD: Prescription: Contract: Limitation. Where plaintiffs case to establish a private road rests on prescription, that is, an adverse user as of right, openly and uninterruptedly, for more than ten years, in pursuance to an executed contract, supported by a valuable consideration, that prescriptive right is effectuated by the Statute of Limitations.
    2. LIMITATIONS: By Whom Invocable. The Statute of Limitations can be invoked only by a person claiming by right, and not by wrong. No flux of time will ripen a bad title into a good one unless possession is based upon a claim of right.
    3. PRIVATE ROAD: Prescription: Consideration. The building of a fence for the landowner in return for a private roadway through the land, is an adequate consideration in law to support the prescriptive right. And if the fence was built and the road opened the contract was executed.
    4. -: —:-: License: Revocable. Where the fence was needed to prevent the incursion of breachy stock, and plaintiff, under agreement that he was to have a private road through the land, built the fence, and it was accepted as a compliance with the contract, his use of the road, opened and used in pursuance thereof, was not a mere permissive license revocable at will.

      5. -: -: -: -: Use by Others. Nor is his possessory right in any way impaired by the fact that neighbors when they liked used the private road or lane, so opened and constructed. Such use did not destroy his easement.
    6. -: -: Necessary Possession. The possession necessary to establish the prescriptive right is the best possession the subject-matter is susceptible of. If an easement right to a fenced private roadway, based upon a claim of right, it is such possession as is usually taken of an open lane — continued use as a roadway, and kept fit for use by repairs.
    7. -: -: Intent. Use under an adverse claim of right rests in intent, and intent rests in acts and words.
    8. -: -: Grant: Limitation. A prescriptive right does not rest exclusively in grant; it may be established in the same way as title to land, that is, by adverse possession under a claim of right uninterrupted for ten years.
    9. -: -: License: Revocable: Equitable Estoppel. A license to use a way or an easement, though without consideration at its inception, may not be revoked at will, where, from the very nature of the license, the licensee was expected to 'go to great expense in order to enjoy it and where, that expense has been incurred. In such case equitable estoppel arises, and the relations of the parties may not be severed and the easement destroyed at the whim and by the act of the licensor; they must be severed, if at all, upon equitable principles.
    10. -: -: Title In Another: Notice: Limitations. The title was in English, and his daughter was in possession clothed with powers of an apparent owner and exercised those powers by leasing the land to tenants and enjoying the usufruct. Plaintiff, with English’s knowledge and consent, agreed by parol with her to construct a ten-rail fence around her cultivating land, if she would grant him a private roadway through her land, and the fence was constructed. Thereafter English died and devised the land to her. She sold to Burford and he to defendant. Burford bought with actual knowledge of plaintiff’s claim, so did his grantee, the defendant. Plaintiff had been in uninterrupted possession of the roadway for fourteen years when defendant fenced it up. Held, the Statute of Limitations ran against English, his daughter, Burford and defendant, and ran continuously from the beginning, and judgment is rendered for plaintiff.
    Appeal from Cape Girardeau Court of Common Pleas, —Hon. B. F. Davis, Judge.

      Reversed and remanded (with directions).

      Oliver, Oliver & Oliver for appellant; Linus Sanford, pro se.

    The road was used, worked and occupied in every way a road could be from the date of the purported contract in 1889 to the fall of -1905, continuously, under claim of right, and the appellant has acquired a perfect easement of way by prescription. A right to a private way acquired by adverse user is a vested right, and not a license. Washburn on Easements (3 Ed.), p. 135; Powers v. Dean, 112 Mo. App. 288. 2nd. The road was fenced off, open, worked and used by the public and this .respondent during the lifetime of English, under the purported contract, and without any objections from him for six years prior to his death, while this fence was necessary to protect his farm. Then English and all claiming under him, with notice, are estopped from claiming said strip of ground. The statute commenced to run during the life of English, and his death and vesting of the estate in Mrs. Baldwin did not stop it. State v. Macy, 72 Mo. App. 427. 3rd. Where a party spends money and labor in consideration of .the license, the same cannot be revoked, and especially in this case, after sixteen years. Powers v. Dean, 112 Mo. App. 288; House v. Montgomery, 19 Mo. App. 171; Baker v. Railroad, 57 Mo. 265; School District v. Linsay, 47 Mo. App. 134; Gibson v. St. Louis A. G. M. Co., 33 Mo. App. 165; Chiles v. Wallace, 83 Mo. 85.

      Wilson Cramer for respondent.
    (1) There never was a conveyance of the strip of ground occupied as a lane and its use, as shown, was simply permissive. The owner of the land had the right to revoke the license at any time. (2) Mrs. Baldwin, being without title, could not bind the estate by any agreement she might make. Her conveyance after she acquired title under the will of her father, in 1896, amounted to a revocation of the license she had given. (3) The evidence utterly fails to establish an easement by prescription. There is nothing to show that plaintiff was undertaking to hold the strip adversely to the owners of the land. For aught that appears he always recognized the rights of the several owners. Anthony v. Building Co.,. 188 Mo. 704.
   LAMM, P. J.

Suit to establish a right in plaintiff to a private way in Cape Girardeau county, and to remove obstructions put in the way by defendant. The ultimate facts relied on to show a user as of prescriptive right, or adverse possession under a claim of right, are set forth in the petition with sufficient particularity to permit the proof put in. As no point is made on the sufficiency of the petition, it will not be further noticed.

The -answer raised the general issue.

Judgment for defendant. Plaintiff appeals.

There is little or no dispute on material facts. In 1889 plaintiff owned a body of timber land (the rise of one hundred acres) in section 30, township 32, range 13, with no access to it by public road or private way. A half mile east,' following the meandering of Hubble Creek, ran an old north-and-south public road known as the Jaekson-and-Pocabontas road. Between that road and the south part of plaintiff’s woodland, lay a tract of cultivating land we will call A. North of and bordering A, between the north part of plaintiff’s land and said public road, lay another tract we will call B. There was an east-and-west partition fence between A and B. At that time one Flynn owned tract B, and Nannie E. Baldwin, the daughter .of Thomas W. English, was in possession of tract A. Whether she was covert or discovert at the times in hánd is dark. As a matter of fact she seems to have claimed the land, but tbe legal title was in her said father. She did not reside on it but for several years, by her father’s consent, occupied it through her tenants and, with his consent, exercised acts of proprietorship over it, contracting with relation thereto, and enjoyed the rents and profits. She was commonly reputed to be the owner and Sanford thought she was. Evidently she held the land under some domestic arrangement not fully developed. Whether by a gift resting in parol accompanied by possession, or whether it was turned over to her because of, or anticipating, a will devising the land to her, or some undisclosed contract, we do not know. At any rate, about five years later Mr. English died. At that time it was found he had made his will giving Nannie tract A.

