author: LAMM, J.

text:
    LILLIE HOCKADAY, Appellant, v. CICERO LYNN et al.
    Division One,
    December 22, 1906.
    1. ADOPTED CHILD: Right to Inherit from Collateral Kindred of Parent. An adopted child does not, by reason of such adoption, become an heir to the real estate of a brother of her adopting parent who dies, intestate and without decendants, after the death of the adopting parent. The adoption makes her an heir only to the property of the adopting parent, and does not make her an heir by representation to the property which might have come to her adopting parent had such parent survived his bachelor brother.
    2. -: -: Statutes: Restricted to Adopting Parent. The effect of the adoption of a child is, by the Statute of Adoption, restricted to the adopting parent. The adopted child does not become the child of the married woman by the adoption of her husband, but to become her child the adoption must be joined in by her.- For a stronger reason the adopted child does not become an heir of collateral kindred of the adopting parent.
    3. --: -: -: Construction: Consanguinty. Statutes of adoption have always been construed more or less strictly against the adopted child, except that strict construction is not extended to the act of adoption itself. But when the right of such child to inherit is in issue they will be so construed. And in the Statute of Descents and Distributions the idea of blood kinship is sharply accentuated by the use of such words as “kindred,” whose primary legal meaning is “relatives by blood.” Consanguinity is so fundamental in those statutes that it can be ignored only when courts are forced to do so, either by the express terms of the statute, or by inexorable implication.
    4'.--: -: Inheritance: From Whom. If one inherit a share in an estate Which his deceased father would have inherited, he inherits not from the father, but directly from the intestate. Therefore, the adopted child does not inherit from the brother of the adopting parent, since she is not of the brother’s kindred, but an alien to his blood, and her adoption was brought about by a contract between others.
    Appeal from Cass Circuit Court. — How. H. C. Timmonds, Special Judge.

      ApEIKMED.

      Chas. W. Sloan and B. T. Bailey for appellant.
    (1) Plaintiff was the legally adopted child of James Lynn, deceased, and as snch was entitled to inherit as if born to him in lawful wedlock — or just as a child by blood. Lynn v. Hockaday, 162 Mo. Ill; secs. 968, 970, R. S. 1889; see. 5248, R. S. 1899; Posburgh v. Rogers, 114 Mo. 133; Moran v. Stewart, 122 Mo. 295, 132 Mo. 73; In Re Estaie Moran, 151 Mo. 557 ;• Warren v. Prescott, 24 Atl. 948, 84 Me. 483; Ross v. Ross, 129 Mass. 243; Gray v. Holmes, 57 Kan. 217; Power v. Hafley, 85 Ky. 671; Stearns v. Allen, 183 Mass. 404; Humphries v. Davis, 100 Ind. 280; Wagner v. Warner, 50 Iowa 532; Burrage v. Briggs, 120 Mass. 103; Glascock v. Bragg, 87 N. W. 853; Parsons v. Same, 101 Wis. 76. (2) Plaintiff having been adopted as a “child and heir at law of James Lynn, deceased,” she became en-tiled to all the rights flowing from the relation of parent and child. Lynn v. Hockaday, 162 Mo. 127. (3) An heir at law is to be construed interchangeably with the words “children,” “grand children,” “descendants,” or “issue.” Waddell v. Waddell, 99 Mo-. 345; Maguire v. Moore, 108 Mo. 267; Flanning v. Dolan, 128 Mo. 323; Buckley v. Fraser, 153 Mass. 525; Estate Wm. G. Williams, 62 Mo. App. 339; Moran v. Stewart, 122 Mo. 295; sec. 4520, R. S. 1889. (4) Plaintiff having been legally adopted as a child and heir of Jas. Lynn, that fixed her status as an heir, and she should be considered so in our Statute of Descents. Posburgh v. Rogers, 114-Mo. 133; Ross v. Ross, 129 Mass. 266; Power v. Hafley, 85 Ky. 671; McKamie v. Baskerville, 86 Ky. 459'. (5) In the statute authorizing plaintiff’s adoption there are no limitations against her general right to inherit from adopter as any other natural child. Sec. 5248, R. S. 1899; In matter Chas. B. Clements, 78 Mo. 352; Posburgh v. Rogers, 114 Mo. 133; Ross v. Ross, 129 Mass. 266; Moran v. Stewart, 122 Mo. 295, 132 Mo. 73, 173 Mo. 217; sec. 4518, R. S. 1889; In Re Estate Moran, 151 Mo. 557. (6) Lillie Hockaday having been adjudicated a child and heir of James Lynn, she thereby became to all intents and purposes a descendant of Jas. Lynn, and as such entitled to • inherit from Vm. E. Lynn, deceased. Secs. 4465, 4518, R. S. 1889; Moran v. Stewart, 122 Mo. 295. (7) The Legislature had the same power to give Lillie Hockaday as an adopted child the right to inherit as to a bastard. Moore v. Moore, 169 Mo. 440; Fosburgh v. Rogers, 114 Mo. 133; Power v. Hafley, 85 Ky. 671; Virgin v. Marwick, 97 Me. 578; Warren v. Prescott, 84 Me. 483; McKamie v. Baskerville, 86 Tenn. 459; see. 2916, R. S. 1899. (8) The following cases relied on by defendants in the court below, to-wit: Keegan v. Geraghty, 101 111. 26; Clarkson v. Hatton, 143 Mo. 47; Meador v. Archer, 23 Atl. 521; Phillips v. McC'onica, 59 Ohio St. 1; Estate Sunder-land, 60 Iowa 732; Moore v. Moore, 35 Vt. 98; Reinders v. Koppelman, 68 Mo. 482; it is insisted will not sustain the contention of respondents in this case.

      Allen Glenn for respondents.
    (1) This property was not James Lynn’s property; was not subject to payment of James Lynn’s debts. Neither could he pass it by will, nor could he < bind it by contract. Barnum v. Barnum, 1191 Mo. 67; Estate Wm. G. Williams, 62 Mo. App. 350; 1 Woerner’s Am. Law (2 Ed.), 140; secs. 2908,146, R. S. 1899; Westerman v. Schmidt, 80 Mo. App. 346. (2) Adopted heir is not a bodily heir of adopting parent. Clark-son v. Hatton, 143 Mo. 59; Blodgett v.-Stowell, 75 N. E. 138. (3) Nor will wife of adopter inherit from adopted child. Reinders v. Koppleman, 68 Mo. 482; Upson v. Noble, 35 Ohio St. 655; Hale v. Robbins, 53 Wis. 514; Hill v. Nye, 17 Huu 457; Isenhour v. Isenhour, 52 Ind. 328; Sharkey v. McDermott, 16 Mo. App. 80. (4) For all purposes of inheritance from the adoptive parent, the adopted child becomes and is the lawful child of such adoptive parent, save in so far as the statute authorizing the adoption may otherwise provide. Such inheritable right does not conflict with the Statute of Descents, for the statute with regard to adoption points out who are to be considered children within the meaning of thé Statute of Descent. However, as against the adopted child, the .statute should be strictly construed, because it is in derogation of the general law of inheritance, which is founded on natural relationship and is a rule of succession according to nature which has prevailed from time immemorial. 1 “Cyc.” 931 and 32; Meier v. Buchter, 94 S. W. 883; Clarkson v. Hat-ton, 143 Mo. 52; Moran v. Moran, 151 Mo. 558; Moran v. Stewart, 132 Mo. 73; Fosburgh v. Rogers, 114 Mo. 122. (5) An adopted child cannot inherit from the collateral kindred of its adoptive parent, nor from the ancestors of the adoptive parents, nor from the adoptive parent’s natural children. 1 Cyclopedia of Law and Procedure, 933, clause 3; YanMetre v. Sankey, 148 111. 536; Keegan v. G-eraghty, 101 111. 26 ; In Re Sunderland Estate, 60 Iowa 732; Moore v. Moore, 35 Yt. 98; Meador v. Archer, 65 N. H. 214; Phillips v. MeCornica, 59' Ohio St. 1; Quigley v. Mitchell, 41 Ohio St. 375; Barnhizel v. Ferrell, 47 Ind. 335; Helms, v. Elliott, 89 Tenn. 446; 27 Am. and Eng. Ency. Law (2 Ed.), 334; 7 Ballard on. Real ■ property, sec. 169; Warren v. Prescott, 17 L. R. A. 438; Tiffany on Domestic Relations, p. 222; YanDerlyn v. Mack (Mich.), 66 L. R. A. 437. (6) Bastards inherit and transmit inheritance on part of the mother. Sec. 2916, , R. S. 1899'. Not so with adopted children; their rights extend wholly to the adopting parties. Sec. 5248', R. S. 1899.
   LAMM, J.

