author: GRAVES, J.

text:
    DeHATRE et al., Appellants, v. LUCY T. PENN EDMONDS et al.
    Division One,
    December 22, 1906.
    1. LIMITATIONS: Descent Cast While in Adverse Possession. Where land was inherited by a married woman and was at the time it was inherited by her in the adverse possession of others, the Statute of Limitations began at once to run against the whole estate, both against her and her husband. There were not two estates inherited, one a freehold by him and another a remainder by her; there was only one estate cast, and out of that the law carved a curtesy for him, the title remaining in her, but that the law did not do until descent cast.
    2. -: -: Facts Stated. A testator died in 1857, having by will given land to his daughter Sallie, an insane person, whose husband Thomas soon afterwards conveyed the land to defendant’s father, who also about the same time bought the interest of four of S'allie’s children, and entered into possession, and he and defendant have ever since been in adverse possession. Thomas died in 1863, and Sallie in 1871, leaving a daughter Martha Ann who had refused to sell her one-fifth interest to defendant’s father. Martha Ann was married and had children in 1857 when the will went into effect, and her then husband died in 1901, and she in 1896, and this suit is in ejectment by her children. Held, that the Statute of Limitations began to run in 1871, and plaintiffs are barred.
    3. -: -: Accrued Right to Sue: Insane Person: Tacking Disabilities. The right to sue for possession of the land accrued -to Sallie, plaintiffs’ grandmother, upon the death of her husband Thomas in 1863, and although the Statute of Limitations did not then begin to run as to her, since she was insane, and although Martha Ann was then a married woman, her disability could not be tacked to the disability of her mother Sallie. There can be no such- thing as a cumulation of disabilities.
    4. -: -: -: insane Person: Right of Descendants: Statute: Three Years. The right to sue having accrued to one who was at the time insane, her legal descendants, although laboring under legal disabilities at the time of the death of such insane person, are not protected by the statute (see. 4265, R. S. 1899). The Statute of Limitations did not run against her, but it did begin to run against her heirs at .her death, whether they were under legal disability or not, and unless they began suit within three years after her death (unless the three years would make the time less than ten years after the right to sue accrued to her) they are barred by section 4267, Revised Statutes 1899.
    5. -: -: -: -: Meaning of Statutes as a Whole. Under our Statute of Limitations (secs. 4262, 4265, 4267, R. S. 1899) the right to sue for land is barred in ten years, except as to persons under disabilities mentioned (minority, insanity, imprisonment, marriage), and they are barred in twenty-four years whether disabilities have been removed or not. But if before the twenty-four years have expired the person under disability dies and to whom the right of action first accrued, then his or her heirs can sue within three years after death of such ancestor, but not afterwards, unless such death occurred more than three years prior to the expiration of the ten-year limit, in which event the heir can bring the suit at any time within ten years after the date the right of action first accrued to the ancestor.
    6. -: -: Thirty-Year Statute: Taxes. Where the right to sue for possession of land patented in 1829 accrued to a person who was then, because of insanity, under legal disability, and thereafter it was not in her possession or that of her daughter who upon descent cast was under legal disability, being a married woman, but was for thirty consecutive years after the right to sue first accrued in the possession of defendant or her ancestor, neither the said daughter nop her ancestor nor her descendants having paid any taxes thereon during that thirty years, the suit of such descendants, if not ■ begun within one year after the expiration of such thirty-year period, is .barred, and the title vests in defendant. The disability of the’ daughter did not relieve her of the duty to pay the taxes. That duty first devolved on her ancestor, to whom the right to sue accrued. The statute does not make any legal disability an exception.
    Appeal from St. Louis County Circuit Court.— Hon. Jno. W. McElhinney) Judge.
    Affirmed.

      O. J. Mudd, Robert Shackelford and George W. Wolff for appellants.
    (1) (a) Even if Penn, after death of Tom Withington, held adversely to Sallie Withington, it could not start the running of the statute until Sallie’s death, because of her insanity. R. S. 1879; sec. 3222; State v. Macey, 67 Mo. App. 326; Landers v. Perkins, 12 Mo. 259 ; Burdette v. May, 100' Mo. 19; Quick v. Rufe, 164 Mo. 413; Dessaunier v. Murphy, 33 Mo. 184. (b) Nor did the appointment of a guardian over Sallie start the running of the statute against her estate. Keeton’s Heirs v. Keeton’s Adm., 20' Mo. 543; Smith v. Ins. Co., 64 Mo. 330; Lindell R. E.. Co. v. Lindell, 142 Mo. 77; Wood on Stat. Lim., secs. 238, 239. (2) Upon Sallie’s death in 1871 she left five children, all of whom but . Martha Ann DeHatre had quitclaimed to Dr. Penn. Hence, her real estate devolved as to four-fifths upon Dr. Penn as grantee of the other heirs, and as to one-fifth upon Martha Ann DeHatre, but as Martha Ann at that time had a husband and children born of him, this one-fifth immediately vested in Martha Ann’s husband, Antoine DeHatre, for the period of their marriage, and after her death, for his life, remainder over to plaintiffs. And on this state of the title neither Martha Ann, during her life nor after her death plaintiffs, her heirs, became vested with any right of possession or of entry or of action against the disseizor until Antoine’s death in January, 1901. Harris v. Ross, 86 Mo. 100; Dyer v. Witler, 89 Mo. 81; Arnold v. Willis, 128 Mo. 145; Yanata v. Johnson, 170 Mo. 269; Hall v. French, 165 Mo. 438; Lessees of Thompson’s Heirs v. Green, 4 Ohio St. 216. (3) Nor was such devolution of the title affected by the adverse possession of Dr. Penn. Beaume v. Chambers, 22 Mo. 54; Stevens v. Chambers, 25 Mo. 325; Harvey v. Wiehman, 23 Mo. 115; Martin v. Trail, 142 Mo. 85; Cox v. Boyce, 152 Mo. 576; Arnold v. Willis, 128 Mo. 149; Dozier v. Toalson, 189 Mo. 552. (4) The estate and title of Antoine DeHatre was governed by the law as of the date of Sallie’s death in 1871, and remained unaffected by subsequent statutes changing the law. Arnold v. Willis, 128 Mo. 145; Yanata v. Jonhson, 170 Mo. 269. (5) Until Antoine’s death, neither Martha his wife, nor his heirs after her death, could bring any action for possession, because until the termination of the estate of the husband they had no right of possession. Gideon v. Hughes,'21 Mo. App. 528; Flesh v. Lindsay, 115 Mo. 1; Miller v. Kaessmann, 84 Mo. 330; Bains v. Bullock, 129 Mo. 119; Robards v. Murphy, 64 Mo. App. 90; Yanata v. Johnson, 170 Mo. 269; Lessee of Thompson’s Heirs v. Green, 4 Ohio St. 216. (6) The Statute of Limitations based on adverse possession never runs against persons whose estate does not, confer present right of possession and entry. Harris v., Ross, 86 Mo. 101; Bradley v. Railroad, 91 Mo. 498; Dyer v. Brannock, 66 Mo. 422; Dyer v. Wittier, 89 Mo. 90; Shumate v. Snyder, 140 Mo. 87; Hall v. French, 165 Mo. 442. (7) When Sallie died Dr. Penn’s adverse possession put the statute to running against Antoine De-Hatre, the owner of that estate in tlie land which carried the present right of possession. And when continued for ten years from its beginning and three years after Sallie’s death, barred his right of entry, destroyed his remedy, extinguished his title, and operated as a transfer of his estate to the disseizor, vesting such estate in the disseizor with like effect as if transferred by deed. Fairbanks v. Long, 91 Mo. 631; Nelson v. Brodhack, 44 Mo. 596; Valle v. Obenhanse, 62 Mo. 101; Cunningham v. Snow, 82 Mo. 592; Lessee of Thompson’s Heirs v. Green, 4 Ohio St. 216; Kirton v. Bull, 168 Mo. 633; Scannell v. American Soda F. Co., 161 Mo. 618; Ridgeway v. Holliday, 59 Mo. 53; Barry v. Otto, 56 Mo. 177; Dalton v. Bank, 54 Mo. 105; Shepley v. Cowan, 52 Mo. 559; Bank v. Evans, 51 Mo. 346 ; Boyce v. Railroad, 168 Mo. 583; Stevens v. Martin,-168 Mo. 410; Franklin v. Cunningham, 187 Mo. 184. (8) But such ouster and disseizin of Antoine DeHatre and acquisition of his estate (which was an estate of freehold, de jure uxoris), by the operation of the bar of the Statute of Limitations, could not affect the revex sionary rights of Martha Ann and her heirs because they had at no time during such running of the statute been invested with any right of possession, and hence no right of entry or action against the disseizor. Tiedeman on Real Property, sec. 65; 1 Washburn, Real Prop. (4 Ed.), sec. 30a, p. 126; 3 Washburn, Real Prop. (4 Ed.), sec. 30, p. 148; Lessee of Thompson’s Heirs v. Green, 4 Ohio St. 216; Vanata v. Johnson, 170 Mo. 269; Dyer v. Brannock, 66 Mo. 420 ; Whitaker v. Whitaker, 175 Mo. 1; Manning v. Coal Cos., 181 Mo. 374; Camp^ bell v. Laclede Gas Light Co., 84 Mo-. 377. (9) Any statute which would operate to bar the reversioner or remainderman before the termination of the life estate because such remainderman or reversioner were without right of possession, entry or action, and hence without day in court, would be unconstitutional, null and void. Campbell v. Gas Light Co., 84 Mo. .377; Shumate v. Snyder, 140- Mo. 87; Hall v. French, 165 Mo. 442. (10') The distinction between the tolling of the statute by disabilities in the owner to assert a legal right of possession, and immunity from adverse possession of a claimant whose estate carries no present right of possession without regard to any disabilities of the claimant, is important, and must be kept in view. Dyer v. Wittier, 89 Mo. 90; Hoester v. Sammelman, 101 Mo. 618; Hall v. French, 165 Mo. 441. (11) The provision in the will of Martha Ann DeHatre for her husband, not being in lieu of his curtesy, put him to no election and was not of itself sufficient to affect his life estate. Ball v.'Ball, 165 Mo. 312; Graham v. Eosenburgh, 47 Mo. Ill; Schorr v. Ettling, 124 Mo. 46. (12) The twenty-four-year statute is not involved because that, by its terms, applies only as against persons who are invested with the right of action but excused from prosecuting this action because of personal disabilities. Its office is to limit the immunity from the effects of adverse possession flowing from the disabilities. It does not fit the facts in this record. Dyer v. Wittier, 89 Mo. 81. (13) The thirty-year statute has no application to the case at bar. (a) Because at any and all times when it might have been invoked Martha Ann DeHatre and her heirs were only reversioners or remaindermen and had no right of action. Hall v. French, 165 Mo. 430. (b) Because the defendants having by adverse possession acquired the life estate of Antoine DeHatre became possessed as life tenants, and the possession of the life tenant is the possession of the remaindermen, and hence the plaintiffs were not out of possession within the spirit and meaning of the thirty-year statute, (c) Because, as life tenants, by operation of the Statute of Limitations, they were bound to pay the taxes, and so there was no failure on the part of plaintiffs or their mother to pay the taxes as contemplated by the thirty-year statute. Hall v. French, 165 Mo. 438; Howell v. Jump, 140' Mo. 457. (d) In order to invoke the thirty-year statute there must be as essential pre-existing conditions, first, the true owner thirty years out of possession; second, right of action in claimants for one year before suit brought. The earliest date when plaintiffs’ predecessors in title may be said to have been ont of possession was in 1863, upon the death of Thomas Withington (because Dr. Penn’s possession prior to that under grant from the life tenant made his possession the possession of Sallie, the remainderman). And as thirty years from that date, 1893, Antoine Dellatre, the life tenant, still lived and continued to live until one year before the bringing of this suit, plaintiffs and their mother were therefore only remaindermen, and had no right of possession, or right of entry or of action for ■ possession. Shumate v. Snyder, 144 Mo. 88; Hall v. French, 165 Mo. 430'; Yanata v. Johnson, 170 Mo. 269.

