HAYES t1. H'INTIRE.
et ale v.
(O£rcuf.t Oourt; W. D. Missouri, Bt. Joseph DWl.Bion. April, 18M.)
ADVlIIRSE POSSESSION-LEGAL TITLE IN TRUSTEE-RUNNING OF STATUTE.
Where the husband, to give his wife the legal title to land, conveys to his son, who at the same time conveys to the wife, the son will be deemed to have the legal title, with power to sue, long enough to start the running of the statute of limitatioDs in favor of one who has been knowingly allowed, since before the date of the deeds, to take and keep possession, and make valuable improvements, under the belief that he had a perfect title.
In Equity. George W. McOro/ry, for complainants. John S. Crosby, for defenda,nts.
BREWER, Justice. This case stands on demurrer to the bill. The facts as alleged are these: In August, 1869, Samuel S. Hayes and Lizzie J. Hayes were husband and wife, and he the owner in fee-simple of the real estate sued for. For a good and valuable consideration he then deeded the land to her·. Afterwards, and on the 31st day of July, 1877, for the purpose of perfecting the legal title in her, and for no other purpose, he quitclaimed to Harold V. Hayes, his son, and he at the same time quitclaimed to Lizzie J. Hayes, his mother. In 1875 certain parties forged a deed from Samuel S. Hayes and wife to Charles a.Mclntire, one of the defendants, and he afterwards conveyed a part of the land to his co-defendant. No participation in the forgery or fraud is charged upon defendants. At the time of the receipt of this forged deed defendants entered into possession, and they have since made valuable improvements on the property. An action at law could not be maintained by reason of the statute of limitations, defendants' adverse possession having continued more than 10 years. To escape the effect of this statutory bar to a legal action, complainants bring this suit in equity. In addition to the facts above stated, it appears that on August 7, 1877, Mrs. Hayes died, leaving surviving her husbaud and these complainants, her children and only heirs; that her husband died on the 28th day of Jannary, 1880. These, I believe, are all the 1acts bearing upon the question. Conceding, as I said, that the defendants have a perfect defense to an action at law for the recovery of possession, complainants insist that the deed from Mr. Hayes to his wife in 1869, though void at law, yet, having been for a good and valuable consideration, was valid in equity, and therefore the equitable title vested in Mrs. Hayes; that complainants inherit that equitable title; that, by reason of the life-estate which vested in Mr. Hayes upon the death of his wife, they could not maintain any action until his death in 1880, and hence their right of action to recover the equitable title which they had from their motheris not barred until 10 years from that date; that if, by the needs of 1877 from father to son and from son to mother, the legal title also passed to her, there would be no merger, because it was not for her v.45F.no.8-34
interest that there slt'ould be a merger, and, there being no evidence of an express intent to wW not and that, even if merger be presumed, by the doctrme of relation, the legal title would be carriedplloc;k;to theinceptiop.of thl;' equit8,pl,e, ,and then, the legal title being considered in Mrs. Hayes from that date, under the law of Missouri, the statute of limitation would not Start until the death of thehllsband in 1880, On the other d,eferidants say that the legal title remained in )fro Hayes phtil two years after their possession he held the leg?tltitJ,e in trust for his wife, and could have maintained an action for the recovery of ,possession; that the general rule is that, when the statute of limitation commences to run, no <Jhange of title stops its running; that where it runs against'atrustee; it runs also against the cestui que trU8tjl&iIld thateve'l1 it bel'true that this last doctrine has this exception, that where the cestui· q'II4trust is entitled to an interest in remainder only, the statutory bar does not begin to run until his interest falls:into, the..rightof.-possession of equita.ble interest; and that Mrs., Hayes' was thus' limited:while the title was in herhusband,yet it waslilot thus limi.ted when.' the legal title passed from the husband to the son,:.and that'lvhilehe held the legal title there was cestui ,que trust; that he eould have brought 31) .action for the reooveJ;Y of pOSljessiQ.l1,and did not, and the statute of :limitations, if not before, then, iat least, commenced to l1UD; that the1'6 was, iniacia merger, because, altbollgh there be no evidence of, any express intent to merge, there was.a.t the time no inter., est in preserving the two estates separate; thesnppo.sed interest in keep. ing the two estates apart tSprillging only fi'Qm the fact that the lapse of< tiIl)ehasraised,a,statutory bar as against the legal estate; and, also that the doctrine of relation has,no appljcatioll, for the reason that it cannot be invoked only to defeat. a bar which the statutes:of have interposed in behalf of theoccupll.I1t,of land· . I do not care to disc.uss these :VllriollS questiollfl, so,ably. and jngeniously argued by llounselon either side. I think thephlOtal question is this: 'Ina. case in which the defendant is guilty of no, :moral wrong, ba.s taken no part in any !raudor deceit, will equity seek to deprive hirnof the;protootion which the statute'bfthe state castll.l'ound his possession, or will it recoghiii:e the wisdom oftbat legal protection, and. seek to uphold it. Therewas a time when statlltes' of limitation were looked upon , disfavor, and when the courts delighted; to seize upon any prete:x;t for avoiding. their force). but that tilne"hM pMsed, RJ;ld nOw it is generally'recognized that they are statutes of repose, ando,ughtto. be upheld. A ,wise public policy demandstheit recognition 'and forbids their illustrates. Defendants have beellfpr a dozen years evasion. This in open and notoriollS possession of thll':JlUid have made many and va.lllable iinptovements. and increasing thegenel'll.l prosperity,wMle cOll1plainants'ancestors, :though living iuan adjOining. state" OOQkl 'nO notice of their property ,and left the defendants in undisturbedJ)QaseBsion under the belief that their title was perfect. Under those circumstances, the policy
,T.A YLQJt t1.