Cast on demurrer lodged below, plaintiff stood on ber petition, submitted to judgment and appealed.

The case is this:

In 1900 William E. Lynn, a bachelor, died intestate, seized of an undivided half interest in a farm of 295 acres in Cass county, leaving surviving him a brother, Cicero, and nephews and nieces (the children of a deceased brother and the children of a deceased sister) and their descendants. The deceased brother (James Lynn) diedin 1896, leaving one son and also an heir by adoption, the plaintiff, now intermarried with one Hockaday.

Plaintiff’s theory being that she was an heir of her adoptive father’s brother, William E. Lynn, she sued Cicero and said surviving nephews and nieces (and the descendants of those dead) in partition.

In addition to conventional averments, plaintiff pleaded her adoption, her intermarriage with Hockaday, and further set forth an adjudication in her favor establishing her right as an adopted child of said James Lynn. [See Lynn v. Hockaday, 162 Mo. 111.]

Defendants ’ theory being that plaintiff took nothing as heir to the brother of her adoptive father, and all the facts appearing in her petition, they demurred with the result aforesaid. Such demurrer conceded the truth of every averment well pleaded in the petition, hence the issue below became one of law. It is, moreover, one of first impression in this State, and may be formulated, thus:

Does an adopted child, by reason of such adoption, become an heir to the real estate of a brother of her adopting parent who died after such parent, intestate?

Or, put another way, as formulated by defend-ants’counsel: “Does the adoption make her an heir only to the property of James Lynn, the adopting parent, or does the adoption make her an heir by representation in all the property which might have come to her adopting parent had snch adopting parent survived his bachelor brother?”

The question presented being new, its answer must be got at by attending to the history of the law of adoption, its growth, the Statute of Adoption, the Statute of Descents and Distributions, the analogies of the law to be searched out in cases decided by this court on related questions, and to the persuasive authority of the pronouncements of the highest courts of other States.

Adoption was unknown to the old common law of England. [Ross v. Ross, 129 Mass. l. c. 262; Schouler’s Dom. Rel. (5 Ed.), sec. 232.] It was known to the Roman law, was attended by ceremonial dignity and was of deep meaning and far-reaching* results — a notable historical example of which is cited by Napton, J., in Reinders v. Koppelmann, 68 Mo. l. c. 496 (from the leading* case of Vidal v. Commagere, 13 La. Ann. 517) whereby Tiberius, being the stepson and adopted son of Augustus, his nephew, Germanicus (adopted by Tiberius on the command of Augustus Caesar), became the grandson of Augustus himself.

“Adoption,” says Merrick, C. J., in Vidal v. Commagere, supra, “was known to the Athenians and Spartans, as well as the Romans and ancient Germans, and was familiar to the writers of the New, if not the Old Testament.” [See, also, In the Matter of Upton, 16 La. Ann. 175; 1 Cyc. 917; Abney v. DeLoach, 84 Ala. 393.]

It seems to have taken root in Egypt (Exodus 2:10). Paul, himself a lawyer profoundly instructed in Hebrew jurisprudence, assumed the doctrine of adoption to be well known to his readers, and borrows the use of the doctrine as a hammer to clinch nails driven by him on matters of faith. [Rom. 8; 16, 17. q. v.] The doctrine was not unknown to the Babylonians — witness the Code of Hammurabi, compiled from 2285 to 2242 B. O. Sections 185 to 193 inclusive of that code are curious and read as follows:

“Section 185. If a man has taken a young child ‘from his waters’ ” (like Moses was taken by tbe daughter of Pharaoh,-possibly, g_. v.) “to sonship, and has reared him np, no one has any claim against that nursling.
“Section 186. If a man has taken a young child to sonship, and when he took him his father and mother rebelled, that nursling shall return to his father’s house.
‘ ‘ Section 187. The son of a NER-SE-G-A, a palace warder, or the son of a vowed woman no one has any claim upon.
“Section 188. If an artisan has taken a son to bring up, and has caused him to learn his handicraft, no one has any claim.
“Section 189. If he has not caused him to learn his handicraft, that nursling shall return to his father’s house.
“Section 190. If a man the child whom he took to his sonship and has brought him up, has not numbered him with his sons, that nursling shall return to his father’s house.
‘ ‘ Section 191. If a man, after a young- child whom he has taken to his sonship and brought him up, has made a house for Mmself and acquired children, and has set his face to cut off the nursling, that child shall not go his way, the- father that brought him up shall give to him from Ms goods one-third of his sonship, and he shall go off; from field, garden, and house he shall not give him.
“Section 192. If a son of a palace warder, or of a vowed woman, to the father that brought him up, and the mother that brought him up, has said ‘thou art not my father, thou art not my mother,’ one shall cut out his tongue.
“Section 198. If a son of a palace warder, or of a vowed woman, has known his father’s house, and has hated the father that brought him up or the mother that brought him up, and has gone off to the house of his father, one shall tear out his eye.”

Adoption was also an incident of Spanish law, was incorporated into the Code Napoleon, and from that code (or the Spanish law) found its way through Louisiana and Texas into the statutes of their sister States. [Tiffany’s Per. & Dom. Rel. sec. 112; Ross v. Ross, supra; Reinders v. Koppelmann, supra.]

As shown by Napton, J., in the Reinders case, our statute was not directly borrowed from the Roman law, and is, therefore, not attended with all the incidents of that law — one incident of which was that the adopted child took on the full rights of a child in its new family and lost its birth rights, becoming a stranger and an alien in the family of its origin.

Prom the twilight of remotest time it was considered that the “life of the flesh was in the blood.” [Lev. 17: 10,11, 12.] Blood was of the mysterious essence of religious rites. The blood atonement, the blood tie, to have the same blood run in one’s veins, to be bone of the bone, flesh of the flesh, were of the essential elements of things, earthly and spiritual. Hence, when the Mingo chief exclaimed, “There runs not a drop- of my blood in the veins of any living creature,” the picture of his savage desolation was made complete at one stroke.

Nevertheless, it is pointed out by those scholars who have dug up the origin of things from the dust of the past that the yoke of the blood tie, in this age or that, lay loosely on ancient peoples. It is shown that children might be lawfully exposed (devoted) to death, fed to beasts, burned in the red hot bowels of war idols, sacrificed to vows — witness the fate of Jepthah’s daughter and the fate of Iphigenia, the child of Agamemnon ’s loins; and vacancies were filled by transplanting, or, to put it otherwise, grafting was allowed. Especially was this transplanting in vogue during the decadence of the Roman empire. [Sehouler’s Dom. Rel. (5 Ed.), p. 362.] It may, then, be said that, whether from sentimental causes or peculiarities of feudal tenures, the adoption of children came to be eyed somewhat askance by Anglo-Saxon peoples.