      W. F. Broadhead and W. R. Gentry for respondents.
    (1) The fact that Antoine Dellatre, who was only entitled to a life estate by virtue of his marital rights, became barred and his remedy extinguished by reason of such adverse possession, did not and could not have the effect of transforming at once the hostile, adverse possession of defendants, held and asserted under claim of sole, entire and exclusive ownership and title, into a friendly, subordinate possession held as life tenants under appellants and in privity of estate with them, as in case of a deed; for the effect of adverse possession and lapse of time is to destroy the remedy and extinguish the title of all claimants who are out of possession, and not to transmit title to the adverse holders, but to create and establish in them a complete, full, and absolute legal title by operation of law, as against all hostile claimants who are out of possession, whatsoever interests or titles they may claim. Bank v. Evans, 51 Mo. 347; Berry v. Otto," 56 Mo. 179; Davis v. Thompson, lb. 39; Dalton v. Bank, 54 Mo. 106, citing 33 Mo. 172; Crockett v. Morrison, 11 Mo. 6; Biddle v. Mellon, 13 Mo. 341; Blair v. Smith, 16 Mo. 280; Cooper v. Ord, 60 Mo. 432; Comstock v. Eastwood, 108 Mo. 47; Gardner v. Terry, 99 Mo. 526; Warfield v. Lindell, 38 Mo. 561; Sherwood v. Baker, 105 Mo. 477; Long v. Kansas City Stock Yards Co., 107 Mo. 304; Stevens v. Martin, .168 Mo. 410; Peck v. Lockridge, 97 Mo. 557; Myers v. Schuchmann, 182 Mo. 177; Reformed Church v. School-craft, 65 N. Y. 134; Butler v. Carpenter, 163 Mo. 604. (2) Antoine DeHatre, the husband of Martha Ann, having become barred by the adverse possession of George Penn and the defendants, under claim of exclusive, sole, and absolute ownership, long before her death in 1896, and his right of action having been thereby destroyed and all his marital rights and interest in the premises extinguished, then at once, upon her death, if the defendants had not already acquired the full and entire title thereto by the effect of the lapse of time and adverse possession, the plaintiffs became entitled thereto as devisees under the will of the said Martha Ann, and at once upon her death acquired a right of entry and of action, and said premises then being in the lawful possession of defendants and so remaining until this suit was filed in January, 1902, during all of which time the plaintiffs might rightfully claim said premises,' if not already barred, and for thirty consecutive years prior to any date of the period from 1896 to 1902, neither the plaintiffs nor anyone under whom they claim or might claim, having been in possession of said premises or paid any taxes thereon and the title having emanated from the Government in 1829, and the plaintiffs not having brought their action to recover the same until 1902, they are barred under the provisions of section 4268, Revised Statutes 1899. Peck v. Lockridge, 97 Mo. 557, and the other cases of like effect cited above. (3) There was no estate by curtesy in Antoine DeHatre after the death of his wife, for the further reason that Martha Ann, his wife, by her last will, gave to him for life her homestead farm, and other specific bequests, and at the same time, subject to the bequests and provisions made in said will for her husband, she gave all the balance of her estate, which necessarily includes all the interest she may have then had in this land, to her children in equal, undivided portions; he could not have curtesy therein except against the provisions of the will, which gave the whole of the residue to the children; he could not take both under and against the will, but was put to his election as the intent to exclude him from any interest in such residue is manifest; and no rejection of the will appearing, he is presumed to have accepted its provisions, and thus to have relinquished his claim to curtesy. Hence, if this point be well taken, then, by reason of the facts stated in point 2, the plaintiffs, if not then already barred by adverse possession and lapse of time, became barred under the thirty-year statute, section 4268, Revised Statutes 1899. Requa v. Graham, 52 L. R. A. 641, citing Bank, etc., v. Chambers, 96 Mo. 549; Fox v. Windes, 127 Mo. 502; Ball v. Ball, 165 Mo. 326; King v. King, 184 Mo. 108; Davidson v. Davis, 86 Mo. 442; Schorr v. Etling, 124 Mo. 46; Burgess v. Bowles, 99 Mo. 548. (4) In applying the Statute of Limitations in case of disabilities, “the saving clause only extends to the person on whom the right of action first decends or to whom the cause of action first accrues;” in this case the cause of action first accrued to Sallie'Withington, upon the disseizin and adverse possession by George Penn becoming complete as against her in 1866, while she was under the disability of insanity, and so continued until her death, in 1871, upon which event her title to the fee descended to her daughter, Martha Ann DeHatre, then under the disability of coverture, which continued until her death in 1896; the disability of the latter cannot be added to the disability of Sallie, her mother, and thus postpone indefinitely the operation of the statute, and defeat its purpose. Burdett v. May, 100 Mo. 19; Williams v. Dougan, 20 Mo. 189 ; Cunningham v. Snow, 82 Mo. 587; Billow v. Larrimore, 37 Mo. 375; Desaunier v. Murphy, 33 Mo. 184; Keeton’s Heirs v. Keeton’s Admr., 20 Mo. 543; Gordon v. Lewis, 88 Mo. 381; Wilkinson v. St. Louis Sectional Dock Co., 102 Mo. 141; Pirn v. St. Louis, 122 Mo. 666; Quick v. Rufe, 164 Mo. 410; Franklin v. Cunningham, 187 Mo1. 196; Griswold v. Butler, 3 Conn. 227; Thorp v. Raymond, 57 U. S. 247; Miller v. Railroad, 132 U. S. 662; South’s Heirs v. Thomas’s Heirs, 23 Ky. 59'; Downing’s Heirs v. Ford, 39 Ky. 391; Ashbrook v. Quarles, 54 Ky. 20; Mitchell v. Berry, 58 Ky. 602; Carpenter v. Schemerhorn, 2 Barb. (N. Y.), 314; Ridley v. Hetman, 10 Ohio 524; Whitney v. Webb, 10 Ohio 513; Clark v. Ross, 2 R. I. 440; Floyd’s Heirs v. Johnson, 12 Ky. 109; Damerest v. Wynkoop, 3 Johns. Ch. 129; Bunce v. Wolcott, 2 Conn. 36; McDonald v. Hovey, 110 U. S. 621; Davis v. Kohlens, 174 U. S. 719; East Tenn. Iron & Coal Go. v. Wiggin, 66 Fed. 446; Stowell v. Zouch, Plowden’s Rep. 533; Tyler, Eject. & Adv. Pos., pp. 931, 932, 933; see also, Robinson v. Allison, 192 Mo. 366; see, also, section 4267, Revised Statutes 1899; quoted in said decision, and held to be decisive of the question. This same section was in force in the Revised Statutes of 1855 (p. 1046, sec. 6), before Dr. Penn first laid claim to the land, and has been in force continuously ever since. It is found in G. S. 1865, page 746, section 6, in Revised Statutes 1879, section 3224, in Revised Statutes 1889, section 6769; the same provision was in force many years prior to 1855; but allowed more than three years; since 1855, however, it has remained unchanged to the present day.
   GRAVES, J.

