Dyer v. Wittler. of the husband in the fee-simple estates of the wife. The material and decisive question for determination in this case therefore is to whom, by the common law as it stood at that date, did the right of action or cause of entry accrue, by reason of the adverse possession or disseisin, under which the defendants claim title. The solution of that question depends upon another, to-wit, who under the law and the facts had, or was entitled to the seisin and possession of the premises when the adverse possession first commenced. The Court of Appeals, in their opinion affirming the ruling and judgment of the Circuit Court (14 Mo. App. 52), held that the case was governed by that of Valle v. Obenhouse, 62 Mo. 81, as modified and explained by Dyer v. Brannock, 66 Mo. 391, 442; s. c., 27 Am. Rep. 359, adjudicating upon this very title. That case (Valle v. Obenhouse, supra) held that: "The husband is understood to be jointly seised of his wife's estate, and during the existence of coverture he is not tenant by the curtesy, but only seised by right of his wife, and if there be a disseisin it is of the joint estate, and they must jointly bring an action to recover the possession. Under this view of the title of husband and wife in the lands of the wife, the statute of limitations will begin to run from the date of the disseisin against both." If that ruling be accepted as the present state of the law in this State on this question, the plaintiffs are unquestionably barred. It has been something over ten years since that decision was rendered, and it has justly been esteemed an important one, and if during all that time its correctness has not been challenged, it should not now be lightly called in question. It becomes important therefore to consider, not only the case itself, but also how far, if at all, and to what extent it has since been questioned, modified or overruled. In the first place it may be remarked that the opinion in that case was that of a majority of the court, one of its members being absent and another delivering a dissenting opinion to the effect: "That the wife had no right of action or entry after the disseisin until the death of the husband, and that her grantee, the plaintiff, in that event was not barred by the statute of limitations." It may also be added that one member of the majority placed his concurrence in that opinion on grounds somewhat different from those stated in the opinion proper. It may be further remarked that the case, when decided, was regarded by the court as a new one in Dyer v. Wittler. regard to the proper construction of our statute of limitations, and for that reason, as well as its own merits, was carefully considered by the several judges in their respective opinions. In that of the court proper, as well as that of the dissenting judge, the two "opposing theories" are elaborately discussed, and numerous authorities cited in support of the respective positions, so that but little, if any thing, remains to be said on the question itself beyond a few remarks, the citation perhaps of some additional authorities, and a consideration of subsequent decisions of this court, in which the question itself, or the legal propositions on which the question at issue rests, are stated and recognized with more or less distinctness, or else more elaborately considered, and in one case, at least, where the Valle v. Obenhouse case is directly questioned, and its construction of the statute of limitations, in this behalf, expressly challenged. The Valle v. Obenhouse case itself, in speaking of the effect of the tenancy by the curtesy of the husband upon the wife's seisin and possession of her fee-simple estate, concedes that "it is clear that if a wife has a mere reversion the statute does not bar her until her reversion vests by the death of her husband, since in such cases her right of action only commences on the termination of the particular estate." The court then remarks: "Where a particular estate has been created by the husband, whether with or without the consent of the wife, the wife, or her heirs, cannot sue until its determination." The error in this is that the creation of the particular estate is the act of the marital law, and not of the husband's deed; the latter simply transfers what the former creates. Under the facts and authorities, the seisin and possession of the wife by operation of the marital law is transferred to the husband during his life, consequently no right of action accrues to her or her heirs until his death, and in such case the wife is not within the purview of either the ten or twenty-four year provisions of section 3222, since she is not, in the language of that section, entitled to commence an action or make an entry. In such case, no cause of action whatever accrues to the wife, until the husband's death. The question of the right of action depends upon the fact and right of seisin or possession. Whoever is entitled, under the law, to the possession, “ex necessitate," is entitled to the right of action. was well said in the dissenting opinion in the Valle v. Obenhause case, supra, the statute of limitations (section 3222) does not underVOL. LVIII — 12 As Dyer v. Wittler. take to determine who is or who is not entitled to commence an action or make an entry, but simply provides within what period such person so entitled shall commence their action or make their entry. The question is determinable solely by the common law applicable to the facts of the case. It may be conceded also, as claimed in the concurring opinion in that case, that the statute was designed to operate with uniformity and exclude all alike, whether infants, feme coverts, insane persons, etc., after the lapse of twenty-four years from the date when the right or title contemplated shall have first accrued. "If (as elsewhere said, in said concurring opinion, in speaking of the right of action) it has descended or accrued, then by the express proviso of the statute, twenty-four years, even in the case of a married woman, makes a complete bar." But the question remains, has the right in question, under the law and the fact, so accrued? If it has, it is unquestionably barred. But otherwise, not. It is true that infants, insane persons, prisoners, and married women, are all grouped together in section 3222, and are all to be treated alike, as barred by its provisions whenever they are alike entitled to sue, but only when so entitled. There is a marked difference in the effect, which