Dyer v. Wittler. would seem that she must be joined. It has however been otherwise decided in this State, the husband being regarded as the only necessary party plaintiff in actions for the recovery of her lands.” Citing Gray v. Dryden, 79 Mo. 106; Cooper v. Ord, 60 Mo. 420, and cases cited. This case, also says the Kanaga case, 76 Mo. 214, "in so far as it conflicts with the views herein expressed, should be no longer adhered to." But this, as I understand the case, does not affect or overrule any thing therein said as to the common-law rights of husband and wife, anterior to the enactment of the statute (section 3295) limiting such rights, but only his rights to his wife's land, since the passage of the statute under construction. In a still later case, that of Harris v. Ross, 96 Mo. 89, this language is used: “It is of the essence of the statute of limitations not to run against a party until a right of action has accrued to such party. The statute, strictly speaking, it must be remembered, whether expressly or by analogy, deals only with the right of action, and when there is no such right there can be no bar. In such case there is nothing for the statute to operate upon or to set the same in motion. * Section 3222 of the statute of limitations, by its terms, deals only with persons entitled to commence an action or make an entry, and section 3224, of same act, has no application to the heir of a person not thus entitled." * In the late case of Campbell v. Laclede Gas Co., 84 Mo. 352, at pages 376-7, the commissioner, after showing that the plaintiffs were clearly barred by the ten-year statute of limitations, adds this further paragraph: "Under the rule approved in Valle v. Obenhause, 62 Mo. 81, the plaintiffs would be barred by the absolute limitation of twenty-four years, which runs through all these disabilities, excepting only the suspension of the right to sue, by reason of an existing tenancy by curtesy." This at least is a recognition by the commissioner who wrote that opinion of the rule laid down in Valle v. Obenhause. The authority of that case, so far as this one is concerned, however, may well be questioned for two reasons: 1. As it appears that the plaintiffs were clearly barred by the tenyear law, it would seem that there was nothing left for the twentyfour year proviso to operate on, and its potency was not at all needed, as it only operates when the ten-year law fails to destroy plaintiff's title. 2. As it appears that the disability under which the parties labored, through whom the plaintiffs claim, at the time Dyer v. Wittler. the adverse possession was first taken, was that of infancy, and not coverture, as in the case at bar, their subsequent disability of coverture would afford no protection, as cumulative disabilities are not allowed. But be this as it may, the commissioner evidently recognized the authority of that case. To this opinion of the commissioner there is a concurring opinion of a member of the court, concurred in by three others of the judges, to the effect that "while he concurred in holding the plaintiffs to be barred, it was not upon the authority of that case; and he desired to add to what he had heretofore said in his dissenting opinion (62 Mo. 90), that a statute which deprives a married woman of her property for failure to sue for it in twenty-four years, when during all that time she had no right to the possession, and could not therefore maintain an action for such possession, was in his opinion plainly unconstitutional. The construction given to the statute by a majority of the court in that case (62 Mo.) could not therefore be the correct one.' This concurring opinion is at least a declaration to the effect that the rule laid down in that case is not the law. It is however proper to say of this concurring opinion, as was said of the opinion of the commissioner, that its authority also may be equally questioned for the same reasons. The last case in which reference is made to the ruling in Valle v. Obenhause, 62 Mo. 81, is that of Johns v. Fenton, 88 Mo. 64, which was a suit by the wife and her second husband for the admeasurement of dower in the real estate of her first husband. The doctrine of that case, as I understand it, in treating of the scope and operation of the statute of limitations, is to the effect that "The right limited is a present existing right of action or of entry; that the wife's right to dower is not of that sort, and for that reason not barred by the statute, and that it is obvious that cases like Valle v. Obenhause, 62 Mo. 81, can have no application to such a case." This manifestly is the correct doctrine. The court there speaking of the assignment of dower, holds that the statute begins to run from the period of its assignment, and if assigned before her second marriage, her right of action would be barred in ten years. If after that marriage, then by the period of twentyfour years, citing Valle v. Obenhause. Conceding without admitting, that that might be true; yet it is obvious that such a case is not in point, and would be no authority in support of the ruling in Valle v. Obenhause, for the reason, if no other, that the wife's real Dyer v. Wittler. estate in the case supposed is not an estate of inheritance to which the husband's tenancy by the curtesy could attach or interpose, as in that case and the one at bar. This case therefore has no application, and is not an authority in the case at bar. The law on the question at issue is well stated in strong and pointed language in Sedgwick and Wait on Trial of Title to Land, at page 117 and 118, section 219, where it is said: "A tenant by the curtesy initiate may sue alone for the possession of his wife's land, and for damages for withholding it. * At common law the husband's interest in the estates of which the wife was possessed at the time of the marriage