Action in ejectment by plaintiffs against defendants upon petition in ordinary form. Answer was a general denial. Cause tried before the court, jury having been waived. The court, upon request in writing, made a written finding of facts, and filed the same, to which no exceptions were saved by either side. Upon this finding there was judgment for defendants, and plaintiffs appeal.

The findings of facts are quite long, but no doubt as short as could be made under the facts in evidence. This finding is as follows:

“A request in writing having been made that the court shall state in writing the conclusions of fact found separately from the conclusions of law, the court finds the facts herein as proven by the evidence to be as follows:
“A portion of the premises in controversy lies in U. S. Survey No. 729, and the remainder in fractional section 10' and the northwest fractional quarter of section 13, all being in township 45, range 6, in St. Ferdinand township, in St. Louis county, Missouri.
“Letters patent from the United States Government to Francis McNutt were issued May 24,1824, conveying to him the said lands in sections 10 and 11.
“It is admitted by the parties that the title to all the premises in controversy emanated from the United States Government prior to the yéar 1829.
“There is no evidence tending to show how the said Francis McNutt or his daughter Sallie YTithington or her husband acquired the title from the United States Government to the said land lying in Survey No. 729.
“On the 11th day of February, 1829, the said Francis McNutt, of the township of St. Ferdinand and county of St. Louis, Missouri, made and executed in due form of law his last will and testament, by the terms of which he gave to his wife Martha McNutt, during her lifetime, the farm on which he then lived consisting of one hundred and eighty acres. And by a later provision he gave to his daughter Sallie, after the death of his wife Martha, ‘eighty acres of land, together with the improvements thereon, being part of the fa.rm (the northeast) on which I now reside, and the improved part thereof. ’ This daughter Sallie married Thomas Withington and was the mother of the five children of said Thomas hereinafter mentioned. The precise date of the death of Martha McNutt, the wife of Francis McNutt, does not appear from the testimony, hut H is agreed between the parties that she died prior to 1857. The said will of Francis McNutt was duly probated in the proper office of probate of the county of St. Louis on the 23d day of March, 1829.
‘ ‘ The premises in controversy are part of a larger tract of land containing by survey 86.81 acres, all of which was on the 30th day of June, 1857, and for many years prior thereto, in the possession of said Thomas Withington, who, with his wife Sallie, and his children, lived on or in the near neighborhood of the premises, and for some years prior to the last-mentioned date rented the premises to a tenant.
“On the 30th day of June, 1857, Thomas Withington duly executed, acknowledged and delivered his quitclaim deed, a copy of which is in evidence and is here referred to and made a part hereof, purporting to convey unto George Penn of the county of St. Louis, who was the father of the defendant Lucy T. Perm Edmonds, the said larger tract of land fully describing the same therein and also describing the said land in the said deed as ‘the whole of said tract containing eighty acres, more or less, being part of a tract of land sold by James Mackay to Francis McNutt, and the same tract of land devised by will of the said Francis McNutt to his daughter Sallie Withington.’ This deed was not joined by Sallie Withington, the wife of Thomas, but was executed by him alone. The consideration mentioned in the deed was the sum of $320.
“At the time of the execution of this last-mentioned deed Thomas Withington and his wife, the said Sallie Withington, daughter of Francis McNutt, had living five children, to-wit: Nancy, wife of Edward James, George Withington, Lonis F. Withington, William Withington and Martha Ann DeHatre, who was married to Antoine DeHatre, by whom she then had living a number of children.
‘ ■' On the 12th day of August, 1857, three of the five children of Thomas Withington and Sallie Withing-ton, his wife, to-wit, Nancy James, George Withington and Louis F. Withington, made, executed and delivered in due form of law.a deed, a copy of which is in evidence and is here referred to and made a part hereof, purporting thereby to convey to said George Penn, for a consideration of $960, three undivided fifths of the said larger tract of land, describing it in the deed the same as in the deed first mentioned from Thomas Withington to George Penn, a part of which said description is ‘the whole of said tract containing eighty acres, more or less, being part of a tract of land sold by James Maekay to Francis McNutt, and the same tract of land devised by said Francis McNutt to his daughter Sallie Withington.’ Said deed also purported to convey to said George Penn ‘all the right, title, claim and interest of the said Sallie Withington in and to the said undivided three-fifths part of the said tract or parcel of land. ’ And in said deed the grantors covenanted to warrant and defend the title to said premises therein conveyed to said George Penn, his heirs and assigns, against the claims of said grantors and all persons claming by, through or under them, ‘and against the claim or claims of the said Sallie Withington and all or every person or persons claiming or to claim the same by, through or under her, but not against the claim of others not so claiming or deriving title.’ (Said covenant with the granting clauses of said deed are more fully set out in> said deed, and are here referred to).
“Both of said deeds, that is to say, the said deed from Thomas Withington to George Penn, and the said deed from Nancy James, George Withington and Lonis F. Withington to George Penn, were recorded August 12, 1857.
“On the 12th day of March, 1859, William Withington, a fourth of the children and heirs of Thomas Withington and Sallie Withington, made, executed and delivered in due form of law his quitclaim deed, a copy of which is in evidence and is here referred to and made a part hereof, purporting thereby to- convey unto the said George Penn an undivided fifth part of the said larger tract of land, describing it similarly to the description in the two before-mentioned deeds, and containing in the descriptive part of the deed, like the other two deeds, the following: ‘The whole of said tract containing eighty'acres, more or less, being part of a tract of land sold by James Mackay to Francis McNutt, and the same tract of land devised by said Francis McNutt to his daughter Sallie Withington.’ Said deed also purported to convey to said George Penn ‘all the right, title, claim and interest of the said Sallie Withingtoii in and to the said undivided one-fifth part of said tract of land. ’ And in said deed the said grantor, William Withington, covenanted to warrant and defend the title to said land and premises therein conveyed to said George Penn, his heirs and assigns, against the claims of said grantor and all persons claiming by, through or under him, ‘and also . against the claim or claims of the said Sallie Withing-ton and all and every person .or persons claiming or to claim the same by, through or under her, but not against the claim of others not so claiming or deriving title.’ (Said covenant with the granting clauses of said deed are more fully set out in said deed, "and are here referred to.)
“Sometime during the year 1865 George Penn, together with a-justice of the peace, came to the resideuce of Martha Ann DeHatre with a deed for said Martha Ann to sign and execute. He stated to the said Martha on said occasion that he had agreed with Antoine, the husband of Martha Ann, as to the price of her undivided fifth prospective or expected interest in the land, Antoine being at the time present, but Martha Ann declined and refused to sign the deed, stating to said George Penn that she was not satisfied with the price and would not sell or sign and execute the deed. There is no evidence of any other or further negotiations by the said George Penn with the said Martha Ann DeHatre or her husband concerning the said premises.
"No evidence was adduced tending to show any title in Thomas Withington to the lands described in his deed to Penn other -than that derived as tenant by curtesy initiate or otherwise as the husband of Sallie Withington, and the court finds that the parties plaintiff and defendant under the evidence claim only through the will of Francis McNutt and the title of Sallie Withington derived through that will, and so , claim through a common source of title.
"Upon receiving the said two first-mentioned deeds to him, the said George Penn, in the year 1857, took possession of all that portion of said larger tract of land lying north of the Old St. Charles Road, being the premises here in controversy, from one William H. Blackwell, who had theretofore occupied the same as the tenant of said Thomas Withington. At that time a portion of about thirty-five acres was in actual use and cultivation. This portion the said George Penn took actual charge of, and he inclosed it with a fence, erected a dwelling house and other improvements upon it, and planted fruit trees upon it and used it as an orchard. He then placed a tenant upon the same, and left it in the possession of his tenant.
"Afterwards in the year 1866, the said George Penn caused a fence to be erected enclosing the entire premises in controversy, and thereafter all the same was continuously held, occupied and used as a farm by a tenant or tenants of said George Penn, until the time of his conveyance to trustees of his daughter Lucy T. Penn, hereinafter mentioned, in the year 1869, and during all said period, from 1866 to the time of said conveyance in 1869, all of the said premises were so enclosed and in the actual, open, notorious and exclusive possession of the said George Penn, by and through his tenants, who were in actual use and occupation of the same. And during'all of said time the said George Penn exercised all the usual acts of ownership’ over all said premises, and took and appropriated to’ his own exclusive use all the rents and profits thereof, without accounting or offering to account to any person for the same or any portion thereof; and during all said time said possession was held and all acts done under claim of title and exclusive ownership of said premises as against all persons, by the said George Penn, and the said acts of possession and claim of exclusive ownership were, during said period, inconsistent with the ownership of any interest therein by any other person or persons, and were so unequivocal, open and notorious and of such a nature as to impart notice to all other persons claiming such premises or any share or interest in the same, that such possession and claim of ownership were adverse to them and were had and made with the intent on the part of said George Penn to permanently dispossess all other persons than himself of said premises and all interests therein. And during all of said time the said Sallie Withington resided within a few miles of the said premises, and if of sound mind and exercising ordinary care over the said premises, would have known of such possession and claim of exclusive ownership and that the same was intended to be adverse and to permanently dispossess her of her title and ownership of said premises,
“On the 1st day of September, 1869, George Penn, by his deed duly executed, offered in evidence, and here referred to and made a part hereof, for and in consideration of one dollar and love and affection, did ‘sell, convey and give’ to Crawford E. Smith and George Penn, Jr., trustees, for the benefit of Lucy T. Penn, the premises in controversy, reciting in the deed that the land conveyed was a part .of a tract of land bought of Thomas Withington. This deed was recorded the day of its execution. But no change was made in the occupancy and possession of the premises until the early part of the spring of 1873, except as follows: The said George Penn from the said 1st day of September, 1869, until said Lucy T. Penn Edmonds and her husband toot possession thereof in the spring of the year 1873, held possession of all the said premises in the same manner, having the same enclosed and used as a farm in the same manner, and exercising the same acts of ownership over the same as theretofore, and claiming the same not as his own, but as the exclusive property of his daughter, the said Lucy T. Penn, under his said deed to her, but without rendering any account to her or any one else for the rents and profits thereof. During said period the said Lucy T. Penn was residing with said George Penn as a member of his family and was supported and maintained by him. In the year 1872 the said George Penn erected upon said premises a dwelling house for his said daughter Lucy T. Penn. During all said period, from the timé of said conveyance to Lucy T. Penn until the spring of 1873, the said acts of possession and claim of exclusive ownership for said Lucy T. Penn were of the same nature as during the said period from 1866' to 1869 and were so unequivocal, open and notorious, and of such nature, as to impart notice to all other persons claiming said premises or any share or interest in the same that such possession and claim of ownership were adverse to them and were had and made with the intent on the part of the said George Penn to dispossess all other persons than himself and the said Lney T. Penn and her husband and trustees of said premises and all interests therein. And during all said time the said Sallie Withington and her guardian Edward James and the said Martha Ann DeHatre and her husband resided within a few miles of the said premises, and if of sound mind and exercising ordinary care over the said premises and their interests in the same, they would have known of such possession and claim of exclusive ownership and that the same was intended to be adverse and to permanently dispossess them of their interests in said premises.
“In the early spring of 1873 the defendant Lucy T. Penn Edmonds married the defendant Ben Edmonds and they then moved upon the premises in controversy, took actual possession of the same, and have from then until the bringing of this suit continuously held exclusive possession and occupancy of the premises, using the same without accounting to anyone for any portion of the rents, profits or the usufruct of the premises. Such possession of Mr. and Mrs. Edmonds has at all times been actual, open and notorious and under claim of exclusive ownership adverse to all persons, and their said possession and claim of ownership have been at all times of such nature as to impart notice to all other persons claiming said premises or any share or interest therein that said possession and claim were adverse to them, and the- said Martha Ann DeHatre and her husband and children, in the exercise of ordinary care over their interests in said premises, would have known of such possession and claim of exclusive ■ ownership.
“At the time of executing said deed to trustees of his daughter, Lucy T. Penn', on the 1st day of September, 1869, the said George Penn also duly executed his deed of that date, which is referred to and made a part hereof, for and in consideration of one dollar and love and affection, and by said deed did ‘sell, convey and give’ to his daughter, Virginia P. Smith, the balance of said larger tract of land, being the portion thereof lying south of the said Old St. Charles Road, to have and to hold ‘free from the claims of the party of the first part and from the claim or claims of all persons' whomsoever. ’ Said deed was acknowledged and duly recorded on the 13th day of September, 1869.
“No child was ever born of this marriage of the defendants Edmonds.
“From a time shortly after the said George Penn took possession of said portion of said larger tract in the year 1857, at least from the year 1861 or 1862, the whole of said larger tract was assessed for taxes in the name of said George Penn down to and including the taxes of 1869, and thereafter the said premises here in controversy have been assessed for taxes in the name of Lucy P. Edmonds.
“After taking possession in 1857, at least from the year 1862, George Penn paid the taxes on said premises continuously until the year 1877, and from that time until the beginning of this suit, the taxes were paid by the defendant Lucy Penn Edmonds. And there is no evidence that anybody else during this time paid any taxes.
“The said Thomas. Withington died in the year 1863.
“In 1870, in appropriate proceedings in the probate court of the county of St. Louis, Sallie Withing-ton was declared an insane person, and on March 30, 1870, Edward James was duly appointed her guardian. During the year 1871 Sallie Withington died. Sallie Withington, at her death was, and for many years dating back prior to 1854, had been an insane person and incapable of transacting business. Upon the death of said Sallie Withington in 1871, she left surviving her as one of her heirs, Martha Ann DeHatre, who was at the time living in lawful wedlock with her husband Antoine DeHatre, and had by him living a number of children, some of whom were at the time twenty years or more of age. The other heirs of Sallie Withington were her children, the said Nancy James, George Withington, Louis F. Withington and William Withington.
“The plaintiffs in this cause are the heirs at law of Martha Ann and Antoine DeHatre. Martha Ann departed this life on the — day of January, 1896, leaving surviving her, her husband, Antoine DeHatre, and plaintiffs as her heirs at law, and also leaving a last will and testament duly executed and probated, in which she gave to her husband, Antoine, a life estate in a tract of land then used by them as a homestead. In the will no specific reference is made to the particular premises in controversy, neither is the provision for Antoine DeHatre, her husband, expressed to be in lieu of his curtesy interest in her estate, but no reference is made in the will to the curtesy estate of the husband, Antoine DeHatre, or any release or relinquishment of the same. A copy of said will is in evidence and is here referred to and made a part hereof.
“Antoine DeHatre, the husband of Martha Ann, died January 4, 1901, within one year next before the filing of this suit.
“Neither the plaintiffs, nor any one through whom they derive their record title, have been in actual possession of the premises in controversy since 1857.”