the several disabilities therein mentioned have upon the subjects thereof, at least so far as the married woman is concerned. It must be remembered that as to infants, insane persons and prisoners, their several disabilities have no effect to displace or suspend their seisin or possession of their real estate. Not so in the case of a married woman. Her disability of coverture, by its own force, under the marital law, operates to transfer her seisin and possession of her fee-simple estate to her husband, and with it the consequent right of action. This important difference, so far as a right of action incident to a disseisin is concerned, seems to have been overlooked, both in the opinion of the court and that of the concurring opinion. But passing from that decision, the next case in which this question came before the court is that of Dyer v. Brannock, 66 Mo. 420-423, and especially 422; s. c., 27 Am. Rep. 359, which appears to be an adjudication upon this very title involved in this case. 14 Mo. App. 54; 2 Mo. App. 432. The opinion in this case, as I understand it, seriously impairs, if it does not virtually overrule that in Valle v. Obenhause. While it in terms evidently recognizes the ruling in that case, yet it states with much distinctness and clear Dyer v. Wittler. ness, and with apparent approval, the general leading legal propositions announced as the basis of the dissenting opinion in that case. It appears to me difficult, if not impossible, to reconcile the two cases. It is there stated that "it is generally understood that the statute of limitations does not run against any one who has no right of possession." It is there also said, speaking of the husband, that "so long as he lived, his life tenancy, whether outstanding in a third person or remaining in him, effectually prevents any action or entry by his heirs." It is there further said, "this would be the result, whether the husband, during the life of the wife, had transferred his estate to some third person by deed, or it has passed to an adverse possessor." It is also there said in speaking of the instruction of the trial court in that case, that: "The objection to this instruction is, that the tenancy by the curtesy of A. W. Dyer, consummate on the death of his wife, is entirely overlooked. Mrs. Dyer died in 1869, before the bar of twenty-four years had elapsed. Her estate, not having been barred by the statute of limitations, on her death passed to her heirs. Her heirs however could not sue on her death, because her husband survived her, and they had no right of entry or action during his life estate. If the statute of limitations is construed to run against them from the death of the mother, it operated against parties who had no right of action, and who would have been trespassers had they undertaken to enter. Indeed, upon this construction of our statute, had the husband lived three years or more after the death of the wife, the title of the heirs would be wholly destroyed, since they cannot sue during the continuance of the particular estate, and before its determination, the three years from the death of the mother have gone by." It is also stated in said opinion, that: "The person barred by the statute is one whose right of entry has accrued, and who neglects to sue during the three years allowed after his right of action accrues.' The opinion then winds up with this remark: "Whether in the event the suit had not been brought within three years after the death of the husband, the heirs would have been barred by an adverse possession of ten or thirteen years, as was held by the Court of Appeals, is of no practical importance in the case. It is unnecessary to give an opinion on this question until such a casc arises.” And just that identical case has arisen on this record and upon the same title, and we are now called on to decide what was there waived. Dyer v. Wittler. In the case of Kanaga v. Railroad, 76 Mo. 214, the court states the common-law rights of the husband in the wife's fee-simplelands, in the following pointed language: "The husband, during the marriage, has the exclusive right to the possession of her real estate not held to her sole and separate use, and is the only proper party plaintiff in a suit to recover possession thereof." If this be true, the ruling in Valle v. Obenhause, supra, cannot be correct. In the still later case of Gray v. Dryden, 70 Mo. 106, MARTIN, C., uses this equally pointed language: "This was an action for an injury to the actual possession of real estate. The possession of the wife was the possession of the husband. I do not well see how their possession can be joint or common under our law. Certainly this is not so in respect to her general real estate, which is placed by the law in the exclusive possession of her husband. Where he is in possession of it, the fact that she is on it with him gives her no possession any more than to any other member of his family whose actions are subject to his control. She is not in joint possession with him because she is there, and she is not a necessary party to any suit to vindicate the possession against trespassers and wrong-doers." In a still later case, that of Mueller v. Kaessman, 84 Mo. 318, 324, 330, it was held that "in this State a wife is not a necessary party to an action of ejectment by the husband for her lands." The leading question however in that case was as to how far and to what extent the common-law rights of the husband in the real estate of the wife was changed, modified or abolished by section 3295, Revised Statutes, 1879, first enacted in 1863. In the discussion of that question the common-law rights of the husband, anterior to that statute, are stated at page 324 in the following language: "What were the rights of the husband at common law in the land of the wife? These: He was jointly seised with her of that land; had, jure uxoris, the exclusive right to the possession of that land, its rents and profits; could make a tenant to the præcipe; could lease or mortgage by his own deed alone, or by his deed without joining his wife with him; convey his marital interest in the land, which conveyance would be good during their joint lives, and his freehold estate might be seised and sold on execution." At page 330, this further language is used: "At common law it was necessary for the husband to join the wife with him in an action to recover the real estate of the wife. * * And if the common-law rule has not been abrogated by our Code, it |