was a freehold, he alone having the right of entry and the present right of exclusive enjoyment. The wife could not recover the lands from a stranger, even though her husband was joined as defendant, and disclaimed title, and admitted the wife's right to possession." To the same effect also is the case of Clark v. Clark, 20 Ohio St. 128, where it is said that during coverture the right of possession of the wife's fee-simple lands is in the husband, and the wife cannot maintain an action to recover the same from a stranger. Wilson v. Arentz, 70 N. C. 670, is also a case in point. In that State it seems they have a statute substantially like section 3895, Revised Statutes 1879, and it was there held that, "A tenant by the curtesy initiate has a right to sue alone for the possession of his wife's land, and for damages for the detention of it, * and the fact that the act of 1848 (Battle's Rev., ch. 69, § 33) deprives him of the power to lease the land, without the consent of his wife, will not prevent his recovery of the land by an action, under C. C. P. without joining his wife as a party." To the same effect are the cases of Bledsoe v. Sims, 53 Mo. 305; and Kanaga v. Railroad, 76 Mo. 207; Cooper v. Ord, 60 Mo. 421, 430. In the North Carolina case of Wilson v. Arentz, supra, it is said that "For an injury done to the inheritance his wife must have joined in the suit, for a trespass to the possession he could sue alone." This, I apprehead, is the true criterion for determining when the wife is, or not, a necessary or proper party to a suit, affecting the wife's fee-simple lands. The objection, that the construction here given section 3222 of the statute of limitations, renders the same nugatory and senseless, so far as a married woman is concerned, is not, we think, well taken. A married woman during coverture may have a right of ་ Dyer v. Wittler. action for an injury done to the inheritance or integrity of her feesimple lands, or to the possession of her sole and separate estate in lands to which the husband's marital rights are excluded, just as any other person, and these rights of actions of hers, and others of a like character, are just as much within the operation of that section as any other of the parties therein named. Whenever and wherever she has a right of action during coverture, she is as fully within the operation of that section, twenty-four years and all, as any other party therein mentioned, and equally barred whenever they are barred. This objection therefore is without force or merit, and is fully met and refuted in the dissenting opinion of Judge HOUGH in the case of Valle v. Obenhause, 62 Mo. 81, and. the argument need not be here re-stated. The contention and point in judgment in this case is that the wife, during coverture by reason of the husband's curtesy initiate, had no right of action, and that after her death her heir had none by reason of the husband's curtesy consummate, prior to his death, and for these reasons the plaintiffs are not barred by the statute of limitations. Adopting the views expressed in the dissenting opinion of Judge HOUGH in the case of Valle v. Obenhause, 62 Mo. 31, and of the authorities there cited, as well as in consideration of the views expressed in the subsequent decisions of this court hereinbefore mentioned, and the additional comments, reasons and authorities herein given and cited, we hold that the ruling of the court in that case is not the correct one, and its authority in that particular is hereby overruled. This leads to the conclusion, that upon the facts of this case, the plaintiffs herein are not barred of their right of action, and for these reasons the judgment of the St. Louis Court of Appeals is reversed, and the cause remanded for further proceeding in conformity to the views here expressed. All concur, except SHERWOOD, J., who dissents. Clifton v. Howard. CLIFTON V. HOWARD. (89 Mo. 192.) Partnership-participation in profit and loss. A mere participation in profit and loss does not necessarily constitute a partnership, as to antecedent creditors, but the parties must have an interest also in the property which is the subject of the business association. (See note, p. 99.) EPLEVIN. The opinion states the case. REPLE A. W. Anthony and Cosgrove, Johnston & Pigott, for plaintiff ir error. R. F. Walker and Draffen & Williams, for defendant in error. HENRY, C. J. This is an action of replevin to recover of defendant thirty-two head of fat cattle taken by him as the property of James K. Estis on an execution against Estis in favor of B. S. Walker. The defense was that plaintiff in this case and Estis had fraudulently conspired to cheat and defraud the creditors of Estis, who was in fact the owner of the property, and that Clifton's claim was made in furtherance of said fraudulent scheme. The evidence tended to prove that plaintiffs, Clifton, and Estis, both residents of Morgan county, had for years been purchasing and shipping cattle to St. Louis, each on his account and to different commission houses, Clifton to Irons & Cassidy, and Estis to Geo. R. Taylor & Company. That neither was using his own capital. That they severally had an agreement with their respective commission merchants, by which he was to purchase cattle for his commission merchant and when the cattle were delivered in the stock yards at Versailles and billed for shipment in the cars, he could draw a sight draft on his commission merchant for the amount paid for the cattle, he having previously paid for them by his individual checks on banks at Versailles. That when the cattle in controversy were levied upon in the stock yards at Versailles they had been billed by Clifton to Irons & Cassidy, and Clifton had drawn a sight draft on them in favor of a bank at Versailles for the amount necessary to cover his checks on said bank to pay for VOL. LVIII-13 |