In 1889 the party fence between tracts A and B had run down at the heel through decay and inattention. Lured by growing crops and a broken fence, the Flynn stock trespassed on the crops of Nannie’s tenant and wrangles and squabbles sprung up between the Flynns and her tenant, F'ullenwider. At this immediate time Sanford was clearing his woodland to make a farm of it and desired a right-of-way opening it to the Jaekson-and-Pocahontas public road. To that end he opened negotiations with Nannie, thinking her the owner of tract A, and made a proposition to her to furnish the labor and material for a ten-rail fence in consideration of a private way thirty feet wide and half mile long off of the north end of tract A, running from his woodland to said road. The proposition was accepted by her. There is evidence indicating it was considered by her and her friends, including her father, a good proposition, in that it would furnish her protection against the ravages of the Flynn stock, fence tract A securely in.and keep the cows out of her corn. Accordingly, she instructed her tenant, Fullenwider, to stake out a strip a half mile long and thirty feet wide off said north end and act in her stead in accepting the fence Sanford was to bnild as per contract. Presently, at his own expense in labor and rails, he bnilt a new ten-rail fence on the line marked off by Fnllenwider, “every corner locked” or “cross-railed.” We assume it was an old-fashioned, “stake-and-rider” worm fence. Mrs. Baldwin testified that Sanford was to furnish all the rails but failed to do so, using some rails out of her half of the old partition fence. As she did not live on the place, the record indicates that her testimony in that behalf was not based on personal knowledge. Contra, there is substantial evidence from her tenant, Fullenwider, and from parties who built the fence for Sanford, that he furnished his own rails from his own land, fully performed his contract, and that Fullenwider accepted the fence. There is other uncontradicted testimony to the effect that a thirty-foot lane was then opened, fenced on both sides and' remained an open, used lane from 1889 until a year and a half before the filing of the petition in this cause, August 29, 1905', say, fourteen years. The negotiations between Sanford and Mrs. Baldwin seem to have been conducted by correspondence (now lost) and the contents of letters were proved by parol. Fullenwider testified without contradiction that the old line fence was very bad; that when he rented the farm from Mrs. Baldwin the poor fence was objected to by him; that she promised to fix it but did not; that the Flynn stock jumped in and annoyed him; that in September*, 1889, (quoting), “she wrote me that Mr. Sanford had made her a proposition that he would build her a fence if she give a road through here, she asked me what I thought about it, in a letter.” In response to that letter he told her “it would be a very good thing because they were wrangling about the stock.” He further testified: “I know Mrs. Baldwin was to give Mr. Sanford thirty feet of land through there for that fence and I know that because I had letters from her.” Again, he testified: “She wrote me that if Mr. Sanfo,rd -would build her a good fence, ten-rail fence, . . . for rue to stake off thirty feet, which I did, and for rue to receive the fence. Mr. Sanford built the fence according to contract and I received it and wrote to her.”

There was other testimony, substantially uncontradieted, to the foregoing effect, and we think it satisfactorily established that in consideration of Sanford’s building the fence to protect her tenant’s crops and inclose her own land for renting and cultivation purposes, Mrs. Baldwin agreed to give and did give him said roadway from his woodland to the Jackson-andPoeahontas public road.

It seems after the lane was open and in use, Sanford discovered the legal title to the strip was in Mr. English. While on the stand and being examined in chief, it was sought to show the substance of a conversation between the two. Objection was lodged against this testimony (English being dead) and sustained. Subsequently, on cross-examination, it cropped out that when Sanford went to English, he, English, told him to use the road and keep it in repair; that Flynn (quoting) “ought to have given part of the lane but it was the best thing Nannie could do;” further, that when Sanford found out that Mrs. Baldwin was only to get the land at Mr. English’s death, and, as said, went to see him, he, English (quoting), “laughed and said the road ought to be through there and that none of them would interfere with me.” We think the testimony establishes that from 1889 up to the 'time the road was closed by Kern, Sanford on all occasions kept the roadway in repair by working it and repairing a bridge thereon (except that the Flynns helped a little in working a part of the road at a certain time).

There is no testimony on the value of the thirty-foot strip of land (something less'than two acres), in 1889 ; nor as to the cost at that time of making and hauling rails and building a good ten-rail fence one-half mile long. There is nothing to show it was not •a fair trade on an adequate consideration passing. The testimony indicates that the title to the fence, when built and accepted, was to be in Mrs. Baldwin, that she treated the fence as her own and that the title thereto passed to her grantees hereinafter mentioned. Nothing was said about Sanford keeping the fence in repair. Such repairs seem not within the scope of the contract. Accordingly, he did not repair it. All the testimony shows it remained a fair fence down to a short time before the road was closed. Some of the testimony shows it was a fair fence at that time but there was testimony it was then out of repair.

The main question in the case turns on whether Sanford’s use of the road was under a revocable license, i. e., merely permissive and in a neighborly way, or whether his user was of right and his claim adverse under his executed contract. It will, therefore, be not amiss to set forth the testimony with more particularity. There is no dispute but what Sanford and his tenants and those having business with them or on his farm, used the road openly and continuously for fourteen years or thereabouts without any question raised as to the right of such use by the owners of tract A.

Sanford says, among other things, that his proposition in writing to her was that he would build a half mile of fence and furnish all the material “if she would give me a roadway;” that the fence was the consideration for the road; that his proposition was accepted and performed; that the road, when opened, became his only way to market his wood and farm products; that before Kern bought tract A he came to see him, Sanford, about buying Sanford’s said land and inquired “how he could get out if he bought it. ” Thereupon Sanford told him plainly of the lane and that he had bought it and paid for it and had a. right of way there. Sanford further testified in effect that he always claimed it as a private way as of right after he had built the fence and opened the lane.

One Green testified he was a tenant on Sanford’s land and hauled a great deal of cord wood over the road to Jackson, and that Mr. Sanford had him work the road and keep it in repair for the eight or nine years of his tenancy. Bolinger, Sanford’s succeeding tenant, testified the same way.