From this finding of facts let us sift out the real questions for determination. That Sallie Withington, in 1857, the date of the death of her mother, acquired this land by the will of her father, Francis McNutt, stands conceded; that she was insane from 1854 to 1871, the date of her death, is.conceded; that at the death of Sallie Withington, Martha Ann, her daughter, being one of five children, was married to Antoine DeHatre, is conceded; that Martha Ann DeHatre, mother of the plaintiffs and through whom they claim title to one-fifth interest in the lands in controversy, died in 1896, is conceded; that her husband Antoine survived her and did not die until 1901, “within one year next before the filing of this suit,” is conceded; that the defendant and her father had the exclusive, open, notorious and adverse possession of the land since 1866, claiming the whole thereof and all interest therein, is conceded. Under the facts, plaintiffs say, through their mother, who refused to deed her one-fifth interest in said land to Dr. Penn in 1863, they- are entitled to this one-fifth interest. Defendants say the once valid title of Martha Ann DeHatre has vested in them by the Statutes of Limitations.

Upon the death of Sallie Withington, in 1871, respondents claim and the lower court held, that the Statutes of Limitations began to run against both Antoine DeHatre and his wife Martha Ann. Respondents concede that whilst the right of entry accrued to Sallie Withington in 1866, yet, she being insane, the running of the statutes would not begin until her death in 1871, but urge that it did run then as to all parties claiming any right or interest through Sallie Withington.

On the other hand, appellants claim that upon the death of Sallie Withington, one-fifth of her estate, the part which would be coming to Martha Ann DeHatre, immediately vested in Antoine DeHatre, her husband, for the period of their marriage, a freehold estate, de jure uxoris, and then after her death, a consummated curtesy estate for his life, with remainder upon his death, in these plaintiffs, and at no time did Martha Ann DeHatre or these plaintiffs have any right of entry until the death of Antoine DeHatre, and that while the statute did run as to the estate or interest of Antoine DeHatre, it could not run as against plaintiffs or their mother, for the reason that at no time were they or either of them entitled to possession or to bring suit for possession and thus assert their title.

Defendants further contend- that to permit plaintiff’s contention to prevail would be to tack the disability of the -coverture of Martha Ann DeHatre to the disability of the insanity of Sallie Withington, and thus defeat the running of the statute by tacking disabilities. Plaintiffs say there is no tacking of disabilities, for the reason that upon the death of Sallie Withington in 1871, the law created two estates, separate and distinct, the one, a freehold in Antoine DeHatre, the other, an estate in remainder, either in the wife Mary Ann, or if she died before Antoine, as she did, then in her children, the plaintiffs. That the law which thus carved out two estates in the premises upon the death of Sallie Withington, gave no right of entry and no right of action for possession, to the remaindermen, hence the statute could not run and did not run.

These are the questions suggested by this record.

I. It is conceded that the Statute of Limitations began to run against some person and some estate in this land upon the death of Sallie Withington in 1871. The question is, against what person and what interest or interests did it run ? Appellants say, only as against Antoine DeHatre and his,interest in the lands. Had Martha Ann been single at the death of her mother, Sallie Withington, there would be no question that the statute would have run against all persons and all interests in the land, and her subsequent marriage would not have effected the running of the statute: Now, does the fact that she was married at the date of her mother’s death, change the situation? Plaintiff says it does for the reason that when the estate of Sallie Withington was cast, it was by law divided into two estates, . the one of possession, a freehold estate de jure uxoris, and the other a remainder in the wife, or in the event of her death before the husband, in their children.

Is this position tenable? We think not. No estate descended from Sallie Withington, at her death, to Antoine DeHarte. He was not an heir or descendant within the meaning, of the law. The whole estate, so far as the one-fifth interest of the land involved in this ease, descended to Martha Ann DeHatre, the daughter of Sallie Withington. What rights Antoine acquired were rights acquired through the wife by reason of the marriage. The estate of the husband is a freehold estate, less than the fee, which the law carves out of the whole estate, leaving- an estate in remainder. But before the carving process begins there must be an estate in fee in the wife. In other’words, before there can be a division of the estate, the whole estate must be in the wife.