Adoption being unknown to the common law and in derogation of it, statutes of adoption have always been more or less strictly construed as against the adopted child. [Keegan v. Geraghty, 101 Ill. 26; Clarkson v. Hatton, 143 Mo. l. c. 57; Reinders v. Koppelmann, 94 Mo. 338.] This frosty attitude is shadowed forth in the peculiar and cautious terminology of text-writers. Thus, Tiffany speaks of the relation as an “artificial relation.” [Tiffany’s Per. & Dom. Rel., sec. 112.] Schouler speaks of the relation as a “quasi-parental relation.” [Schouler’s Dom. Rel. (5 Ed.), sec. 232.] Strict construction, however, is not extended to the act of adoption itself. That is liberally construed in favor of the child adopted. [Parsons v. Parsons, 101 Wis. 76; Lynn v. Hockaday, 162 Mo. supra; Sharkey v. McDermott, 91 Mo. 647.]

Speaking of this plaintiff, Valliant, J., in Lynn v. Hockaday, supra, p. 126, says: “Like a bud that has been cut from its natural stem and grafted into a foreign tree, she grew into the family and became a part of its very life — everything that adoption contemplates was accomplished.” That metaphor, chaste as a gem, does not mean, nor was it intended to mean, that plaintiff passed current as an heir, made such by the mold and stamp of consanguinity. It means that as between her and James Lynn she was given “everything that adoption contemplates” — that and no more. So, too, Black, J., in Moran v. Stewart, 122 Mo. l. c. 299, says: “Eor all the purposes of inheriting from the adopting parent the adopted child becomes, and is, the lawful child of such adopting parent.”

It appears, then, that the event of adoption fixes the status of the child adopted in relation to the adoptive parent and to no one else. Says Tiffany, supra: “The law cannot, and does not purport to, do the work of nature, and create one a child who by nature is a stranger. But it can and does fix the status of the adoptive child to the adoptive parent as substantially the same as the status of a natural child. ”

Osborn, J., speaking to the point in Barnhizel v. Ferrell, 47 Ind. l. c. 338, says:

“By the act of. adoption, the child is entitled to inherit from his adopted” (adoptive?) “parent as his heir, in the degree, .of a child. [Barnes v. Allen, 25 Ind. 222, 226.] The act does not provide that he shall be the child of the adopting parent, but he shall take the name, and be entitled to take his property by descent or otherwise, the same as he would if he was his child or natural heir, and the adopting parent shall occupy the position toward the . child of a father or mother, and be liable in every way as such. In Schafer v. Eneu, 54 Pa. St. 304, it is said: ‘ The right to inherit from the adopting parent is made complete, but the identity of the child is not .changed; one adopted has the rights of a child without being a child.’ And in Commonwealth v. Nanerede, 32 Pa. St. 389', the same court say: ‘Giving an adopted son a right to inherit, does not make him a son in fact. And he is so regarded in law, only to give the right to inherit. ’ ’ ’

In Schafer v. Eneu, supra, Strong, J., further said: “Adopted children are not children” (i. e., by the law of nature) “of'the person by whom they have been adopted, and the Act of Assembly does not attempt’the impossibility of making them such.” Indeed, it may be asked: Which of you by taking thought can add one cubit to his stature? No more, then, can A, by taking thought (i. e., by making a contract) máke a stranger of blood kin to A’s own kindred — make an adopted child have inheritable blood to A’s collateral kin.

Apposite to this view it may be said that laws of descent and distribution, barring the one incident of a husband and wife’s rights by marriage, are universally built on, and around, the idea, of blood kinship. Inheritance flows naturally with the blood. [Hole v. Robbins, 53 Wis. l. c. 517.]

True it is that laws of descent and distribution are subject to arbitrary change by ■ the law-making power, but to arbitrarily change them so as to repudiate or eliminate the basic principle of blood kinship would breed trouble and dismay. So deep does that notion run in the human breast and through our case-made law that if it be ignored in a will the fact of such unhappy and unnatural disposition of property may be put in as evidence tending to show testamentary incapacity, or undue influence, and when united with other facts, may be sufficient to set the will aside. [Meier v. Buchter, 179 Mo. 68.]

An analysis of Revised Statutes 1899, section 2908, of our Statute of Descents will show how closely it adheres to blood kinship in the devolution of estates. By that section the property (not limited by a marriage settlement) of one who dies intestate is made to descend in parcenary to “Ms kindred,” male and female, subject to the payment of debts and the widow’s dower. The word “kindred,” in its primary legal acceptance, means “relatives by blood.” [Black’s Law Dict., Tit. “Kindred;” Keteltas v. Keteltas, 72 N. Y. 312; Helms v. Elliott, 89 Tenn. 446.]

The idea of blood kinship is sharply accentuated by section 2911 of the same statute. That section directs that when inheritance is directed to pass to the ascending and collateral kindred of the intestate, if part of such collaterals be of the whole blood of the intestate, and the other part of the half blood only, those of the half blood shall only inherit half as much as those of the whole blood, etc.

But it is useless to further pursue the theme, since, in a general way, it may stand assumed as sound law that consanguinity is so fundamental in Statutes of Descents and Distributions that it may only be ignored by construction when courts are forced so to do, either by the terms of express statute or by inexorable implication.

The Supreme Court of Indiana, in an adoption case, Humphries v. Davis, 100 Ind. 274, in a most learned opinion by Elliott, J., somewhat criticises the conclusion arrived at in the earlier case of Barhizel v. Ferrell, supra, and somewhat criticises the conclusion reached by our own court in Reinders v. Koppelmann, 68 Mo. supra. It is not to our purpose to weigh those criticisms, but we may adopt with approval the following language from the Humphries case: “A statute is not to be construed as if it stood solitary and alone, complete and perfect in itself, and isolated from all other laws. It is not to be expected that a statute which takes its place in a general system of jurisprudence shall be so perfect as to require no support from the rules and statutes of the system of which it becomes a part, or so clear in all its terms as to furnish in. itself all the light needed for its construction. It is proper to look to other statutes, to the rules of the common law, to the sources from which the statute was derived, to the general principles of equity, to the subject of the statute, and to the condition of affairs existing when the statute was adopted.”

Referring to the foregoing general rules for finding a place for a new statute, setting bounds to its orbit, and making it dovetail into and become harmonious with a general system of law, it may be said this court has applied the same principles in effect. Thus, in Moran v. Stewart, 122 Mo. 295, while guardedly restricting the right of an adopted child to inheritance from its adoptive parent, it is held that (for that purpose) the adopted child is a child within the purview of Revised Statutes 1899, section 2939, on dower. It is there held that the event of adoption defeats the widow’s right to elect under the statute to he endowed of one-half of the real estate and personal estate belonging to her husband upon his death without leaving any “child or other descendants.” See, also, Fosburgh v. Rogers, 114 Mo. l. c. 133, in which the strict letter of the Statute of Descents and Distribution is gently wrested to allow an adopted child to come in to inheritance, but only as to the adoptive parent. Other cases might be cited to the same effect.

In fact, it may be laid down as a general conclusion that while the Statute of Adoption must be read into the Statute of Dower and that of ■ Descents and Distribution, it is with this singularity, always to be observed, viz., that the adopted, child is so let in only for the purpose of preserving in full its right of inheritance from its adoptive parent; and the door to inheritance is shut and its bolt shot at that precise point.