statutes of limitation demandsthnt courts, of law and equity alike should , uphold and enforce them if possible. Now, passing all other,questions, in 1877 there was a time whenthe legal title was in the son an,d the eqnitable in the mother. It is true that, as tha:ttransaction was a deed from fatherto son, and son to mother, the title, in case equity demands and only for tbe purpose of it,' the son would be regarded as a, mere conduit, whom the title passed, and not as a party in whom the title vested.' On the other hand, in cases where equity demands it, he will be regarded as for the moment holding the legal title, and casting upon the property all the imposes. He eould have commenced an burdens which the legal action for possession, and did not. He ,held the full legal title, his mother the full equitable title, and the doctrine that whenever the trustee is barred the cestui que trust is also barred, has full application from the relation of husband without ftoyof the limitations and wife as between trustee and the cestui que trlult Fortnese reasons, in equity as well as at law, I think the defendants Are entitled to the protection of the statute of limitations, and the demurrer to the bill will be sustaiutld.
(OIreuUOourt, E. D. Tennes8ee, N. D. March 17,1891.) L
:,Tbellckllowledgment is the separate, act of each and every party exeonUng,tbe instrument, lind tbe clerk of a federlll court is entitled to II distinct fee, liS prescribed by Rev. St. S 8:l8, for each defendant lind surety WhOSb acknowledgments he takes to II bail-hondo ' " · ' copy of an order. dlrectingth ll marshal. under Rev. St, S 855, to pay 'Witness and Jury feell, or of m!tthll.u8 wrhli issued out of court, should be authenticated by seal and certificate, for which the clerk must be allowed proper fees.' "Discbatge 1l1ckets, .. issued out of the district attorney'softlQa, oftlcilllly notifying tbe clerk that ce,rtain government witnesses are no lon,ger reqUired, are properly, filed by the clerk liS "other papers," within Rev. St. S828, and he la entitled to le(,t the speoified fee therefor." '. " , Affidavits of.service by government witnesses are properly administered by the clerk, and he Is entitled to charge therefor.
PAP\ilR8 IN CRIMINALCASE8. . '
SAME-AuTBBNTIOATION 011' OnllBl\s.T SEAl,
BAME-"Fo'R FILING ANY OTHER PAPER."
.. BAJI"B-AI'I'IDAVITS 01' SERVIOB BY WITNESSES.
I. SAMB-oRDEJiTO BRiNG PRISONER TO COURT: " "Ordersmede by tbe court:upOn themal'shal to brinf prisonera to court for trial whp 1/.ave cOlIllJdtted by c\lmmi8llioners to ,jails 0 other counties are not wit-hin the provision of Rei ;St. 1,1030, tbat!10 writ Is to br.lng intI? court any prisoner Ol'perlloli inoutltody;' but tnat shall be:done' upon order; and, no tee shall b& charged, tpllfflfQr br the or JlIar\lhal, ,which rela.tes solely to vrlso,ners and
Vnder Rev.'St. U. S. S1014, prOViding forthellxamination of'peraolls aoouBed of offeuses against the Un ited States before a commissioner of the circuit court, or other magistrate of any state, agreeably to the usual mode of process In such state, and that copiElll of the procesll shall be returned into the, /?lerk's office, togethl;lr wita recognizances of witnesses for "their appearance, the clerk is entitled to a iiliz\g fee for ,each separate paper, and not toone fee onlf In each C 8 ! 1 e . .