By descent the whole estate did pass to the wife in this instance, and thereupon the law divided it as above indicated. Because it was simultaneously dope, can make no difference. No interest, under the law of descents and distributions, could go to the husband. The whole went to thé wife and the law immediately carved out the estate of the husband. But when the whole estate did go to and vest in the wife, at the same instant, and before the law carved out of it the husband’s estate, it became impressed, as a whole, with whatever outstanding interests, if any, might be in embryo, by reason of the effect of the Statute of Limitations, which statute was fully effective and began to run the instant Sallie Withington drew the last breath of life. In our .opinion the whole estate became thus impressed with the statute at that instant and it had more than fully run, long prior to the institution of this suit. Counsel for appellant makes a learned argument to the effect that the statute could not run against Martha Ann DeHatre because, when the estate was cast, the husband took a freehold estate and the wife a remainder, and the husband having the sole right of possession, he alone could sue for the possession, and the right of the wife to sue could not accrue until the death of the husband. This proposition in cases where the law has carved out two estates from the whole, prior to the time the Statute of Limitations began to run, might be conceded and yet not affect the result in this case. For instance, A marries B. At the date of the marriage or thereafter the wife was or became possessed of real estate. By operation of law the two estates were created, the freehold in the husband and the remainder in the wife. Thereafter the Statute of Limitations began to run by reason of adverse possession. In such case, for the purpose of the case at bar, it might be conceded that it would not run as to the remainderman, and yet such concession would not affect the question in hand. However, we are not passing upon the supposed case. In the case at bar the whole estate had to first pass to the wife, for only through her and the marriage relation does the husband acquire any interest. When it did so pass, it was thoroughly infected by the poison, if such it should be called, of the Statute of Limitations, and this virus went to the whole estate, and not simply to the portion thereof, afterwards, by operation of law, carved out and set apart to the husband.

Had Martha Ann been single, and had the whole estate then been cast upon her, there would be no question as to the running of the statute, notwithstanding, within five minutes thereafter, she had married and by virtue of the law the husband had acquired the freehold estate, and thereby the sole right of possession.. The fallacy of plaintiffs’ argument lies in. the fact that they overlook the point that the whole estate by descent is cast upon the wife, and when cast it is infected with the virus of the statute and the statute having begun to run as to the whole estate, no subsequent carving up of the estate, either by deed or operation of law, can stop the running of the statute. This is true because the right to sue did not first accrue to either Mr. or Mrs. DeHatre, but to Sallie Withington. Although the carving of the estate by operation of law and the beginning of the statute to run be simultaneous, yet, in law, the whole estate must first pass to the wife, before, by operation of law, the division thereof can take place, so that in law, the division of the estate into a freehold estate, less than a fee and a remainder, is, after the casting of the whole estate, and after the statute begins to run, although all do arise from one event, the death of the ancestor of the wife: Under sections 4265 and 4267, Revised Statutes 1899, the fact that Mrs. DeHatre was married at the date of the casting of the estate, does not change the situation, unless it be changed upon the theory contended for by plaintiffs just above discussed. Her disability cannot be tacked to the disability of her mother, the right to sue having been first cast upon the mother. [Dessaunier v. Murphy, 33 Mo. l. c. 192; Robinson v. Allison, 192 Mo. 366; Cordon v. Lewis, 88 Mo. l. c. 381.]

In the Dessaunier case it-is said: “The disabilities set up by the plaintiffs were that Emily and Margaret were, when Cozens took possession of the land, married women. Those disabilities ceased when they ceased to be married women, and no other disabilities could be tacked to or cumulated upon these. As to the plaintiff Emily, when her husband Cagnon died, the Statute of Limitations began immediately to run against her and never afterwards ceased. As to Margaret, immediately upon her death the statute began ■to run against her representatives, without regard to any disabilities under which they might be, for this would be in effect a cumulation of disabilities.”

And, further, our court, in Gordon v. Lewis, supra, says: “In the cases of Dessaunier v. Murphy, 33 Mo. 184, and Billon v. Larimore, 37 Mo. 375, it.is held that when a disability exists at the.time the cause of action accrued, when that disability is removed, another disability cannot be tacked onto it. In the first case cited the wife was under disability of coverture when the cause of action accrued. She died, leaving .her husband living, and it was held, ‘that immediately, upon her death the statute began to run against her respresentatives without regard to any disabilities under which they might be, for this would in effect be a cumulation of disabilities.’ ”

We therefore conclude that the Statute of Limitations as to the whole estate began to- run in 1871, and had fully run long prior to the institution of this suit, which not only bars the right of action of the plaintiffs, but further vests title in defendants.

II. Plaintiffs rely upon the case of Lessee of Thompson’s Heirs v. Green, 4 Ohio St. 216, and the approval of the doctrine announced in that case by our court in the cases of Dyer v. Wittler, 89 Mo. 81, and. Arnold v. Willis, 128 Mo. l. c. 151. All these cases are different from the one at bar. In the case at bar the right to sue first accrued to Sallie Withington in 1866, but she being insane, the Statute of Limitations did not run as against her. She was-the party protected by section 4265 of our statute on account of her disability. The right having first accured to her the lineal descendants are not protected by the statute, although they were laboring under disabilities at the time the right óf action accrued to them. [Dessaunier v. Murphy, 33 Mo. 184; Billon v. Larimore, 37 Mo. 375; Campbell v. Laclede Gas Light Co., 84 Mo. 352; Burdett v. May, 100 Mo. l. c. 19; Robinson v. Allison, 192 Mo. 366.]

Under the facts in this case their rights are fixed by section 4267, which gives them a right to sue within three years after the death of the person to whom the right first accrued and not thereafter. In this section there is no exception as to persons suffering from disabilities. In fact, the purport of the section is to bar all actions by any person, if brought more than three years after the death of the person suffering from some disability mentioned in section 4265'. This section 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 had 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 within three years after his death, but not after that period.”

In case of Robinson v. Allison, 192 Mo. l. c. 376, Marshall, J., says:

“As to the interest acquired by the plaintiff by the descent from her mother, section 4267, and not 4265, applies, for the plaintiff claims through her mother by descent cast upon her mother by the death of her half-brother Kidwell. Kidwell died in October, 1884, and the plaintiff’s mother died in 1893. Kid-well, therefore, was entitled up to the date of his death, which occurred during his minority, to all the benefits conferred by section 4265, but the benefits thus conferred upon Kidwell by the statute are not by statute conferred upon plaintiff’s mother. Plaintiff’s mother was only entitled to the benefits conferred by section 4267. Under that section, Kidwell having died while under disability, and there having been no determination of his rights, his heirs (John West and Clara West) were only entitled to commence an action or make an entry within three years after his death, and not after that period. Such an action under that section could only have been instituted prior to October, 1887. The fact that at the time the right of action of Clara West and John West accrued by virtue of the death of Kidwell, they were also under twenty-one years of age, did not entitle them, or either of them, to the benefits of section 4265. For section 4267 does not extend the benefits of section 4265, which were enjoyed'by Kidwell, to either the plaintiff or her mother, but expressly limits their rights to bring an action to a period not exceeding three years after Kidwell’s death; and this is true, even though they were laboring under disabilities. ’ ’

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. [Gray v. Yates, 67 Mo. l. c. 602.]

But going back to the distinction to be drawn as to the cases relied upon by plaintiffs. In the Ohio case, supra, the agreed statement of facts shows that the woman was a married woman when the adverse possession began and her right of action first accrued. In the case at bar the right of action accrued to the- ancestor, and the Statute of Limitations was held in abeyance on account of insanity. Again, in the Dyer case, supra, the whole estate had been cast upon the wife several years before the adverse possession began.' When it was cast the law carved out two estates. These two estates had existed several years prior to the adverse possession, and of course prior to the accrual of the right to sue. When the right to sue for possession accrued, and thereby the statute began to run, the husband was entitled to the possession and the wife was not so entitled, and our court so held. The right of action for possession first accrued to the husband. But that is not the case at bar. Here the right first accrued to the ancestor of the wife, then under a disability. The same distinction exists as to the other cases relied upon by the plaintiffs.

Section 4262 of our Statute of Limitations limits the right to sue for possession of real property to ten years, with no exceptions or saving clauses as to any person. Section 4265 contains the saving clause or exceptions and provides that if the party entitled to sue under section 4262 is a minor, insane, married or imprisoned for a term less than life, the time during which the disability exists shall not.be considered a portion of the time limited in section 4262, but limits the time of bringing the action to twenty-four years, even where there are disabilities unremoved.

This limit of twenty-four years would always remove the disability of minority, but not necessarily the other disabilities. Section 4267, quoted above, in plain language limits the right of the heirs of one upon whom the right to sue first falls, to three years. ' This section has no saving clause as to disabilities. So that under our statutes the right to sue is barred in ten years, except as to persons suffering from disabilities specifically mentioned, and they are barred in twenty-four years whether disabilities have been removed or not. But if before the twenty-four years expires the party under disability dies and to whom the right of action first accrued, then his or her heirs can sue within three years after death of the ancestor, but not afterwards, unless such death occurs more than three years prior to the expiration of the ten-year limit, in which event the heir could bring the suit at any time within ten years from the date the right of action first accrued to the ancestor. [Robinson v. Allison, supra, and Gray v. Yates, supra.]

In this case the limit of twenty-four years from the time the right of action accrued to'Sallie Withing-ton expired in 1890, more than ten years before this suit was brought. So that under either or all of these several sections, this action is barred.

III. Not only is plaintiffs’ right of action barred by the statutes heretofore discussed, and title to the property vested in defendants by such statutes, but in our judgment, under the facts in this case, defendants have acquired title under and by virtue of section 4268, which is as follows:

“Whenever any real estate, the equitable title to which shall have emanated from the Government more than ten years, shall thereafter, on any date, be in the lawful possession of any person, and which shall' or might be claimed by another, and which shall not at such date have been in the possession of the said person claiming or who might claim the same, or of any one under whom he claims or might claim, for thirty consecutive years, and on which neither the said person claiming or who might claim the same nor those under whom he claims or might claim has paid any taxes for all that period of time, the said person claiming or who might claim such real estate shall, within one year from said date, bring his action to recover the same, and in default thereof he shall he forever barred, and his right and title shall, ipso facto, vest in such possessor: Provided, however, that in all cases such action may be brought at any time within one year from the date at which this article takes effect and goes into force.”