If we look to our Statute on Adoption it will be found to be writ large there that an adopted child bears only the badge and relation of child to the adopting parent. In Revised Statutes 1899, section 5246, it is provided that “if any person in this State shall desire to adopt any child ... as Ms or her heir or devisee, it shall be lawful for such person to do the same by deed,” etc. The very next section (section 5247) provides that: “A married woman, by joining in the deed of adoption with her husband, shall, with her husband, be capable of adopting any child or children.” It will thus be seen that, in the legislative mind, the effect of the adoption of a child is restricted to the adopting parent, and, hence, the adopted child does not become the child of a married woman by the adoption of her husband, but to become such child the adopition must be joined in by the wife.' If this be true of a wife, how much more strongly must it be true of collateral kinsfolk?

Defendants argue that aid for their theory may be had from section 5248, which provides in substance that from the time of filing the deed of adoption with the recorder the adopted child shall have the same right against the person or persons executing the deed, for support and maintenance and for proper and humane treatment, as a child has by law against lawful parents; and shall have and enjoy such rights and privileges against the persons executing the deed of adoption — the last clause of that section reading: “This provision shall not extend to other parties, but is wholly confined to parties executing the deed of adoption.” This section has been up for construction more than once. The most elaborate effort in its exposition was in In. The Matter of Clements, 78 Mo. l. c. 355, where Hough, C. J., for this court, put this construction thereon, to-wit, that its peculiar language refers to the custody and control of the child adopted, and “as the Legislature had no power to authorize one person, whether acting from motives of charity, benevolence or caprice, to transfer to himself at his own electing, the custody and control of the child of another,” nothing in that section should be binding on the natural parents of the adopted child without the consent of such natural parents, which consent might be evidenced by joining in the deed. This section, therefore, throws no light on one side or the-other of this controversy except there may be some ■ slight evidence found therein of the trend of the legislative mind toward binding no one to the event of adoption except the actual parties to the event.

As said heretofore, the exact question presented has not been adjudicated by an appellate court in this State, but by analogy certain postulates may be established, the trend of the judicial mind may be got at and a sound conclusion reached.

For instance, if one inherit a share in an estate which his deceased father would have inherited, he inherits not from the father but directly from the intestate. [Barnum v. Barnum, 119 Mo. 63.] Applying that principle here, if plaintiff is to inherit at all from "William E. Lynn, it is not from her adoptive father, James Lynn, who died before William E., but she is to inherit directly from William E. Lynn. This being so, her kinship to William E. Lynn is the only conduit through which her title may flow. The blood tie is the open sesame to unlock the treasure of inheritance. But here there is no kinship in the case — nothing but a dry contract with another. As to William E. Lynn, the event of adoption was res inter alios acta — plaintiff is an alien to his blood, and, therefore, it may well be argued, as defendants’ counsel do, that by the Statute of Descents and Distributions she takes nothing, under the doctrine of Barnum v. Barnum, supra.

Again, it was held in Clarkson v. Hatton, 143 Mo. 47, that the phrase “bodily heirs” did not include adopted children. It was held further, showing the strictness of this court’s construction in the matter in hand, that the words “children” and “heirs” in certain sections of the statutes of uses and trusts pertaining to fee tail estates do not include adopted children. And, further, that an adopted child remains the child of its natural parents and inherits from those parents.

It was held in Reinders v. Koppelmann, 68 Mo. supra, that the estate of an adopted child (on his death intestate) will go to his blood relations, and not to his relations by adoption. It’s a poor rule, won’t work both ways.

In Reinders v. Koppelmann, 94 Mo. 338, it was held, in effect, that the phrase “nearest and lawful heirs of my said wife” did not include an adopted daughter of said wife. After considering the case in the light of the language of testator himself, Brace, J., arguendo, formulates the views of this court (which are not without weight on the issue in the case at har), as follows:

“If, however, the testator had not hung out this light, hy which his meaning may he easily read, it would seem that the very terms, ‘nearest and lawful heirs,’ would he sufficient to exclude the idea of an adopted heir; the status or relation of an adopted heir is a lawful one, since the law sanctions and provides a method for its creation, but the relation is not the creature of the law, hut of the deed of adoption; a child hy adoption is, in a limited sense, made an heir not by the law, hut hy contract evidenced hy deed; adopted heir or heir hy adoption would he appropriately descriptive of such relation; contradistinguished from such an heir are those upon whom the law-casts descent, who are constituted heirs hy law; these are appropriately described as heirs-at-law, or heirs hy the law. This distinction would, of course, he of little value in construing the will of a layman, if it were not almost universally and unconsciously recognized in the affairs of life; and that in common parlance we find that the terms, heirs-at-law and lawful heirs, are used indiscriminately as synonymous and convertible terms, and whenever either is used, they are invariably referred to the heirs upon whom descent is cast hy law, and not to an heir hy adoption. The relation of an heir hy adoption is an exceptional and unusual one, and' does not come within the ordinary and usual meaning of the words, lawful heirs, and those words ought not to he held, ex vi termini, to include an adopted heir, hut when the testator uses the further and qualifying word ‘nearest,’ it would seem that one who is simply and only an heir hy deed, deriving all his rights from the deed of adoption ■executed long after the death of the testator, and none against any person other than his adoptive parent, must, hy the very terms of the will under which he •claims, he held to he excluded.”

Considering the history and Statute of Adoption, "the force of the foregoing rulings, and the reasons un.derlying the same, i. e., the philosophy of the law, we • are persuaded to the conclusion that the tendency of judicial construction in Missouri is not toward, hut away from, the theory so warmly urged upon ns by plaintiff’s learned counsel.

If we look elsewhere for persuasive authority, we find the exact point (and points involving similar contentions) uniformly held against plaintiff’s theory. To this effect are Van Matre v. Sankey, 148 Ill. 536; Keegan v. Geraghty, 101 111. 26; In re Sunderland Estate, 60 Iowa 732; Moore v. Moore, 35 Vt. 98; Meader v. Archer, 65 N. H. 214; Phillips v. McCorica, 59 Ohio St. 1; Quigley v. Mitchell, 41 Ohio St. 375; Barnhizel v. Ferrell, 47 Ind. 335; Helms v. Elliott, 89 Tenn. 446; Van Derlyn v. Mack, 137 Mich. 146; Morrison v. Sessions ’ Estate, 70 Mich. 297; Wyeth v. Stone, 144 Mass. 441.

The doctrine to be gathered from the foregoing cases is announced to be, in effect, to deny the right of the adopted child to succeed to the estate of any memr ber of the adopting family other than the adopting parent, and that such adopted child does not succeed to the estate of ancestors or collateral kin of the adopting parent, nor to the estate of children bom to the adopting parent. [27 Am. and Eng. Ency. of Law (2 Ed.), 334; 1 Cyc., 933.]

Though plaintiff’s learned counsel have industriously collated cases from other jurisdictions, yet we find on examination they have cited us to no case holding a doctrine contrary to. the above. Those cases apparently squinting at a contrary view, as, for example, Stearns v. Allen, 183 Mass. 404, take color from peculiar statutory provisions there under exposition. And- the same may be justly said of the other cases relied on.

But, it is argued by plaintiff’s learned counsel that such interpretation of the law puts too sour a complexion on it. If this he true, relief must he sought from the Legislature and not from the Judiciary.