Mrs. Baldwin testified she did not “sell” the strip to Sanford and gives her reason for not selling it in these words: “No, I did not sell it, because at the time I did not own it.” She admits, however, that Sanford wanted a roadway, that he offered to open up the road at his own expense and build the fence and says, (quoting), “I consented to allow the road to be opened under those conditions, that he bear all the expense of making a good fence so as to fence the farm on that side.” Being inquired of whether there was any “consideration,” she answered: “Well, there was no money paid in the matter . . . nothing.more than the building of the fence and opening of the road.” She says there was nothing said about the time the road was to continue.

The land having been devised to her by her father’s will, probated in 1895, she sold it to one Bur-ford by a deed of April 18, 1896, by a description including the lane. Burford held the land for three months and sold it to one Clippard by a similar deed. Clippard owned the land about a year and transferred it back to Burford. Burford then held it about two years and conveyed to the defendant Kern.

Burford was not put on the stand, but Clippard was by defendant. He testified that the corners of tract A were pointed out to him before he bought; that he saw the lane in use; that it was a fenced lane then open and being traveled by Sanford and his tenants; that the corners of tract A included the Jackson- and-Pocahontas public road, as well as the lane, and there was no reservation in his deed in regard to either; that when he sold hack to Bnrford the lane was still open and being used just as he saw it before he bought.

The defendant Kern testified in his own behalf to the effect that he bought the land from Burford in 1899 and moved on it; that Burford pointed out the corners to him; that these corners included the lane and that he understood he was buying the lane. He admits, however, that Burford told him “Mr. Sanford used that lane.” He testified that about three years before the trial (Sanford then having used the lane for several years during Kern’s ownership) Sanford wanted to buy a road on his, Kern’s, south line, and in that connection, he, Sanford, (quoting), “told me I could close up that lane over there, it belonged to me anyhow.” As we gather, this last conversation was after the road had been obstructed and litigation was brewing or had commenced. On cross-examination he admitted that Sanford’s proposition relating to closing up the lane was conditioned on Kern’s selling him a shorter and more convenient road on the south side of tract A. He further admitted that when he bought from Burford, Burford. told him that Sanford had “fixed a fence through there and is using the road;” further that Sanford had tried to sell to him before he bought from Burford and had told him in response to his question, how he would get out of there, that he, Sanford, “claimed the road,” and that the lane so claimed by Sanford was open until he, Kern, and Flynn closed it. He also admitted that while his understanding was that he got the lane because his deed included it in the description of the land, yet that the same description included the Jackson-and-Pocahontas public road. Further along he admitted that when Sanford talked about buying a road on the south, he, Sanford, told him that if he “shut up the lane, he would make trouble for him,” and reiterated on cross-examination that Mr. Burford had told him before he bought his-land, that Sanford had that fence put there and had the right to that lane; that Sanford told him before his purchase from Burford, that he, Sanford, had the right to get out through the lane.

Being on the stand in rebuttal and under cross-examination by defendant’s attorney, Mr. Sanford reiterated that he had all along asserted his right to the road, and had claimed to own it as against English, Mrs. Baldwin, Burford, Clippard and Kern.

Plaintiff asked and was refused instructions based on his theory of the law. Defendant asked none. Considering the instructions immaterial to a decision here, they are omitted.

Any other necessary facts will appear in the opinion.

(a) The law of easements is applied to work out justice in cases differing so widely in essential elements that it may be well at the outset to get at the concrete case here by a process of exclusion. For instance as shown by the record, this is not a case where an easement, resting in a mere permissive license without any consideration passing and having for its basis a, mere act of neighborly good will, is sought to be enforced. Nor is it a case where an easement is not claimed as of right and where the user was not of right. Such cases, therefore, as Pitzman v. Boyce, 111 Mo. 387; Field v. Mark, 125 Mo. 502 and Anthony v. Building Co., 188 Mo. 704, are not in point.

Plaintiff’s case at bottom rests on prescription, that is, on adverse user as of right, openly and uninterruptedly, for more than ten years. The blunt question, then, is: Do the record facts make such a case? We think so.

(b) ' In the first place Sanford’s claim to an easement originated in contract. He was not an interloper, squatter or mere trespasser. This is important as furnishing a foundation for a claim of right, because the Statute of Limitations, borrowed to effectuate prescriptive rights, can only be invoked by a person claiming by right and not by wrong. No flux of time will ripen a bad title into a good one unless possession is blessed by a claim of right.

In the second place, the contract was executed, that is, performed and the contract consideration passed — the lane was opened, the fence built and accepted.

In the third place, the consideration was adequate in law, viz., a fence built by plaintiff for the benefit of Mrs. Baldwin and a detriment suffered by Sanford by furnishing the material and outlay in building that fence in return for a benefit conferred on him, to-wit, a private way from his timber land to the Jackson-and-Pocahontas road. For aught appearing here, the consideration paid was equal or more than equal to the value of the strip of land, as prices- ranged in that region in 1889.

It is argued for respondent there was no benefit to Mrs. Baldwin, that the whole affair from end to end was simply the gracious bounty of a neighbor- — a permissive license revocable at will. But the record does not permit us to take that view of it. Her rents and profits were in danger from the Flynn stock. The rental value of her holding evidently was impaired by a bad partition fence. Now, breaehy stock and a low or broken line fence are the devil’s own invention for discords and squabbles between coterminous proprietors — a fecund womb of a miserable brood of infelicities, vis., bad blood, bickering, bloodshed, fuss, litigation. In this case some of those things were present. Accordingly, for the good of her pocket and peace of mind, she gave the roadway in return for a fence, presumably horse-high, bull-strong and hog-tight, as the saying runs.

Again, under that contract fully performed, possession was turned over to Sanford. That the neighbors used this open lane when they liked in no way Impairs his possession of right. Such acquiescence on his part did not destroy his easement. Such use is usual and is recognized by our statute, in ways of necessity. [R. S. 1899, sec. 9468.] The possession Sanford took and held was not the possession a proprietor would take and hold of his meadow, cornfield or dooryard, but it was the possession usually taken of an open lane, cut off on both sides by fences, bridged where necessary, kept fit for use by annual repairs and used continuously by him, his tenants and those having business on his land, as his means of egress and ingress— his market road. It was the best possession the subject-matter was susceptible of. The user was confessedly open, notorious, continuous and without a word said or finger lifted in antagonism to it, until defendant, after the flight of fourteen years, built a fence across the lane and visibly asserted a hostile right to the strip.