Under the facts the equitable title emanated from the Government prior to 1829', more than the ten years mentioned in the statute; the lawful possession was in defendants and had been in defendants and their grantor since 1866; that the land might have been claimed by Sallie Withington, grandmother of plaintiffs and through whom they claim as early as 1866, and perhaps since 1862; no taxes were paid by Sallie Withington or any one claiming under her during all this time from 1866 to 1902; no action was brought by Sallie Withington or any one claiming under or through her until the present suit within a year after January. 4,1901. If Sallie Withington owned this land, it was her duty to pay taxes. Her insanity did not relieve her of this duty. Then from 1866 to 1871, the date of her death, she, having the absolute title, was in law bound to pay the taxes. This she did not do. Her husband had died previous to 1866, but after having made a deed to defendants ’ grantor. In this deed he was not joined by his wife, Sallie, and of course only conveyed a life estate. With his death this life estate terminated, and Sallie Withington became the sole owner in fee simple.

Plaintiffs claim that upon the death of Sallie Withington, the duty of paying taxes devolved upon Antoine DeHatre, and for that reason the statute cannot be invoked. They overlook the fact that the first duty was upon their grandmother, under whom they claim. We do not say that the payment of taxes by a life tenant for thirty-one years would affect the rights of remaindermen, nor the failure of remainder-men to pay taxes for that period, when the duty devolved upon the life tenant to pay them, would affect their rights. We are not passing upon that kind of a case and are expressing no opinion on such a cáse. It will be time enough to discuss that proposition in a case where it is a live issue.

But in this case, the duty first devolved upon the ancestor of Martha Ann DeHatre. Upon the death of this ancestor, in a case of this kind, does the disability of Martha Ann relieve her of the duty to pay taxes? In Collins v. Pease, 146 Mo. 135, this court, through Williams, J., has held that such disability does not relieve her. At page 139, he says:

“It applies to cases where the legal, as well as to those in which only the eqnitahle, title has emanated from the Government.
“The statute contains no saving clause in favor of persons under disability after a right of action has accrued to them, and the courts cannot write into it an exception in their behalf. ‘The act of 1874 was evidently intended to be a statute of absolute repose to those who come within the protection of its provisions.’ ”
So also Valliant, J., in Seannell v. Am. Soda Fountain Co., 161 Mo. l. c. 619.
In the Collins case the facts are stated as follows:
“It is an ejectment. A patent issued in 1860 from the United States to George and Spencer Collins for the land in dispute. George died in 1860 or 1861, and Spencer in 1864. Defendants are in possession. Plaintiffs are heirs of the patentees. This made for them a prima-facie case.
“The defense relied upon is the limitation of thirty years contained in section 6770, Revised Statutes 1889.
‘ ‘ The testimony tended to prove that Solomon Collins, father of George and Spencer, was in possession of the land in 1860, when it was entered. He assigned to them a land warrant belonging to him and it was located on this tract. It is said by some of the witnesses that this was done and the patent issued in their name because the father was financially embarrassed. He nevertheless remained in possession, and there is evidence showing that he openly asserted his ownership thereof. He went away during the war and did not return to the land until a year or more after its close. The dates are not very definitely fixed in the record. He continued, after he came back, to use and claim the land as his own until 1879, when he sold it to C. E. Pease. The latter then went into possession and held it, -undisturbed by any adverse claim, until he sold to the defendants. They have had exclusive possession since their purchase.
“At the time of the death of Spencer and George Collins, they had two sisters, who were then married women, and have remained under coverture since. These sisters and their husbands, in 1894, conveyed their undivided interest to plaintiff, Harrison Collins, Jr.”

So that we have the case at bar as to facts. Legal title in George and Spencer Collins in 1860, date of patent; adverse possession in Solomon Collins from the date of entry in 1860 to date of deed to Pease and in Pease and his grantees to date of suit. By death of George and Spencer in 1861 and 1864, legal title was cast upon their two sisters, then married, and a brother, their grantee, the plaintiff in the suit. If under these facts the disability would not protect these two women and through them their rights afterward conveyed to the plaintiff, as was said by Judge Williams, we can see no reason why the disability of coverture upon the part of Martha Ann DeHatre should protect the plaintiffs in the case under consideration.

In our judgment section 4268 is a statute of repose. In eases falling within its terms, it has the effect of vesting absolutely the legal title to the land in the person holding the possession and paying the taxes during the years of limitation fixed by the statute. In fact, all statutes of limitations are statutes of repose, passed for the beneficent purpose of putting an end to the litigation of stale cases, the evidence in which may have been scattered to the four winds, by the lapse of time. These same statutes reduce the opportunities for perjury and are demanded by public policy in the interest of the general welfare of the citizens of the State.

That this section 4268 is fully recognized as a statute of limitations and a statute of repose by this court fully appears from the following cases: Fairbanks v. Long, 91 Mo. 628; Collins v. Pease, 146 Mo. 135; Scannell v. American Soda Fountain Co., 161 Mo. l. c. 619.

In Fairbanks ease, supra, Brace, J., says:

“As to the remaining contention of counsel for appellants, that, at the time the act went into effect, all the plaintiffs, except one, were laboring under the disability of minority, it is sufficient to say that the statute makes no exceptions, and the settled rule is, in respect to the running of the Statute of Limitations, that the statute will run against all persons, ‘and no exception to the statute can be claimed unless it is expressly mentioned in such statute, ’ and ‘ where the statute makes no exception, the court can make none on the ground of any inherent equity, or because it may appear to be reasonable that the statute should not run against any party in a given ease.’ [Tyler on Ejectment, 928-, 929, and cas. cit.; Angelí on Lim. (6 Ed.), 203 and cas. cit.] The act of 1874 was evidently intended to be a statute of-absolute repose to those who came within the protection of its provisions.”

In Collins case, supra, Williams, J., quoting from the Fairbanks case, added his approval to the doctrine of that case, as we have shown by a quotation above made.

When we said the statute was a statute of repose for cases falling within its terms, we said it advisedly, having in view the case of Hall v. French, 165 Mo. 430, and cases therein cited. There are cases which would not come within the meaning of the statute, and the distinction is drawn by Marshall, J., in the Hall case, supra. In that- case the two estates had been carved out by deed. By this deed there was a life estate in Ann P. Henderson and .a remainder in her bodily heirs. Being married at the. time the deed was executed, her husband, Henry M. Henderson, by operation of law took the life estate of the wife so long as the marriage relation continued, and was entitled to sue for and protect the possession. This interest of the hnshand was sold under execution and the defendants, who invoked section 4268, held by mesne conveyances under the purchaser at the execution sale. It will be observed by a reading of this case, that the two estates had been carved out of the whole, and had a separate existence, before any statute of limitations could begin to run. The purchaser at the sale bought the interest of the husband and thereafter said purchaser and his grantees occupied the husband’s place in their relation to the land, and their holding was not adverse to the remaindermen, under the facts, nor was their payment of taxes adverse to the remaindermen. They began this payment of taxes after there had been a separation of the two estates in the land. With the interest which they bought it became their duty to pay taxes.

But this case is not the case at bar. The payment of taxes and the adverse possession began in 1866, being prior to the separation, of the two estates in 1871, upon the death of Mrs. Withington. The case at bar is parallel with the Collins case, supra, the doctrine of which is approved by Judge Marshall. In our judgment if the two estates had been carved from the whole, either by deed or operation of law, prior to the beginning of the adverse possession, and the payment of taxes, then section 4268 does not apply, except as to the possessory estate. In other words, does not apply to the remaindermen. But on the other hand, if the adverse possession and the payment of taxes began prior to the carving out of the two estates from the whole, then such statute does apply, and as to the whole estate. Again, as in effect held in the Collins case, supra, if this separation of the whole into two estates is the result of the disability of coverture arising after the adverse possession and payment of taxes began, then such disability can in nowise impair the force of the statute. We, therefore, conclude that the Hall ease, supra, is clearly distinguishable from the case at bar, and as clearly so as the Collins case was distinguishable from the Hall case, which distinction was drawn by Marshall, J., in the Hall case.

In all this we recognize that even between joint tenants and between life tenants and remaindermen, adverse possession might arise. If one joint tenant should openly claim the whole estate, as against the other, or even if a life tenant should openly claim the whole estate as against the remainderman, a condition of facts might be shown which -would start the operation of some one of our statutes of limitations, but a discussion of this can serve no good purpose here. It is not in the case at bar.

From what has been said it follows that the judgment of the circuit court should be affirmed, and it is so ordered.

Valliant and Lamm, JJ., concur; Brace, G. J., concurs in result.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    STEWART v. LEAD BELT LAND COMPANY et al., Appellants.
    Division One,
    December 22, 1906.
    1. QUIETING TITLE: Tender of Issue of Fee Simple Title: Proof: No Common Source. Where plaintiff in his suit to quiet . title tenders the issue of fee simple title, by alleging that he is the owner of the fee simple title, he cannot sustain that issue by a chain of title which starts with nothing (in this case, with no patent), there being no common source of title. The statute (sec. 650) is not broad enough to support a decree for plaintiff based on such allegations and proof.
    2. -: Origin of Title: Plat Book. An uncertified plat book, procured from the proper land office, obtained under section 9159, Revised Statutes 1899, and kept in the county clerk’s office, is not evidence, because not certified, and an entry therein is no evidence that certain land was ever patented to a person whose name appears thereon. And a chain of title traced from such person • starts with nothing, and is not sufficient to establish a fee simple title — the parties not depending upon a common source of title.
    3. TENDER OF TAXES PAID: Act of 1903: Not Pleaded. Where no concrete case has been made by the pleading as to the scope and meaning of the act of 1903 in reference to tendering taxes paid by defendant, the court will not undertake to • construe that statute, nor determine the rights of the parties thereunder.
    Appeal from Madison Circuit Court. — Hon. Robert A. Anthony, Judge. ,
    Reversed and remanded.