It is finally argued that such interpretation puts an adopted child in a worse plight than a bastard — a bastard being allowed to inherit from his mother’s brothers. [Moore v. Moore, 169 Mo. 432; R. S. 1899', sec. 2916.] If this argument were based on a correct premise, it ought not to control. But the premise is faulty. The bastard at common law was the child of nobody — nullius films. He was a living example of the exceedingly old and right bitter adage (doubted, as unfair, even when in use): the fathers have eaten sour grapes and the children’s teeth are set on edge. [Jer. 31: 30, 31.] He could not inherit from the father — he was unknown. The law branded the mother, figuratively (and sometimes, actually), with a scarlet letter —and, to interdict the sin, denied inheritable blood to the sinless child. [2 Kent, 212.] But such is not the statutory law of modern times. By our law a bastard is allowed to inherit from his mother and (through her) from her blood kin, and she may inherit from her bastard child. [R. S. 1899, see. 2916, supra.] But in the ease of an adopted child, how much more kindly does the law deal with him? In the first place, he may inherit from, and transmit inheritance to, his own blood kin, lineal as well as collateral. In the second place, by the event of adoption, he has, ex contractu, the right of inheritance from his adoptive parent. And, if the doctrine of Napton, J., in Reinders v. Koppelmann, 68 Mo. supra, be sound, he. may not only inherit from the adoptive parent, but the property thus inherited may pass away from the blood of the adoptive parent and go to the blood of the adopted child. ■ The status of an adopted child in Missouri is thus in a sense made superior (in rights of inheritance) to any other child born in lawful wedlock — not to speak of those who have a bar sinister upon their escutcheon.

The case has been presented to us with such research and insistence by plaintiff’s learned counsel that we have given it what care and diligence we can command. And, turn the matter as. we may, and approach it from any side we may, we can come to but one conclusion, and that is: that under the Statute of Adoption and under the Statute of Descents and Distribution, on the doctrine of .this court enunciated in other cases, and on authority from other jurisdictions, as well as upon the reason and natural justice of the thing, the plaintiff cannot recover.

Hence, the judgment below must be affirmed.

All concur.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    RACHEL L. FROST v. DANIEL B. FROST, Appellant.
    Division One,
    December 22, 1906.
    1. DEED TO HUSBAND AND WIFE: Estate by Entirety: Married Woman's Statutes. A deed to a husband and wife creates an estate by the entirety. The title in such an estate, under our Married Woman’s statutes, is as it was at common law: neither husband nor wife has an interest in the property to the exclusion of the other; each owns the whole while both live, and at the death of either the other continues to own the whole, freed from the claim of any one claiming under or through the deceased.
    2. -: -: -: Separate Estate: Control. The statute, in declaring that the wife’s separate property shall be “under her sole control,” did not have reference to estates by the entirety.
    3. -: -: Sale: Reinvestment: Resulting Trust: Separate Estate. Where the husband and wife held land by entirety, and sold that land, and he with the proceeds bought other land and took the title in his name alone, the court cannot decree that the wife have judgment against the husband for one-half of the proceeds, and decree her a lien on the land purchased for the amount. She had no separate estate in that land. The husband had no right to take the title in his own name hut to the extent of the proceeds of the sale of the other land he held it in trust, and the decree should he .that, to that extent, there was an estate by the entirety in the land purchased in favor of both, and to that extent the title should he vested in both as an estate in entirety, and the remainder (the portion which was purchased with his own money) should he vested in him alone.
    Appeal from Cass Circuit Court. — Hon. W. L. Jarrott, Judge.
    Reversed and remanded (tuith directions).

      J. S. Brierly and T. N. Haynes for appellant.
    (1) The legal effect of the deeds under which, the nintv-eight acres of Clark land in Clinton county were held and as pleaded in plaintiff’s petition, was to create an estate in plaintiff and defendant as tenants by the entirety. Wilson v. Frost, 186 Mo. 311; Hume v. Hopkins, 140 Mo. 65; Bains v. Bullock, 129' Mo. 117; Russell v. Russell, 122 Mo. 235 ; Hall v. Stephens, 65 Mo. 670; Shroyer v. Nickell, 55 Mo. 264; Garner v. Jones, 52 Mo. 68; Gibson v. Zimmerman, 12 Mo. 385; Dias v. Glover, 1 Hoffman’s Chy. 71; Stuckey v. Keefe’s Ex’r, 26 Pa. St. 397. (2) The title to the Clinton county land being held by the entirety, Mrs. Frost had no separate interest therein as defined by section 4340, Revised Statutes 1899, and the husband by reducing the proceeds to his possession became the absolute owner thereof, it being unnecessary for any writing from his wife. Black v. Slaton, 92 Mo. App. 662; Tiffany on Dom. Rel., p. 140; Spierer v. Opfer, 40 N. W. 909; Curtis v. Crowe, 41 N. W. 876. (a) To entitle the wife to the sole use of property as against her husband, she must have acquired it in the manner pointed out by statute (section 4340'). Black, v. Slaton, 92 Mo. App. 666. (b) And unless property claimed by her was acquired in the manner pointed out by statute, the same is subject to the control of the husband. Cases supra. (3) An estate by the entirety cannot be segregated or partitioned while the marital relation exists, so as to give each grantee either an undivided interest in the land or a right in severalty to a particular part of it. Bains v. Bullock, 129 Mo. 117; Russell v. Russell, 122 Mo. 235; Thornton v. Thornton, 3 Randolph Í79; 2 Bishop, Mar. & Div., sec. 1652.

      C. W. Sloan and A. A. Whitsitt for respondent.
    (1) Even if the Clinton county land — which the evidence shows was conveyed to plantiff and defendant jointly — was paid for by defendant alone, and therefore so far as one-half of same constituted an advancement to plaintiff, the defendant as her husband would have no right to the proceeds of her half of what the land sold for, and which it is conceded was invested in Cass county 1 and, as she gave no written consent to an investment in defendant’s name. Gilliland v. Gilliland, 96 Mo. 522; Craig v. VanBebber, 100 Mo. 591; Hart v. Leete, 104 Mo. 335; McGuire v. Allen, 108 Mo. 403; Leete v. Bank, 115 Mo. 184; Jones v. Elkins, 143 Mo. 65; Curd v. Brown, 148 Mo. 92; Winn v. Riley, 151 Mo. 66; Hart v. Cook, 151 Mo. 427; Case v. Espenschied, 169 Mo. 219; Siling v. Hendrickson, 92'S. W. 105. (2) Plaintiff became the owner of one-half of the ninety-eight acres in Clinton county, conveyed by Clark and wife, August 6, 1895, and the interest acquired by her became her separate estate; the petition alleged, the proof showed and the court found, that she acquired the same from the proceeds of her separate estate. Bank v. Hageluken, 165 Mo. 443; Jones v. Elkins, 143 Mo. 647; James v. Groff, 157 Mo. 421; McGuire v. Allen, •108 Mo. 403; Winn v. Riley, 151 Mo. 67. And the evidence disclosed no consent, in writing, for defendant to invest the proceeds of sale of said Clinton county land in the Cass county land; nor can such consent be implied. Hart v. Cook, 151 Mo. 416; Rice v. Shipley, 159 Mo, 399; Broughton v. Brand, 94 Mo. 169, 169 Mo. 219; Siling v. Hendrickson, 92 S. W. 105.' (3) The evidence showed, and the court so found, that the one-half of the' ninety-eight' acres in Clinton county was purchased by the separaté means of plaintiff; and the mere fact that the land was conveyed to the husband and wife jointly did not operate to make an estate by the entirety. Johnston v. Johnston, 173 Mo. 118; McLeod v. Venable, 163 Mo. 536; Viers v. Viers, 175 Mo. 445. (4) A trust fund may be followed as far as it can be traced; and where a husband uses money of his wife in the purchase of land, she may have and enforce a specific lien against the land to satisfy her'debt. Crawford v. Greenleaf, 48 Mo. App. 590 : Harrison v. Smith, 85 Mo. 216; Munroe v. Collins, 95 Mo. 42; Phillips v. Over-field, 100 Mo. 466; Tufts v. Latshaw, 172 Mo. 373; Patterson v. Booth, 103 Mo. 413; Hockensmith v. Hóckensmith, 57 Mo. App. 374; Bircher v. Walt'her, 163 Mo. 468; Pearson v. Haydel, 90 Mo. App. 264; Farrell v. Farrell, 91 Mo. App. 673; Perry on Trusts (4 Ed.), sec. 128; Crawford v. Jones, 163 Mo. 577. As said in Johnston v. Johnston, 173 Mo. 118, “If money of wife is used in his [the husband’s] business his wife could treat him as her debtor or trustee as she chooses.” (5) Even if the court should find the ninety-eight acres of land in Clinton county was held by plaintiff and defendant as estate in entirety, still, by reason of the joint sale of said lands, said estate became destroyed, and converted into money. And by reason of the Married Woman’s act in force at the time in this State, she owned an equal interest therein. Johnson v. Johnson, 173 Mo. 115 ; Bains v. Bullock, 129 Mo. 120 ; Russell v. Russell, 122 Mo. 235; Freeman on Co-tenancy and Partition (2 Ed.), sec. 444-75; Joerger v. Joerger, 91 S. W. 920; 15 Am. and Eng. Ency. Law (2 EcL), 851; Buttlar v. Rosenblath, 42 N. J. Eq. 651; Hiles v. Fisher, .144 N. Y. 313; Kip v. Kip, 33 N. J. Eq. 213; 0’Conner v. McMahan, 44 Hun 66; Grosser v. Rochester, 148 N. Y. 235; Brown v. Brown, 34 Hun 487; Goelet v. Gori, 31 Barb. 314. (6) The Married Woman’s act is broad enough to permit a married woman to contract with her husband, and her contract with him will be enforced in law, just as if she had contracted with a third person. Under the Married Woman’s acts the husband and wife can deal with each other directly in law as in equity. She is not prohibited any longer from contracting with him, nor he with her. Rice, Stix & Co. v. Sally, 176 Mo. 107.
   VALLIANT, J.