(c) Was Sanford’s use under an adverse claim of right? We think so. The reason of the thing is that a claim of right, in essence, rests in intent. As there is no window through which we may look into the soul of a man and use our eyesight in spying out his intent, the proof of intent, ex necessitate, rests in acts and words. There may be eases in which acts speak louder than words — where the thing done drowns out the thing said. But in this case the acts of Sanford unmistakably point to a claim of right in the way. So, the things said by him point in the same direction. He claimed the road as of right whenever a question was raised relating to his right during the time he was using it. Not only so, but his claim was recognized by the owners of tract A. We find no difficulty with the case on that score and unless something else is in the way it must be said that he asserted his adverse right to the road by acts and words continuously for more than ten years, accompanied by uninterrupted possession for that time.

That a prescriptive right is, by a fiction of the law, deemed to rest in a grant, or lost deed, as the old learning teaches, is of small significance in modern jurisprudence; for it is settled law that the right to a way by prescription may be established in the same way as the title to land, to-wit, by adverse possessions, under a claim of right uninterrupted for ten years.

Says Goode, J., in a well-decided case (Power v. Dean, 112 Mo. App. l. c. 297): “As she executed no deed, the argument is that an easement, or right to use the strip as a private way, was never granted, because such a grant must be by deed. This proposition is sound too. But an easement in the nature of a private way may be acquired by prescription or ten years’ adverse use, which is equivalent to a grant. In most cases the law allows the prescriptive right on the fiction of a prior grant of which the evidence is lost. In this case a fictitious grant need not be presumed, as there is proof of a futile attempt at an actual grant. Old theories about prescriptions and presumed grants, though still alluded to in opinions for the sake of seeming consistency, don’t have much force in modern law. The question of a prescriptive right depends on adverse use for the limitation period. [House v. Montgomery, 19 Mo. App. 170, 179; Pitzman v. Boyce, supra.] A right to the private way acquired by adverse use is a vested right and not a license. [Autenrieth v. Railroad, 36 Mo. App. 254, 260.]”

The learned judge’s formulation of the law is acceptable to us and is in accord with modern doctrine.

(d) There is a further doctrine comporting with reason and justice and recognized as clear equity, viz. t that a license to use a way or an easement though without consideration at its inception, may not be revoked at will where, from the very nature of the license, the licensee was expected to go to great expense in order to enjoy it and where that expense has been incurred. In such case equitable estoppel arises and the relations of the parties may not be severed and the easement destroyed at the whim and by the act of the licensor alone — they must be severed, if at all, on equitable principles. [Railroad v. Railroad, 222 Mo. 461; Baker v. Railroad, 57 Mo. 265; Fuhr v. Dean, 26 Mo. 116; Chiles v. Wallace, 83 Mo. l. c. 92 et seq.; School District v. Lindsay, 47 Mo. App. 134; State v. Macy, 72 Mo. App. 427; Gribson v. St. L. A. and M. Assn., 33 Mo. App. 165; House v. Montgomery, supra.]

(e) In arriving at the conclusions announced, we are not unmindful that Mrs. Baldwin did not have the legal title to the land at the time she contracted with Sanford. She was in possession, clothed with the powers of an apparent owner and exercised those powers by leasing the land to tenants and enjoying the usufruct. We think she was allowed to deal with it by her father. He seems to have had knowledge she was dealing with it by contracting in relation to it and this with his acquiescence and consent. The evidence is clear that Sanford thought he was dealing with the owner when he contracted with her. Burford, C'lippard and Kern are subvendees holding under her. They bought the land with notice of Sanford’s claim. We deem it sound doctrine that they were put upon inquiry when they saw an open fenced lane in actual use by Sanford and his tenants and are charged with the facts inquiry would reveal. But, and this is. closer to the point, Kern had actual notice of Sanford’s claim. Burford told him of it and Sanford told him of it before he bought. Under such circumstances the running of the Statute of Limitations flowed on in an even, uninterrupted current. Under the facts of this record it would run against English, had he lived and sued after fourteen years and, a fortiori, would it run against Mrs. Baldwin and those claiming under her.

We hold the ten years ripened Sanford’s right to an easement and that it became vested in him.

The premises considered, the judgment is reversed and the cause is remanded with directions to enter one establishing plaintiff’s easement in the strip of land described in the petition and decreeing that defendant remove his obstructions out of the way. The case made is not directed to the proof of any amount of damages. The judgment, therefore,' should be entered for nominal damages of one cent and costs.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    RETTA RUTTER et al., Appellants, v. JOHN F. CAROTHERS et al.
    Division One,
    November 27, 1909.
    1. QUIETING TITLE: Cotenants: No Adverse Claimant. An action to quiet title will not lie unless there is an adverse claim asserted by defendants. So that in a suit to ascertain and determine the title, plaintiffs are estopped to take the position that the land belonged to the father of plaintiffs and defendants, that it was mortgaged by him and at the foreclosure sale bought in by defendants, and that as such purchase inured for the benefit of all, so also was their possession the possession of all; for that theory of friendly and beneficial cotenancy runs counter to the theory upon which plaintiffs bottom their action. They must recover, if at all, upon the theory of an adverse holding.
    2. PLEADINGS: Agreed Statement: Determinative of Trial Theory. The pleadings are necessarily a substantial part of the cause of action submitted on an agreed statement of facts, and the trial theory must be read into and illuminate the words of the agreed statement. The cause cannot be submitted and tried, and a judgment rendered upon one theory and when the judgment is challenged and set aside another judgment be rendered and re-established on a different theory outside the pleadings.

      3. LACHES. Though the answer pleads laches as a defense, yet if laches is not admitted by the pleadings and there are no facts in the agreed statement on which to base laches, the plea will not be allowed.
    4. LIMITATIONS: Under Disability: By Heirs: Three Years. Persons under legal disability have ten years, at all events and under any circumstance, in which to maintain suit for land, and an additional time in certain emergencies and contingencies. “The time in this article limited,” used in section 4262, Revised Statutes 1899, is ten years, and is to be construed in connection with the words in section 4265 which ordains that a person under the specified disability may bring his action “after the time so limited, and within three years after such disability is removed.”
    B. -: '-: Ten Years: By Heirs Within Three Years. If the disability has existed for less than ten years, the person laboring under such disability must institute his suit within three years after the removal of the disability, unless said three years, together with the period of disability, are less than ten years, in which event such person is entitled to the unexpired portion of the ten years. So that, where one of the sons of the deceased landowner bought in the land at a foreclosure sale on May 12, 1898, and plaintiffs’ mother, a daughter of said landowner, then covert, died on July 25, 1898, a suit brought by plaintiffs on September 2, 1904, against said son, to establish their right as cotenants to share in the benefits of said purchase on the theory that defendant’s purchase inured to all the heirs, was not barred by limitations simply because they did not bring their suit within three years after their mother’s death. They and their mother were entitled to ten years in any event — that is, ten years after the cause of action accrued on May 12, 1898; and their suit, though not brought within three years after her death, but within ten years after the cause of action accrued, was not barred.
    Appeal from Shelby Circuit Court. — Rem. Nat. M. Shelton, Judge.
    Reversed and remanded (with directions).