      M. R. Smith, Moses Whybarlc, B. B. Cahoon, Sr., and David M. Tesreau for appellants.
    While it is true that certified copies of entries of land, made by the register of the U. S. land offices, are evidence of the fact of entry of real estate from the Government of the United States, yet no such certified copy or copies were offered and in this case plaintiff wholly failed to show that the title to the land had ever passed out of the United States Government. Consequently, he utterly failed to make good the allegations in his petition as to his being the owner in fee simple of the land described in his petition. Hence, as he in no sense made out even a prima-facie case, the demurrer to the evidence should have been sustained and judgment on the testimony should have been for defendants instead of plaintiff. It is idle to require defendants to enter on any defense of title when plaintiff failed to show good and complete title. Secs. 3094, 3098, 3111, R. S. 1899'; Wilhite v. Barr, 67 Mo. 284; Pabst Brewing Co. v. Smith, 59 Mo. App. 176; Payne v. Lott, 90' Mo. 681. No common source of title was proven. No evidence was introduced to prove that this land is in the possession of any one or that it is other than, in fact it is, wild land. While title in ejectment based on adverse possession may be recovered as against one claiming! under the weaker title, yet such title by adverse possession must be a completed title. In all questions of title the plaintiff recovers, if at all, on the strength of his title, and not on the weakness of his adversary’s title. Foster v. Evans, 51 Mo. 39; Horwood v. Tracy, 118 Mo. 631; "West v. Bretelle, 115 Mo. 653; Walther v. Walsh, 107 Mo. 121. Legally speaking, no adverse possession can sustain or be proof of a title in fee simple to real estate such as plaintiff alleged, and was required to prove to recover either in ejectment or under section 650, Revised Statutes 1899, on which he attempted to base his action, until it is shown the title has passed out of the source of all titles in this State, to-wit, the Government, and that the completed legal title was in plaintiff at the time of the suit. Olay v. Mays, 144 Mo. 376; Finley v. Babb, 144 Mo. 403; Robinson v. Claggett, 149 Mo. 153. Section 650 does not undertake to alter that rule. One who sues under section 650 must make precisely the same proof of title he is required to make in actions of ejectment.

      E. D. Anthony for respondent.
   LAMM, J.

Suit to determine interests in, and quiet title to, 200 acres of land in Madison county, instituted July 20, 1903. Judgment-for plaintiff; defendants appeal.

The petition, omitting caption and signature, follows:

“Plaintiff, for a cause of action against defendants, states that he is the owner in fee simple, and claims the title to the following described real estate lying, being and situate in the county of Madison in the State of Missouri, to-wit: The northeast quarter of section thirty-six, in township thirty-three, in range seven east, and the northeast quarter of northwest quarter of the same section, township and range as above; all in Madison, containing two hundred acres, more or less.
“Plaintiff further states that the defendant Lead Belt Land Company is a corporation organized under the general and special laws of the State of Missouri, and as such corporation and as such trustees and beneficiaries in a deed of trust on above-described land, claims some title, interest or estate in and to said premises, the nature and character of which claim is unknown to1 plaintiff and cannot be described herein, except such claim is adverse to plaintiff.
‘ ‘ Wherefore, the plaintiff prays the court to try to [sic] ascertain and determine the estate, title and interest of the plaintiff and defendants herein respectively in and to the real estate aforesaid and to define and adjudge by its judgment or decree, the title, interest and estate of the parties, plaintiff and defendants, severally in and to the aforesaid premises and for costs in this hehalf expended.”

The only answer in the record, that of the Lead Belt Land Company, is as follows:

“Comes now the defendant in the above-entitled cause, and for its answer to plaintiff’s petition in this behalf, denies every allegation, statement and averment therein contained and all knowledge or information sufficient to form a belief thereof, except the admission by averments in plaintiff’s petition as to its title and claims to the premises described in his petition; and in this connection, it avers that it has full and complete title’to said premises and prays that it may be discharged hereof with costs of suit.
“Further answering, defendant avers that plaintiff is prosecuting this cause against it with full knowledge of when it obtained title to the premises described in his petition; of the exact ‘nature and character’ of its title and claim of title and its muniments of title and of its bona fide belief in the goodness of such title and yet, notwithstanding such knowledge of defendant’s title, plaintiff wilfully refuses to plead such facts in his petition, hut knowingly suppresses them.
“And defendant avers that plaintiff’s petition does not state facts sufficient to constitute a cause of action; wherefore, defendant says that plaintiff, under his petition, is not entitled to recover and that his suit is hy virtue of section 1 of an act of the Legislature of Missouri, approved March 6, 1903, entitled, ‘An Act Relating to Setting Aside of Tax Deeds, ’ should he dismissed and defendant prays that said cause he dismissed. ’ ’

The replication reads thus (the part in italics being struck out on motion of defendant):

“Now comes the plaintiff, and for reply to defendant’s answer, denies each and every allegation of new matter therein contained.
“Plaintiff, further replying, denies that there is such an Act of the Legislature of Missouri, approved March 6, 1903, entitled, ‘An Act Relating to Setting Aside of Tax Deeds,’ and further answering [sic] states that such pretended act is not properly plead in defendant’s answer.
“Plaintiff denies that he is liable under such pretended act for taxes, costs or other expenses of defendants, but for the purpose of this suit> plaintiff hereby tenders and offers to pay to defendants all taxes, if any, paid by them as soon as the amount thereof shall be ascertained by the court, if any there be, and require the defendants to set up in their answer all taxes paid by them and when and where paid and for costs of this suit.”

The replication was struck at hy a motion, as follows:

‘ ‘ Comes now the defendant, Lead Belt Land Company and states that plaintiff seeks, as a matter of fact, ■ to set aside and avoid a tax deed made hy the sheriff of Madison county, Missouri, to certain parties and yet, such material allegation is not set out in his said petition, and to cure such defect he attempts to plead that fact in his replication and to plead the further important fact of non-payment of taxes on the property described in said petition and the payment of taxes by the purchaser at such tax sale and subsequent guarantees [sic] under said purchaser, including this defendant. And in his replication he tenders all taxes paid by the said purchaser and his grantees, down to defendant Lead Lead Belt Land Company.
“It being necessary that these material facts be set up in his petition in order that a cause of action might be stated therein.
“1. Defendant, therefore, moves the court to strike out all that part of said replication, commencing with line 20 thereof, down to line 33 of said replication, including line 33, on the ground it constitutes a departure in pleading and is an attempt to amend his petition in a material matter.
“2. Because tbe replication admits that his petition seeks to set aside a title acquired by defendants under a tax deed and then by the allegations in the replication, admits that his petition states no' cause of action, and, therefore, this suit ought to be dismissed. ’ ’

Defendant’s motion to strike out was sustained; but the court refused to dismiss the suit, and defendant saved no exception to this action of the court.

At the trial there was no claim or proof of possession in plaintiff; there was no claim or proof of possession by defendants, or any of them; there was no proof of the character of defendants’ claims. Plaintiff contented himself by undertaking to prove a dry, naked, legal title in himself and by resting on such title. ■ To this end, he introduced evidence as follows:

(1) A warranty deed from Henry T. Mayer to Matthew A. Trevor, dated February 9, 1860, and recorded September 5, 1870.

(2) A warranty deed from Matthew R. Trevor and wife to Albert G. Trevor, dated August 30, 1870, and recorded September 5, 1870.

(3) A defective and irregular warranty deed from Albert G. Trevor and wife to Mrs. L. C. Bascom, dated February 9, 1883, and recorded February 24, 1883.

(4) A quitclaim deed, duly executed, from Albert G. Trevor (a widower) to Mrs. Lucretia A. Bascom, dated October 15, 1891, and recorded November 21, 1891.

(5) A warranty deed from Lucretia C. Bascom, a widow, to plaintiff, dated October 15, 1891, and recorded November 21, 1891.

It will be seen there is no common source of title in the case; the title relied on. starts with Henry T. Mayer. The theory of plaintiff seems to be that Mayer’s title emanated from the Government of the United States. To sustain such theory, plaintiff placed upon the stand Mr. Farrar and showed by him that he was county clerk of Madison county; that he had possession of certain county records, among others, a county plat book. The witness said this book “happened to be in my office. I cannot say that it should be in my office. ’ ’ Witness produced the book, and (turning to sec. 36, twp. 33, r. 7) in response to a question of who was the patentee of the land in question, he said: “Henry T. Mayer — I think that is the name; it might be ‘O;’ I cannot say positively.” The plat book was then offered and admitted in evidence. Upon the offer of this book, certain objections, rulings and admissions were made, certain exceptions were saved and certain colloquies occurred, viz:

“Mr. Whybark: We object to the introduction of that plat, for the reason, first, that it is not verified; secondly, for the reason that it is not a record imparting notices of land titles; not a proper record in the county clerk’s office, and it is just simply not a book where all records are required to be entered whether they be under the homestead law or otherwise.
“By the Court: Do you think that is evidence in that shape, Mr. Anthony?
‘ ‘ Mr. Anthony: I offer it for what it is worth.
“By the Court: Let it go in for the present.
“To which action and ruling of the court in so admitting said plat defendants excepted' at the time.
“It is admitted that the plat book offered in testimony does not show that it now is certified by the register or receiver of the land office at Ironton, Missouri, or any other officer authorized to do so.”