Plaintiff is the wife of defendant. There are two counts in her petition. In the first it is alleged that the plaintiff and defendant jointly owned certain land in Clinton county, each owning an undivided half, which they sold for $3,000; that defendant collected and appropriated to his own use the whole sum, therefore plaintiff asks judgment for $1,500 and interest. In the second count it is alleged that in 1888 plaintiff and defendant being then husband and wife and residing in Missouri each owning “certain moneys” (how much each owned is not stated) invested those moneys in certain real estate in Clinton county “taking the title to said real estate in their names jointly, each owning an undivided half interest therein;” that in 1901 by their joint deed they sold the Clinton county land for $3,000, all of which sum came into the possession of defendant and with it he purchased 200 acres in Cass county at the price of $6,000; paying therefor $4,000 cash and executing a deed of trust for the remaining $2,000; that of the $4,000' cash, $3,000 was the proceeds of the Clinton county land, one-half of which plaintiff avers was her own separate estate; that at the time of the purchase of the Cass county land it was agreed between the plaintiff and defendant “that the deed shotdd he made to plaintiff and defendant jointly, giving to each one his respective share or interest, in the same manner that the title to the real estate in said Clinton county was held,” hut that in violation of that agreement defendant, without the knowledge or consent of plaintiff, took the title in his own name, in consequence, by implication of law, a trust has resulted in plaintiff’s favor. The prayer is that defendant be decreed to have taken the title, to the extent that her $1,500 represent the purchase money in the land in trust for her use. There was also a prayer for general relief. The answer was a general denial except the admission that plaintiff and defendant were husband and wife.

The cause was tried by the court without a jury. There was a finding of the issues for the defendant on the first count and judgment accordingly, from which there was no appeal. That count therefore is out of our way.

On the second count the finding and judgment were for the plaintiff, the judgment being that the plaintiff recover of defendant $1,400 and interest, viz., $1,436.63, for which execution was awarded and also that for satisfaction of the same the plaintiff should have a lien on the Cass county land. From that judgment the defendant has appealed.

At the trial the plaintiff endeavored to prove that some of her money went into the purchase of the Clinton county land; her proof on that point however was very vague and unsatisfactory. If she were here attacking the deed to the Clinton county land, seeking to reform it so as to establish a title by resulting trust in her favor on the ground that her husband used her money to purchase the land, her suit would fail because her proof is not sufficient; but such is not the character of this suit, she is not attacking the Clinton county deed, and the defendant is not disputing its terms.

Here the plaintiff comes alleging that she was the owner in fee as her separate statutory estate, of an individual half of the Clinton county land and relies on the deed conveying that land to her and her husband to prove that title. She says in her petition that when that land was sold it was agreed between her and her husband, that the proceeds should be invested in the Cass county land, “and that the deed should be made to the plaintiff and defendant jointly, giving to each one his respective share or interest in the same manner that the title to the real estate in Clinton county was held.” She stands on that Clinton county deed as it is, and avers that it gave her an undivided half of the land as her separate estate. But when the deed was produced in evidence it showed that the title was not as she alleged, but that it vested in her and her husband as an estate in entirety. Neither she nor her husband owned a half interest, they each owned the whole interest while both should live, and the' survivor would have the whole when either should die. While they both lived in the marital relation she would have the equal enjoyment of the property with her husband and in that qualified sense it might perhaps be said she had a half interest, but in addition to that right she had the contingent prospect of owning it all, and of that contingent right her husband could not deprive her.

Washburn, speaking of estates in entirety, says: “But if the estate is conveyed to them originally as husband and wife, they are neither tenants in common nor properly joint-tenants, though having the right of survivorship, but are what are called tenants by entirety. While such estates have, like a joint-tenancy, the quality of survivorship, they differ from that in this essential respect, that neither can convey his or her interest so as to affect the right of survivorship in the other. They are not seized, in the eye of the law, of moieties, but of entireties.” [1 Washburn, R. P. (6 Ed.), p. 562.]

The common law doctrine of estates in entirety is the law of this State. [Hall v. Stephens, 65 Mo. 670; Bank v. Fry, 168 Mo. 492.]

The text-writer last above quoted on the same subject adds that on the death of either the survivor does not acquire a new title, but holds only the same title which he or she took in the beginning, freed of the contingency. .

An estate in entirety is not a joint tenancy in which each holds an individual right. A joint tenant may destroy the joint tenancy and thereby destroy the right of survivorship by conveying his right to a third person, in which event his former co-tenant and the third person to whom the conveyance is made become, as to each other, tenants in common. But neither the husband nor the wife in an estate of entirety can so destroy the character of the estate as to prevent the survivor becoming the sole owner. An estate in entirety is a peculiar common, law estate sometimes said to be founded on the common law doctrine that the husband and wife are one. Perhaps it will not do to say that the estate rests entirely on that foundation, because sometimes we say that when the reason for a certain law ceases the law founded on the reason also ceases. Modern legislation has done much to destroy the unity of husband and wife, yet in spite of such legislation it has been held in this State and elsewhere that estates in entirety remain as at common law. [Hall v. Stephens, 65 Mo. 670; Bains v. Bullock, 129 Mo. 117; Bank v. Fry, 168 Mo. 492; Wilson v. Frost, 186 Mo. 311; Baker v. Stewart, 40 Kan. 442.]