      Dysart & Mitchell and R. A. Wright for appellants.
    (1) The judgment rendered for the plaintiffs was right and proper, and it was error to grant defendants a new trial. (2) The defendants seek to hold the land in question exclusively, solely on the Statute of Limitations. It is not possible for one to acquire title to real estate under any section of our Statute of Limitations, without an adverse holding for some length of time. Our statute is based upon the fact of an adverse possession and claim of ownership. The answers of the defendants do. not allege and count upon an adverse holding, but simply, that the plaintiffs failed to sue within three years after the death of their mother. Nor does the agreed statement of "the facts show an adverse holding, or make any claim of an adverse holding. It follows that the defendants cannot recover on the Statute of Limitations. A trust estate could not be converted into an adverse holding without an express renunciation of the trust, with notice to the beneficiary. McCune v. Goodwillie, 204 Mo. 306; Coberly v. Ooberly, 189 Mo. 16. (3) ¡It is not possible in this State for one to acquire title to real estate by limitation, without an adverse holding for a period of ten years. In case of certain disabilities, the time may be much longer, among which disabilities are insanity, infancy and coverture. The privileges provided for the unfortunate, the weak and the incapable, were not intended for their prejudice, but for their benefit. These privileges were not intended to limit the term of ten years, but to increase it, when disability existed. This is the evident meaning of sections 4262, 4265 and 4267, R. S. 1899, which must be construed together. And this has been the uniform ruling of this court in construing section 4267. Gray, v. Yates, 67 Mo. 603; DeHatre v. Edmonds, 200 Mo. 246; Robinson v. Allison, 192 Mo. 371; Graham v. Ketcham, 192 Mo. 15. (4) It is conceded that plaintiffs had no cause of action until after their mother’s death, which death occurred on the 26th of July, 1898. This suit was commenced on the 2d day of September, 1904, only six years after the death of the mother. The plaintiffs had four years to run before the ten-year period was up. The defendants’ possession, even if adverse, covered only six years. If the mother had lived four years longer, then the plaintiffs would have been entitled to three years in addition to bring their suit — three years in addition to the ten. The deed of trust was foreclosed on the 12th day of May, 1898, and the mother of the plaintiffs died about two months thereafter. It follows that plaintiffs are not barred by any section of our Statute of Limitations, even conceding for the argument’s sake, that defendants were holding the premises adversely for the period of six years next before' the commencement of this suit. This sale concluded the rights of the widow, she having joined in the deed of trust. When the defendants, John F. and James A. Carothers, discharged the lien and bought in the outstanding title, they took the legal title in trust for all the tenants in common, and held the premises, in trust for all the heirs of the ancestor, James H. Carothers, subject to be reimbursed for the money paid by them in discharge of the lien. That the defendants held the legal title in trust for all the heirs is conceded by the agreed statement of the facts, and is evidently the law. The doctrine is elementary. Perry on Trusts (5 Ed.), p. 164, sec. 127 and notes; Rector v. Gribbons, 111 U. S. 291; Hinters v. Hinters, 114 Mo. 26; Allen v. DeG-roodt, 105 Mo. 442; Dillinger v. Kelly, 84 Mo. 561; Picot v. Page, 26 Mo. 421. See McCune case and Coberly case, supra. This trust estate could not be converted into an adverse holding, without a positive and express repudiation of the trust, with notice to the cestui que trust. And the evidence of such repudiation and notice' to the beneficiaries must be “clear and unmistakable.” 2 Perry on Trusts (5 Ed.), pp. 552-559, secs. 863 and 864; lb., p. 563, sec. 866; Blackaby v. Blackaby, 56 N. E. 1053; Kohle v. Hobson, 215 Mo. 213.

      Y. L. Drain for respondents.
    (1) Plaintiffs are not entitled to the relief asked for, they having not elected within a reasonable time to treat the defendants as trustees, and have therefore waived their rights as to the subject-matter. Burnes Estate v. Ayr Lawn Co., 82 Mo. App. 66; Cockrill v. Hutchinson, 135 Mo. 67. (2) It is conceded by the petition that defendants claim adverse and exclusive title to the land in controversy. In any event the fact that John F. Carothers purchased this -land at foreclosure sale, took a deed therefor and had the same placed of record, and thereafter sold a portion of it to his brother, and the further fact that they have controlled it exclusively ever since the death of their father, fixes the status of the parties and makes the defendants adverse claimants. Campbell v. Laclede Gas Co., 84 Mo. 352. (3) This action is barred by the Statute of Limitations, the same having been pleaded in defense. It is conceded that the mother of plaintiffs was a married woman at the time of her father’s death, and so remained until her death. Her right to sue descended to her heirs and under the provisions of Sec. 4267, R. S. 1899, this right must be exercised within three years after her death. Her death occurred on July 26, 1898; the right to bring this action by her heirs terminated on July 27, 1901, and this suit having been begun on September 2, 1904, the same is barred by the statute. R. S. 1899, secs. 4265-4267; Fairbanks v. Long, 91 Mo. 636; Reed v. Painter, 145 Mo. 342; Rosenburger v. Mallerson, 92 Mo. App. 27; Robinson v. Allison, 192 Mo. 366; Smith v. Settle, 128 Mo. App. 379.
   LAMM, P. J.

In a suit under section 650 to declare and establish title in 176 acres of land in Shelby county, judgment went for plaintiffs for an undivided •one-third interest, subject to a charge of $383 in favor of defendants. Afterwards a new trial was awarded on defendants ’ motion. From that order plaintiffs appeal.

Summarized, the petition charges and the agreed statement of facts shows that James H. Carothers was twice married. His first wife died. By her he had one child, Alvira. Alvira married Chatman Speight and died leaving children, married and unmarried, minors and adults, who, with their father, Chatman Speight, are parties plaintiff. By his second wife, Millie G., he had two sons, John F. and James A., who with Millie G., are parties defendant. On an undisclosed day in 1892, James H. Carothers died seized of the southeast quarter and the east 16 acres off of the east half of the southwest quarter in section 36, township 58, range 12, in Shelby county — all in possession of defendants.