The plat hook showed section 36 marked as follows :

The foregoing is plaintiff’s case.

When plaintiff rested, defendants interposed a demurrer, which was overruled and an exception was saved. Whereat they elected to stand on the record and declined to introduce any evidence. Whereat the court rendered judgment for plaintiff, to the effect that plaintiff was the owner in fee simple of the land in dispute and that defendants (naming them), nor either of them, had any title whatever in and to said real estate (describing it).

Plaintiff submits no brief or counter-abstract. Defendants submit a brief, assigning certain errors. We will consider such of them as are necessary.

I. The first insistence of defendants is that plaintiff made no case entitling him to any relief. This suit is under Revised Statutes 18991, section 650, which entities “any person claiming any title, estate or interest in real property, whether the same he legal or equitable, certain or contingent, present or in reversion, or remainder, whether in possession or not,” to “institute an action against any person or persons having or claiming to have any title, estate or interest in such property, whether in possession or not, to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property.”

In this case plaintiff restricted his claim (by his petition) to a “fee simple” title. He tenders that sole issue, and pleads no equitable estate or interest, no contingent estate, none in reversion or remainder. Section 650, supra, is highly remedial and must be (as it has been) most liberally construed (Graton v. Land & Lumber Co., 189 Mo. l. c. 332); but it ought not to be so construed as to overturn fundamental rules of pleading and practice. Plaintiff contented himself with pleading a fee simple title, his proof was directed to a naked legal title and he failed in his proof. That is the whole story, as we read it in the record.

Defendants’ abstract shows Mayer undertook to convey the real estate to Matthew A. Trevor. There is no conveyance from such grantee, but there is one from Matthew R. Trevor. There was an irregular conveyance from Albert G. Trevor to Mrs. L. C. Bascom; and an attempt to fortify that conveyance by a quitclaim deed from the same grantor, but it ran to Lucretia A. Bascom. Now, whatever title plaintiff had, he g'ot through Lucretia C.- Bascom. All these irregularities may be misprints in the record. If so, plaintiff has not deemed them worthy of correction; and, as defendants do not press them here, we mention them only to pass them by.

Nor need we consider whether such irregular deeds create 'color of title, which, accompanied by possession, might ripen into a good title. No such contention or issue is in the case.

One trouble with plaintiff’s alleged fee simple title is that he does not show he had any. His chain of title starts with Mayer — that is, nowhere; for if Mayer had title, it is not in proof. The uncertified platbook, allowed tentatively in evidence by the trial court, offered by plaintiff for “what it is worth,” was worth nothing for the serious purposes of jurisprudence. In 1872 the Legislature passed a revenue act (Laws 1871-2, p. 80'), section 40' of which made it the duty of the several county courts to procure from the United States land offices certain plats, showing sections and parts of sections by legal subdivisions, and showing all land subject to taxation, etc. That section has been brought forward as live law and is now section. 9159, Revised Statutes 1899'. This court construed that statute to mean that the county clerk was the custodian of these plats. [Payne v. Lott, 90 Mo. l. c. 681; Allen v. Ray, 96 Mo. l. c. 547; Nolan v. Taylor, 131 Mo. 224.]

Such platbooks are admissible in evidence under Revised Statutes 1899, section 3094, when certified as required by that section. We need not consider the principles of the law of evidence applicable to ancient documents, because this case does not require such consideration. Suffice it to say, the platbook was not certified, and, for aught appearing here, never had been certified according to law, and, therefore, it should have been excluded. With the exclusion of that evidence, plaintiff’s title as now produced (conceding for present purposes that the deeds introduced by him were from proper parties) was struck to the ground.

We take occasion to repeat that there is no common source of title agreed to or disclosed by the proof. Hence, the rule applied in Harrison Machine Works v. Bowers, 200 Mo. 219, and in Graton v. Land Co., supra, and in Gage v. Cantwell, 191 Mo. 698, is not applicable to the case at bar. The rule announced in those cases was to the effect that the doctrine of a common source of title applied in cases brought under section 650, supra, as well as in ejectment suits — that is, that where there is a common source of title, incidents of title arising prior to the common source are immaterial.

II. In 1903 the Legislature enacted a sweeping statute, labeled, “Relating to Setting Aside of Tax-Deeds.” [Laws 1903, p. 254] That statute is as follows:

“Section 1. That no suit, or action, in any of the courts of this State, either at law or in equity, shall hereafter be maintained by any person or corporation, against any other person or corporation, for the determination of the title to, or for the recovery of the possession of, any lands, which shall have been sold for taxes, or any interest in any such lands, or for the setting aside, or cancellation of any tax deed or sale of land for taxes, alleged to have been void, voidable or defective, unless such person or corporation so seeking. to recover such lands, or some interest therein, or the setting aside of such tax-deed or tax-sale, shall, in his petition, offer to refund to the defendant therein, or to such other person, or corporation, from whom, and against whom such recovery is sought, in such action, all taxes paid by such defendant, or other persons, and his grantors, remote or immediate, or by those under whom he claims, together with interest thereon from the date of payment of such taxes to the date of the judgment in such action. No actual tender shall be required to be made by such plaintiff, or other person seeking such recovery or cancellation of such deed, but it shall be deemed sufficient if an offer to pay the same, as soon as the amount thereof shall be ascertained, shall be made and set out in such petition. All courts before .which any such action may be brought, or maintained shall, if the judgment in such action be adverse to the defendant, or defendants therein, and the recovery of such land, or any interest therein be adjudged or decreed, find and adjudge by its decree or judgment the amount of money due to the defendant, or to other persons, on account of taxes or interest thereon paid as aforesaid, by defendant, or his grantors as aforesaid, and all such courts may, if such relief be prayed for in the answer, or the other pleading of the defendant, or other person, entitled to reimbursement, adjudge and decree that the amount so found by the court, or a jury, shall be and constitute a lien upon the land recovered, or in controversy.
“Sec. 2. Any person or corporation may, in addition to any other defense which he may have to any such action mentioned in the preceding section, set'up in his answer, or other pleading, a claim for taxes and interest thereon, paid by him or his said grantors, or other person under whom he may claim said land, and may pray that the amount of such taxes and interest, if the judgment or decree of the court be adverse to him, shall, when ascertained by the court or a jury, be decreed to be a lien on the land, or the interest therein, which may be thereon, shall in nowise affect the merits of any other defense, which may be pleaded, but shall be allowed as a matter of course, arising out of the litigation. ’ ’

Several contentions are made by defendants pertaining to the foregoing act. For instance, it is contended that said act applies to suits to determine interests in land and quiet land titles under section 650, Revised Statutes 1899', supra. That they are in pari materia, and hence, must be construed together. That said act of 1903 is necessarily retrospective in its application. [See, in this connection, Petring v. Current River Land and Cattle Co., 111 Mo. App. 373, holding to the contrary.] That the taxes to he repaid under the provisions of that act are unaffected by the Statute of Limitations. That this suit was commenced after the act went into effect, and, therefore, said act must control this case. [See, in this connection, Burkham v. Manewal, 195 Mo. l.c. 509.] And that, finally, under the act of 1903 the Code of Civil Procedure is somewhat affected in that by such act the duty is cast upon a plaintiff who brings a suit under section 650, supra, to affirmatively and specifically plead the antagonistic claims, if any, of the defendant, under a tax sale and deed followed by tax payments. Defendants’ learned counsel favor us with their view on these contentions, and we are asked to construe said act of 1903 in the foregoing particulars. Plaintiff stands mute here, and we know nothing of his contentions except we may infer by indirection that, at least below, he controverted some of them, and that the trial court leaned his way- — although the court struck out plaintiff’s tender of taxes paid, and did so at the request of defendants.

We deem it judicial wisdom to decline to consider all the foregoing questions. Our notion is that such questions are not concrete questions in this case. And this is so because the pleadings do not raise such issues. The petition says nothing about a tax proceeding, or that defendants claim under a tax deed. The answer may be said to refer to those matters only by indirection. They are lugged into the answer in an argumentative way — more by way of demurrer to plaintiff’s petition, than as allegations of substantive matter. The replication denies the existence of the act of 1903, or at least intimates that defendant has not pleaded the act correctly. In fact, both parties litigant have been a little coy and shy in taking the initiative in pleading — both of them seem to eye that law with apparent uneasiness — the plaintiff, doubtless, thinking it was a matter of defense, and the defendants, doubtless, wishing to fight in the open and not to he “ cribbed, cabined or confined” too closely in the matter of defense. It seems to us the questions raised are of too much gravity to be decided in a case where they are not directly and necessarily involved — especially so where such case is only briefed on one side.

The cause is, therefore, reversed and remanded for the error pointed out in paragraph one, with leave to both sides to amend their pleadings, if they see fit, or retry the case on the pleadings as they now stand — plaintiff, on another trial, avoiding the error heretofore pointed out, and producing competent proof, if any exists, that his title emanated from the general Government. We think, too, that in the present condition of the case both parties litigant should take the usual chances of rightly construing for themselves (in the first instance) the act of 1903, in connection with section 650, supra, and in connection with the Code of Civil Procedure, and that we- should reserve to ourselves the right to consider such questions open.

Since writing the foregoing opinion there has been a case decided in this division, Haarstick v. Gabriel, 200 Mo. 237, and a case decided by Division Two of this court, Manwaring v. Mo. Lumber & Mining Co., 200 Mo. 718, in which we have held that the act of 1903 is not in its operation retrospective ,• and learned counsel and the court, nisi,, will have the benefit of these pronouncements to guide them in the trial of this cause anew.

All concur.