Whilst estates in entirety originated in the common law and were therefore in harmony with the ancient theory that the husband and wife were one, yet, that such estates did not arise as a necessity from .that theory is shown by the fact that the common law also recognized that the husband and wife might become tenants in common. [1 Washburn, R. P. .(6 Ed.), p. 562; 4 Kent (14 Ed.), p. 414.] Therefore, the Married Woman’s statutes, by dispelling the idea of the unity of husband and wife, do not abolish or alter the char- ■ acter of estates in entirety.

This court has held that the rights of the parties in an estate in entirety are in so far affected by our Married Woman’s statutes that a wife who, in the ab- ' sence of her husband (he being an inmate of an asylum for the insane) was alone;in possession of the land and was wrongfully dispossessed by a stranger, could maintain ejectment in her own name and recover on the strength of her title in the estate in entirety. [Bains v. Bullock, above cited.] The court said: “The conveyance vests in the husband and wife the entire estate, not a. joint interest. Each is entitled to the possession as against ¿very person except the other.” The court said that since the Married Woman’s statute gave the wife the right to sue for whatsoever was hers, without joining her husband, therefore it was unnecessary for her husband to join in that suit, and that since as against everybody except her husband she was entitled to the whole estate she was entitled to recover in that suit. In the circuit court in that case the judgment was for the wife for an undivided half of the land. This court said: “That was error. There could be no division of the estate. ’ ’ She was entitled to recover the whole.

In Baker v. Stewart, above cited, it was contended that the effect of the Married Woman’s statute of Kansas was to convert that which would have been an estate in entirety at common law into an estate in common, but the Supreme Court of that State held that although by force of the Kansas statute a married •woman in the control and disposal of her separate' property was as free and unincumbered as a married man and although she had an equal right with her husband to the control of property in which their title was an estate in entirety, yet she had not a separate estate in it, and that on her death her title did not descend to her heirs; the court, per Valentine, J., said: “And nearly all the authorities hold that the statutes relating to married women, and giving them the right to control and manage their own separate property, do not in the least affect the question as to what estate passes by a deed to a husband and wife, or what either shall take-on the death of the other, and those authorities hold that such estate is still one of entirety.” Thereupon the court refers to a long list of cases which so hold.

Under the facts of the case at bar it is not necessary for us to decide whether or not under our Married Woman’s statutes the husband has been shorn of the exclusive right to the possession and control of the property held as an estate in entirety; it is sufficient to say, as we do say, that the title in such an estate is as it was at common law; neither husband nor wife has an interest in the property, to the exclusion of the other; each owns the whole while both live and at the death of either the other continues to own the whole, freed from the claim of any one claiming under or through the deceased.

• Our Married Woman’s statute, section 4340’, Revised Statutes 1899, after declaring what shall be her separate property, says that it shall be “under her sole control.” The lawmakers did not have estates in entirety in mind when they wrote that section.

There are decisions of this court which say that if a husband should invest his wife’s money-without her written consent in the purchase of land, taking the title in the names of himself and his wife so as to create an estate in entirety, she may in a snit in equity have a resulting trust declared in her favor and the estate in entirety be set aside and the title vested in her or in a trustee for her use. [Jones v. Elkins, 143 Mo. 647; Johnston v. Johnston, 173 Mo. 91.]

But those decisions do not proceed on the theory that the common law estate in entirety has been abolished or altered in any respect; they proceed on exactly the same principle that would govern in a case where the husband under like circumstances had taken the title in his own name exclusively. It would be a fraud of the same character on the wife if the husband should take a deed in the name of himself and her when it should have been taken in her name alone, as it would be if he had, under like circumstances, taken it in his own name alone. And by the same principle, if the husband takes the proceeds of property that belonged to him and his wife in entirety and invests the same in other land taking the title to himself alone, a court of equity, at the suit of the wife, will raise a resulting trust in her favor and decree that the husband holds the title in trust for his wife and himself as an estate in entirety.

The trial court erred, therefore, when it decided that one-half the proceeds of the Clinton county land, $2,800 (which is the amount the court found was the proceeds of that land) belonged to the plaintiff as her separate property. None of it belonged to her as her separate property, and none of it belonged to her husband as his exclusive property, the whole sum belonged to them both as husband and wife as an estate in entirety, and being so, the husband had no right to use it in the purchase of land taking the title in his own name; he should have taken the title, to the extent that that money purchased, in the joint names of himself and wife.

The evidence shows that the defendant invested the proceeds of the Clinton connty land, $2,800, together with $3,700 of his own money, making in all $6,500, in the Cass county land. To the extent that $2,800 represents the purchase price of the land the defendant was in duty-hound to have taken the title in the name of himself and wife as an estate in entirety, and to that extent he will he decreed now to hold the title in trust.

The judgment is reversed and the cause remanded to the circuit court of Cass-county with directions to enter a judgment in plaintiff’s favor decreeing that the title to an undivided forty-three one-hundredths of the Cass county land in question is vested in the plaintiff and defendant as husband and wife as an estate in entirety and the title to the remaining undivided portion of the land is vested in the defendant, and that the plaintiff recover of defendant the costs in the circuit- court. The judgment so entered will relate hack to the date of the filing of this suit in the circuit court and will be an adjudication of the rights of the parties at that date; whatever may have occurred since then to affect the rights of either party or both is not res judicata by the judgment in this case.

All concur, except Graves, J., not sitting.


author: GANTT, J.

text:
    PERKINS LAND & LUMBER COMPANY v. WILLIAM IRVIN, Appellant.
    Division Two,
    December 22, 1906.
    1. LIMITATION: Color of Title: Unsealed Deed: Grantor’s Title. A deed acknowledged before a justice of the peace of another county and not sealed in accordance with the law in force at the time it was made, and not being otherwise sufficient to convey the title because the grantor had no title, is nevertheless a color of title, and if relying thereon defendant went into ■ possession, claiming to be the owner, and in good faith occupied the land claiming title thereto by- virtue of his color of title, continuous adverse possession for ten years is sufficient to defeat plaintiffs perfect legal title.

      2. -: -: Claiming Thereunder: Question of Fact. Whether or not defendant occupied the land in good faith claiming title thereto under his color of title, is a question of fact, to be determined by the trial court sitting as a jury, from the evidence in the case.
    3. -: -: -: -: The Evidence. Where there is evidence tending to show that defendant did not rely on his color of title as being the legal title, but claimed that the title was in the county and that he had as good a title as any one, and that while he claimed to own the land plaintiff went on to ’it and through his employees cut the timber thereon and defendant brought no action to enjoin him and none for damages for trespass, there was substantial evidence to support the court’s finding that defendant was not in good faith claiming to own the land by virtue of his color of title.
    Appeal from Stoddard Circuit Court. — No». J. L. Fort, Judge.
    Appirmed.

      D. B. Cox, George Houck and C. L. Keaton for appellant.
    (1) If the evidence is that defendant has a perfect title by limitation, under color of title, the judgment is against the evidence presented at the trial. Gage v. Cantwell, 191 Mo. 705; Graton v. Land & Lumber Company, 189 Mo. 322; Marvin v. Elliott, 99 Mo. 622'; Creech v. Childers, 156 Mo. 343. (2) The quitclaim deed is color of title.- Hickman v. Link, 97 Mo. 488; Hamilton v. Boggess, 63 Mo. 244; Heinemann v. Bennett, 144 Mo. 117. (3) And possession under color of title of part of the land extends to all the land described in the instrument creating color of title, and when it continues for more than ten years, it vests the absolute and perfect title in the possessor under color of title. R. S. 1899, secs. 4262, 4266; Franklin v. Cunningham, 187 Mo. 184; Allen v. Mansfield, 108 Mo. 348; Harbison v. School District No.' 1, 89 Mo. 186; Stevens v. Martin, 168'Mo. 410; Watts v. Donnell, 80 Mo. 196; Allen v. Mansfield, 82 Mo. 693; Scannell v. Am. Soda Fountain Co., 161 Mo. 606; Nelson v. Brodhack, 44 Mo. 596.