It is charged in the petition that defendants claim title to the exclusion of plaintiffs and are seeking to exclude and bar plaintiffs from any right, or interest in the land; that defendants’ claim of exclusive title is based upon a purchase made by the defendant John F. Carothers at a trust deed sale, under a defaulted trust deed executed by his parents James H. and Millie G.; that if such is the basis of defendants’ claim, it is not valid for that the children of Alvira are entitled by inheritance and descent to a one-third undivided interest in the real estate and that the purchase by John F. at foreclosure sale inured to the benefit of all the heirs of James H. Carothers as tenants in common.

The prayer of the petition was that the court declare and quiet the title as between plaintiffs and defendants and ascertain and determine the title and interests of the parties respectively and define and adjudge the several interests, in such real estate and that defendants and each of them be forever barred from claiming any right, title or interest in the part adjudged to plaintiffs; that the cloud upon their title be removed and “for such other relief as they may appear to he entitled to in the premises.”

The answer of Millie G-. admits her marriage with James H.; that she is his widow and that he died seized of the land described; and charges that Alvira, the mother of plaintiffs, died in July, 1898; further that plaintiffs have no right to maintain this action because of section 4267 of the Statute of Limitations. As a further defense she pleads, generally that plaintiffs-have been guilty of such laches as prevent a recovery.

Defendants John F. and James A. file a joint answer, admitting that James H. Carothers died seized of the land, but they deny plaintiffs have any interest or rightful claim in the premises in that, they say, James H. and Millie, his wife, executed a deed of trust on the land securing to the Jarvis-Conlding Trust Co. borrowed money, which trust deed was spread of record; that after the death of James H., the note evidencing said borrowed money and so secured was assigned to one Whitby; that on May 12, 1898, said deed of trust was duly foreclosed; that John F. Carothers purchased at said foreclosure sale for $1,400.50 and received a trustee’s deed on the payment of said sum; that John F. afterwards conveyed an interest in the land to James A.; that the right, if any, of plaintiffs to bring this action terminated in three years after the death of their mother in the month of July, 1898. Wherefore, they plead the three-year Statute of Limitations, to-wit, section 4267, Revised Statutes 1899, as a defense, and that plaintiffs have been guilty of laches abating the suit.

The trial was to the court as in equity and (as said) was upon an agreed statement of facts. In addition to the facts admitted, already set forth, it stipulated that rent offset betterments; that if the court rub ed against defendants on law questions tenderd by their answer, then a decree might go adjudging one-third of the land in controversy to plaintiffs, subject, however, to a charge of $383 to be paid defendants by them (i. e. one-third of a mortgage debt presently explained)— nothing in such stipulation to preclude either party from appeal.

It was further agreed that James H. Oarothers died seized of the real estate in controversy subject to a recorded mortgage (viz.: said deed of trust) given by himself and wife to secure a note therein described, which mortgage was foreclosed on the 12th of May, 1898; that at such foreclosure sale John F., one of the defendants, purchased the land; that afterwards John F. conveyed an undivided one-half interest to James A.,.his brother and codefendant; that the amount of the mortgage debt at foreclosure was $1,150; that Alvira Speight and the defendants John F. and James A. were the only children of James H. Oarothers; that Alvira died July 26, 1898, leaving the plaintiffs as her only heirs; that the foreclosure was not made until nine months after the death of James H.; that the present suit was filed September 2, 1904; that Alvira was, at the time of the foreclosure and up to her death, a married woman; that certain of her children are minors who sue by their next friend; that the trustee’s deed to John F. is dated May 12, 1898, and is duly of record and that the purchase price was $1,400.50.

It was further stipulated that by a proper proceeding in the probate court of Shelby county, the personal estate of James H. Oarothers was found to be the absolute property of the widow and that administration was dispensed with. Such is a summary of the record.

I. Assuming, as a postulate, that as a general rule tenants in common bear a confidential relation to each other, that the possession of one is the possession of the others and that the protection of the common title by one cotenant in the payment of taxes or other liens or a purchase at execution or foreclosure sale, on the one hand, creates a common burden on all the tenants in common and, on the other hand, creates a common benefit to be shared by all, and assuming that such purchase as a general rule is presumed to be-for the benefit of all (Hinters v. Hinters, 114 Mo. 26; Cockrill v. Hutchinson, 135 Mo. 67), it is argued by plaintiffs’ counsel that since the agreed statement of facts does not in terms assert an adverse holding or claim on the part of defendants as against plaintiffs, therefore, there arises a prima- facie presumption that said purchase of John F. Carothers inured to all the heirs of James H. Carothers, and (they say) the judgment rendered in the first instance in favor of plaintiffs can well stand on that proposition, if on no other. But, under the facts of this record, we deem that contention unsound. Plaintiffs are estopped to take that position; for it runs counter to the very theory upon which they bottomed their case and on which they invoked the aid of the law. Observe, there were no grounds upon which an action to quiet title would lie unless there was an adverse claim asserted by defendants. Accordingly, the petition alleges plaintiffs’ ouster by defendants, and the suit proceeds on the theory of an adverse claim and hostile possession by them. So, the answers are in the nature of a confession and avoidance, viz., admitting the original cotenancy, but alleging the exclusion of plaintiffs from possession and from title and interest under a hostile claim predicated of a purchase at the foreclosure sale. On that theory the ease was brought and tried and it will not do to read such theory out of the agreed statement of facts. The pleadings are necessarily a substantial part of the cause submitted on an agreed statement, and the trial theory must be read into and illuminate the words of the stipulation. To rule otherwise would be the same as to allow A to recover a judgment against B on one theory and, when the judgment is challenged and set aside, allow A to re-establish the judgment on a different theory and one outside of the pleadings, which, in this case, would be the theory that there was no occasion for any suit to quiet title and no use of any judgment at all in that behalf.

As it is an unbending rule of appellate practice that a cause must proceed above on the same theory it was tried below, and that a judgment is the conclusion of the law on the pleadings and facts, the point is ruled against plaintiff's.