      N. A. Mosley for respondent.
    Those claiming adversely under color of title must enter and occupy the land in good faith, claiming the whole tract, relying on the color of title as being the legal one. Gaines v. Saunders, 87 Mo. 557. And whether such adverse claimant relies in good faith on his color of title as being the legal one, is a question of fact for the jury. Gaines v. Saunders, supra. In this case the testimony of appellant himself and of witnesses offered by respondent tends to show that appellant did not rely on his color of title as being the legal title but insisted that the title was in Stoddard county, and that he had as good a title as any one else.
   GANTT, J.

This action was instituted January 2, 1903, in the circuit court of Stoddard county. The petition contains two counts; one to quiet title to the north half of the southeast quarter of section 17, township 23, range 12, in Stoddard county, under the provisions of section 650, Revised Statutes 1899. The other count is in the usual form of ejectment for the same land. In his answer the defendant disclaimed any title or right to the northeast of the southeast of said section, but asserted title to the northwest of the southeast of said section under color of title with open, notorious, continuous, hostile and exclusive adverse possession for more than ten years. The action was tried to the court without a jury. The plaintiff introduced patents from the United States Government and the State of Missouri to the eighty acres to one Crumb and then deduced title by regular mesne conveyance to the plaintiff. The defendant to sustain the issues on his part offered in evidence a quitclaim deed from James Higginbotham, acknowledged before J ames Stewart, a justice of the peace within and for New Madrid county, Missouri, of date February 10, 1882, and recorded in Stoddard county, the 11th of December, 1893. He then offered in evidence facts showing that he had been • in possession of the northwest quarter of the southeast quarter of section 17, since 1882, and had made improvements on the land. At the time he bought it there 'were four or five acres cleared and a little cabin on it. On cross-examination, he was ashed: “When you bought the land from Higginbotham, he never claimed to own it, did he?” Ans. .“I did not know anything about that, he sold me the land.” Asked, “If he ever claimed to anybody that he owned the title in the land ? ” he answered, ‘ ‘ I claim to own the best title there was. ’ ’ Pie was asked if he had not all the time contended that the land belonged to the county, and he answered that he would not say that it belonged to the county; he said he. had four tax receipts and probably five. Says he did not tell Perkins.he did not claim to own the land, and did not tell him it belonged to the county. Did. not tell Perkins that he wanted the land, that he wanted to'go over and buy the land from the county. Does not know what he said about that; that he did say that if he did not own the title, he wanted the right title. He stated that he went to Bloomfield when Mr. Wammack was agent for the county to arrange to enter the land in case the county won it, and he said to' Wammack if he did not have the right title that he wanted it, but did not tell Wammack .that he did not' own the land; stated that he was acquainted with Mr. Reed and had a talk with him about the title of the land and claimed.that he had as good a title as any one else had to it; he would not say that he had not told Mr. Reed that the county had a, title, would not say positive, he might have said il, but he always claimed that he had as good a title as any one .else;.that he had cleared about ten acres;..that Mr. Perkins cut timher off of tbe land in 1893,1894 and 1895; that Perkins forced bimself onto tbe land, went into the lot and cnt out the timber; that he did not bring any action against Perkins for so doing. Perkins did not cnt all the timber off of the land. He regarded Perkins as a trespasser.

John Carter testified to defendant’s possession of the land for nineteen years, and his exercise of ownership over it. He testified to Perkins ’ men coming onto the land and cutting off the timber; that he notified Perkins to stay off and tried to keep him off of the land. On cross-examination this witness testified that to the best of his recollection there were twenty-five or thirty acres cleared; that the cleared land is along the center of the eighty acres and is on both forties. That defendant never told him he was going to enter it from the county; he claimed to own it. He, witness, did not object to Perkins’ hands cutting outside of the pasture.

A. B. Perkins, for the plaintiff, testified that defendant never made any claim to witness about the title whatever; he did claim that he bought out the interest of a party out there. He made no other claim to the land at all whatever. He always claimed that the county owned it. That defendant often talked to him about the Stone-Perkins case, and said he wished I would succeed, that he thought the land belonged to the county; he always claimed that'the county owned the land; that defendant never notified him not to cut the timber off of the land, that he, Perkins, quit cutting the timber about 1895, after cutting off all of the timber he wanted; that his hands did go into the lot to cut the timber and Irvin made no objection to him and that he knew nothing about objection being made by defendant to his men about cutting the timber; that he made no objection to Perkins-himself at all. He testified ¡further that he did not know that Irwin had any deed to the land until a short time before the trial. There was talk among his men that Irvin was objecting to his cutting the timber in the horse pasture.

M. O. Reed, county surveyor, testified that he surveyed the land for Perkins. And says that the clearing is on the south half of the southeast quarter. Do not think there is any part of the northwest of the southeast cleared; that defendant talked to him and he gathered from what he said that the land would all come back to the county some time.

At the close of the evidence, the defendant asked the court to declare the law, and if the court found and believed from the evidence that the defendant had been in the open, notorious, continuous and adverse possession under claim and color of title to the land in controversy, for more than ten years prior to the commencement of this action, claiming said premises as his own, and exercising the usual acts of ownership over the same during said period, then the court would find the absolute fee simple title as vested in the defendant, and the court would find for the defendant, and the court gave said declaration of law. The court then found for the plaintiff and rendered judgment for plaintiff against the defendant. In due time the defendant filed his motion for new trial on the ground that the finding was against the evidence and the weight of the evidence, and the court erred in giving defendant’s declaration of Iqw and then finding against it. And the court erred in finding that the possession of the defendant under color of title did not set the Statute of Limitations in-motion and did not bar the plaintiff.

I. The sole question presented on this appeal is whether the defendant acquired title to the land in question by adverse possession under color of title. It is conceded that the plaintiff has a perfect legal title to the forty acres, to-wit: the northwest quarter of the southeast quarter of section 17, township 23, range 12, unless the defendant has acquired title thereto by his possession under color of title. "While the quit-claim deed from Higginbotham may be insufficient to convey the title, because it was not sealed, as required by the law at the time of the execution of this instrument, and because Higginbotham was not shown to have ever had any title to the land, and because the acknowledgment was taken by a justice of the peace of New Madrid county to lands lying in Stoddard county, still we think it was sufficient as a color of title and the sole question is as to whether defendant was occupying the land in good faith and claiming title thereto by virtue of his color of title. [Gaines v. Saunders, 87 Mo. 557.] And this was a question of fact, for the court, sitting as a jury, under the evidence in the case.

There was evidence tending to show that the defendant did not rely on his color of title as being legal title, but that he claimed that the title was in Stoddard county and he only had as good a title as any one else. There was also evidence tending to- show that, while defendant was claiming that he owned the land, plaintiff- went on the land, and had his employees cut the timber off of it, and that defendant took no action to enjoin him from so doing, nor brought any action against him for damages for trespassing. Taking the whole evidence together, we think it was a question of fact for the court, sitting as a .jury, to determine whether the defendant was, in good faith, claiming title to the land by virtue of his quit-claim deed from Higginbotham. [Hunnewell v. Burchett, 152 Mo. 611; Hunnewell v. Adams, 153 Mo. 440.]

The trial court having determined that issue against him under a proper declaration of law, this court will not interfere with that finding, and the judgment of the circuit court must be and is affirmed.

Burgess, P. J., and Fox, J., concur.