II. It is argued here that plaintiffs were guilty of such laches as bars recovery. Attending to that contention, it will be observed that though the answers plead laches as a defense, yet laches is not admitted by the pleadings and there are no facts in the agreed statement relating to laches and on which to predicate such defense. Laches gives rise to an equitable doctrine, free from artificial or fixed rules, having regard to the relations of the parties to each other and to the subject-matter to be applied to each case in accordance with its own particular circumstances in order to reach substantial justice — for instance, where plaintiff lies by an unreasonable length of time awaiting a rise in land or some future event to determine his course, or where by acquiescence or by sleeping upon his rights he creates the belief in others that those rights are abandoned whereby he influences them to act on such belief, or where something has intervened whereby the party asking relief would obtain an unconscionable advantage if the relief were given. Under these or like conditions, where there is some natural justice behind the claim, the defense of laches is allowed independently of the Statute of Limitations. [Cockrill v. Hutchinson, 135 Mo. l. c. 75 et seq.; Stevenson v. Smith, 189 Mo. l. c. 446 et seq.; Landrum v. Bank, 63 Mo. l. c. 56 et seq.; Bucher v. Hohl, 199 Mo. l. c. 330.]

The ease at bar being barren of essential facts upon which to predicate the defense of staleness or laches, the point is ruled against defendants.

With the foregoing subsidiary questions at rest, we confront the main proposition in the case.

III. The foreclosure was on May 12, 1898,- and the trustee’s deed bears date that day. Alvira died on the 26th day of the following July. Suit was brought by her children on September 2, 1904 — that is, more than three years after her death but. within ten years of the time a cause of action accrued to Alvira. With the record in this condition, learned counsel for defendants insists that the cause of action accrued to Alvira on May 12, 1898, and existed in her favor until her death on July 26,1898; that (she being then under disability) her heirs, under Revised Statutes 1899', section 4267, had three years after her death, and no more, to sue and establish their rights in the property. Learned counsel for plaintiffs contend, contra, that the Statute of Limitations would not run for ten years after May 12, 1898, and that the three-year provision of the statute must be construed so that it will not impinge upon or destroy the ten-year provision, which latter, they say, is .a general rule of statutory law relating to limitations on real actions.

A solution of the problem thus presented calls for a construction of certain sections of our Statute of Limitations relating to real actions, viz., sections 4262, 4265 and 4267.

The general language employed in these sections creates obscurity and sometimes makes their construction exceedingly troublesome when the courts are called upon to apply them to a given case. The trouble is accentuated not a little by the use of unhappy expressions on the part of the lawmaker. We have come to the conclusion that the contention of defendants’ counsel is unsound and that an equitable construction of the statute (by which we mean an interpretation of the written law in accordance with its spirit and true intendment) sustains the position of plaintiffs’ counsel. This because:

(a) Conceding that courts may not enlarge the written law by addition or diminish it by writing exceptions into the law obviously absent from the legislative mind; conceding, moreover, that the law must be obeyed notwithstanding the apparent rigor and hardship of its application (ita lex scripta est); conceding, withal, that if the intent of the lawmaker is plain and single then courts are relieved from the burden of finding a reason for the law (stat pro ratione voluntas); yet, the practical administration of the law through the courts would quite miss refined and elevated justice in many instances if - the naked and cold words of the statute were not warmed into life and good sense by seeking, finding and reading into the law its true spirit and intendment. Not only so, but obviously this delicate and high judicial task is not to be put to one side because it may be one difficult of performance; for in law, as in life, the more difficult the task imposed by duty, the more occasion for caution and pains.

“The construction of all statutes of this state” (says the lawmaker, B. S. 1899, sec. 4160) “shall be by the following additional rules, unless such construction be plainly repugnant to the intent of the Legislature or of the context of the same statute” (here follow certain rules). Beferring to the exceptions just mentioned, the Legislature in a prior section (4159) again points to the judicial duty and power of construing statutes by certain fixed rules, “ unless there be something in the subject or context repugnant to such construction.’’ That rule of interpretation, as has been often said in the venerable language of great judges, is but the application of the divine injunction that the letter killeth while the spirit maketh alive. Accordingly, from the Year Books to this Year of Grace, those are recognized canons of construction which ordain that the naked letter of the law must gently and a little give way to its obvious intendment; that those who interpret the laws must not impute injustice to the lawmaker by so interpreting his language as to unnecessarily produce harsh and unreasonable results, or impute to him a disposition callous to natural justice. We must, say other rules of interpretation, construe all statutes relating to the same subject-matter in pari materia, throw the light of the context upon the passage to be interpreted and so rule, if possible, that other provisions of the law are not destroyed or made meaningless, or repugnant, thus marring the symmetry of the whole body of the enactment. [Perry v. Strawbridge, 209 Mo. l. c. 636 et seq.; Keeney v. McVoy, 206 Mo. l. c. 64 et seq.]

It may not be amiss to remind ourselves of a general proposition applicable to statutes of limitations. It has been said that such statutes are as beneficial as any to be found in the books; that they rest upon sound public policy and tend to the peace and welfare of society; that they are construed so as to effectuate the intention of the Legislature, although they in individual cases may produce hardship. While one obvious purpose to be subserved is repose, yet the philosophy of these statutes connects itself with the infirmities of human memory. Accordingly, it has been well said that: “If parties will not settle their business matters within reasonable periods before human testimony is lost and human memory fails, on pain of losing the right to a, remedy thereon, not the law, but the party, is responsible for the hardship entailed.” [Wood on Limitations (3 Ed.), sec. 4.]

Giving effect to the foregoing general observations by holding in mind the rules of interpretation set forth, a scholar in statutory law or in general jurisprudence would not expect to find in the Statute of Limitations a rule of written law dealing with a person under the disability of infancy or other disability, or the heirs of those under such disability, more harshly than it dealt with others not so handicapped. Conceding that such scholar would approach his investigation charged with knowledge that the policy of the law does not allow the cumulating or tacking of disabilities, yet he would be astonished to find that a Legislature had given to a person not under disability, ten years to bring his real action, and if he die within the ten years the same law gave his heir what was left of the ten-year term to sue, and that the same Legislature had granted to a person under disability the grace of twenty-four years in which to sue if the disability continue so long, or three years after the disability was removed, if removed after ten years and within the twenty-four; and then had faced about and had said to the mother or infant child under disability: If you are so unfortunate as to die presently after your cause of action accrued, say, in a day, a month or a year, your heirs (themselves peradventure under disability) shall have only three years plus the day, the month or year you lived after your cause of action accrued. What is this but supplementing the terrors of death with a heavy burden at the hands of the law — a burden not laid on the shoulders of others more fortunate? Yet to that complexion we must come 'if we adopt the theory of defendants’ counsel. If Alvira had been a man or unmarried (r. e., swi juris) she. and her heirs in case of her death, would have ten years in which to sue after her cause of action accrued. But being a woman and married her heirs (some of them minors), it is contended, have only three years after her death in which to sue, which, added to the days between May 12 and July 26, 1898, make the total term of limitations allowed in the case at bar three years, two months and fourteen days instead of ten years.

A bare statement of the proposition shows the harsh, inequality in such interpretation of the statute —a discrimination, too, against a class of persons the law holds in tender regard. It seems to me a court would be justified in hesitating and doubting much, and looking long and well to the reason and words of the law, before reaching that conclusion.

(b) Fortunately such conclusion is not a necessary one as will presently be seen.

Section 4262 reads: “No action for the recovery of any lands, tenements or hereditaments, or for the recovery of the possession thereof, shall be commenced, had or maintained by any person, whether citizen, denizen, alien, resident or non-resident of this state, unless it appear that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims was seized or possessed of the premises in question, within ten years before the commencement of such action. ’ ’

Contemplating an entry upon land in certain contingencies, the next section provided for commencing an action after entry and directs that an action must be commenced within one year after making such entry “and within ten years from the time the right to make such entry descended or accrued.”

Section 4265 reads: “If any person entitled to commence any action in this article specified or to make any entry be, at the time such right or title shall first descend or accrue, either within the age of twenty-one years, or insane, or imprisoned on any criminal charge or in execution upon some conviction of a criminal offense for any time less than life, or a married woman, the time during which such disability shall continue, shall not be deemed any portion of the time in this article limited for the commencement of such action or the making such entry; but such person may bring such action or make such entry after the time so limited, and within three years after such disability is removed-. Provided, that no such action shall be commenced, had or maintained or entry made by any person laboring under the disabilities specified in this section, after twenty-four years after the cause of such action or right of entry shall have accrued.”

Section 4267 (the one relied upon by defendants) reads: “If any person entitled to commence such action or to make such entry die during the continuance of any disability specified in section 4265', and no determination or judgment be ha'd of the title, right or action to him accrued, his heirs, or any person claiming from, by or under him, may commence such action or make such entry after the time in this article limited for that purpose, and ivithin three years after his death, but not after that period.”

Obviously section 4262 gives to. all persons sui juris or non sui juris, under disability or not, whether ancestor or heir, a main right, viz.: ten years in which to institute suit for the recovery of land or for the recovery of the possession thereof, said ten years commencing with the accruing of a cause of action. That section and the ensuing sections (with some modifications immaterial here) have been the statute law of this State for three-fourths of a century. Without any legislative direction to that effect that section and those following it would be construed together as relating to the same subject-matter, and so dovetailed together by interpretation as to make a symmetrical code. But we see the Legislature itself intended they should be construed together. They refer to each other in words. They are all found in article one of chapter forty-eight, Revised Statutes 1899. Section 4265 is plainly intended as a benefit to those under disability. It is a shield, not a sword. It does not shorten the ten-year rule prescribed- in section 4262 but adds something of value by tolling the statute in the interest of those under disability by ordaining that the time such disability shall continue “shall not be deemed any portion of the time in this article limited for the commencement of snch action.” The “time in this article limited” is ten years and section 4265 ordains that a person under the specified disability may bring his action “after the time so limited, and within three years after such disability is removed.” We think it obvious that section 4265 assumes that persons under disability have the ten years at all events and under any circumstances, but also have an additional time in certain emergencies and contingencies. If we did not construe the phrase, “after the time so limited and within three years after such disability is removed,” as perpetuating in any event the ten-year statute, we would have an absurd and unjust result easily put. For instance, if A, a married woman, has a right of action accruing to her on Monday and if on Tuesday she become discovert, she would have only three years and one day in which to sue, for her disability was removed on Tuesday and some of the words of section 4265 seem to require her to sue in three years after that event. But this interpretation “corrodes the bowels” of the text and, therefore, is vicious in taking no note of the words “after the time so limited,” which evidently refer to section 4262 giving to her and everyone else the general, plain, unlimited right to sue within ten years.

When we come to section 4267, we find the samé phraseology connecting that section with “the time in this article limited for that purpose.” While the language used lacks precision and the law is so unhandsomely written as to breed doubts and obscurities, as said, yet if we read the ten-year rule into sections 4265 and 4267 to the extent that it is to be preserved as a general statute of limitations with (in named contingencies) certain extensions and benefits to those under disability, we think in that way some of the obscurities will be better resolved than in any other.

(c) The foregoing conclusion lies well with the trend of the judicial mind. In Gray v. Yates, 67 Mo. 601, this court announced that: “If the disability has existed for a period of,time less than ten years, the person laboring under such disability must institute his suit within three years after the removal of the disability, unless said three years, together with the period of the disability, are less than ten years, in which event such person is entitled to the unexpired portion of the ten years; for all persons are entitled to ten years in any event. When a party has the three years given by the fourth section, and the whole period of the ten years given by the first section, the right of action or of entry is barred. In other words, when ten years have elapsed since the right of action accrued, and three of those years have been free from disability, the right of entry is- barred. A like construction has been given to a similar statute in New York in the following cases: Smith v. Burtis, 9 Johns. 180; Jackson v. Johnson, 5 Cow. 93, 94; Willson v. Betts, 4 Denio 208, 209.”

The Gray case seems never to have been overruled or criticised but, contra, has been frequently cited with approval.

DeHatre v. Edmonds, 200 Mo. 246, was a troublesome case and the different provisions of the Statute of Limitations on real actions were held under review. The exposition there given of those provisions was cautious, painstaking and full. Our learned Brother Graves, speaking for us all, in discussing Robinson v. Allison, 192 Mo. 366, quotes liberally from that case but differentiates and discriminates. Referring to its exposition of section 4267, he said: “Of course, if the limit of three years named in this section added to the time already run from the date of the accrual of the right to sue, would make the time less than the ten years named in section 4262, the party would have the full ten years given by that section, but no more. On the other hand, if the three years served to extend the ten years, the party entitled to sue would have the full benefit of the three years, but no more.”

In the Robinson case, supra, and in Read v. Painter, 145 Mo. l. c. 354, there are remarks, somewhat obiter, we think, and by way of argument, seemingly running counter to the doctrine announced in the Gray and the DeHatre cases; But it would seem those remarks were not necessary; for, as we read those cases, in both of them the integrity of the ten-year rule of limitations was preserved.

The premises considered, we conclude the judgment entered below on the pleadings and agreed statement of facts was right. Hence, it was error to grant a new trial. Accordingly, the order granting one is reversed and the cause remanded with directions to overrule that motion and reinstate the original judgment in favor of plaintiffs.

All concur.