Armor v. Frey

161 S.W. 829, 253 Mo. 447, 1913 Mo. LEXIS 272

• Court: Supreme Court of Missouri
• Decided: December 9, 1913
• Status: Published

Opinion

ROT, C.

This suit was begun in- Newton county, February 8, 1904. The original petition was in two counts, one to quiet title, and the other in ejectment. There was a finding and judgment for the defendant, and on appeal the judgment was reversed and the cause remanded. [See Armor v. Prey, 226 Mo. 646.] A change of venue followed to Barton county. At the April term, 1912, the petition was amended so as to include a count in partition in addition to the former counts. The answer tendered new issues which were not involved in the former suit. We will not set out the pleadings, and will merely state they were broad enough to cover all the facts shown in this statement.

On the second trial the court again found against the plaintiffs on all the issues and entered judgment accordingly. The plaintiffs have appealed.

In 1857, Charles A. Davis and Greene Moore, both residents of Greene county, Georgia, were extensively engaged in buying wild land in Missouri, for the purpose of resale. To facilitate their business, they entered into a contract with Johnson & Coleman of St. Louis, Missouri, in writing, in which Johnson & Coleman agreed to furnish their services in locating and entering and purchasing land's in Missouri, and in looking after them generally. Said contract contained the following:

“Said lands so entered shall be held for the period of five years, unless the parties agree to sell sooner, and said second parties, whenever called on, shall aid in the sale without charge.

“On the sale of.said lands, the second parties, as compensations for the locations, entries and pur-chases, the assessment and payment of taxes,' for general oversight and for assistance in making sales, shall receive the following percentage on the sales, to be paid, out of each separate sale, viz.: If the tract brings five dollars per acre or under, the second parties shall receive five per cent; if it brings above five dollars and not above ten they shall receive ten per cent; if it brings -ten dollars and not above fifteen they shall reeeive fifteen per cent and for all sums per acre above fifteen dollars they shall receive twenty per cent.”

Johnson and Coleman made the following agreement with John H. Miller indorsed on said contract:

“Assignment.

“Know all men by these presents:

“That in consideration of assistance rendered by him in the location of the lands made tinder this contract we hereby transfer and assign to John H. Miller one-third onr interest in the contract and said Miller, by signing hereto, obligates himself to take a superintending control over the lands located and entered and bear his share in the burden of this contract.

“Witness our hands and names this 25th day of Sept., 1857.”

About ten thousand acres of land were entered and patented to Charles A. Davis and Greene Moore in Newton, Barton and, other counties in this State. Greene Moore died' in 1872. He left a will executed and proved according to the laws of this State and probated in the court of ordinary of Greene county, Georgia. That will is copied in full in the former opinion of this court. We will not recopy it. By the second, third, fourth, fifth and sixth items he gave to his children,. Henry A. Moore, John W. Moore, Annie F. Adams, his grandson, Holcomb G. Moore, and his wife, Eliza L. Moore, respectively certain legacies and bequests of property in Georgia. There were other items in the will as follows:

“Item 7th.

“I have given my older children, to-wit, Adrianne W. Armor and Sarah Lee Harwell, as follows, to' my daughter first named: Three thousand' dollars in money and property and to my daughter last named, twenty-four hundred dollars. My purpose in this will, subject to the exceptions hereinafter mentioned, is to equalize my children so far as I can do so, in the distribution of my property and' to that end I direct that in the division of the residue of my estate each child shall be made to account for all the property given him or her herein, or in any other way as advancements at the estimates made by myself and that my wife shall account likewise before sharing in the said residue. I except from the general rule of equality the cases of my son Henry Antoine and John "Whitfield Moore and direct that the mill property and water power herein given them may be had by them over and above a share of my estate.

“Item 8th.

“ All the rest and residue of my estate not herein devised and bequeathed specifically I direct shall be shared by my children and wife, not including my grandson, Holcomb G. Moore, subject to the provisions of the 7th item of this my will.

“Item 9th.

“Upon the death of my children without issue I direct that the share of such child shall revert to my estate and be divided equally amongst my surviving children and the children of such of my children as may be deceased, share and share alike. Upon the death of any one of my children leaving issue I direct that the property herein given to such ehildi shall go to his or her children, and wife in case of a son, in such parts and proportions as he or she may direct by last will and testament, provided no wife of any son or grandson so dying shall take more than a child’s share under any such will.”

The testator appointed his son, John W. Moore, and his sons-in.-la¡w, James N. Armor and James M. Harwell, Ms executors. Harwell failed to qualify as such executor and’the other two qualified and settled the estate. There was at that time a statute law of the State of Georgia as follows:

“2557. (2516). Sale of wild land. On application by the administrator and due notice advertised as hereinafter provided in case of lands, the ordinary may grant an order authorizing the administrator to sell, at private sale, wild uncultivated land lying in counties other than of the administration: Provided, no objection is filed by anyone interested in the estate, and the ordinary is satisfied that such sale is preferable. ’’

On October 7, 1872, on the petition of the executors, the court of ordinary of Greene county, Georgia, made an order “to sell the wild lands in 'Missouri at private sale.”

On May 1, 1873, Ann F. Adams and husband, Sarah L. Harwell and husband, John W. Moore and wife, Henry A. Moore, Eliza L. Moore and Adrian W. Armor, executed to James N. Armor, a power of attorney, reciting:

“Whereas, Greene Moore, late of Greene county, Georgia, by his last will and testament, willed, devised and bequeathed unto his wife Eliza L. Moore, and his children, Mrs. Adrian W. Armor, Mrs. Ann Fannie E'. Adams, Mrs. Sarah L. Harwell, Henry Antoine Moore and John W. Moore, all the real estate hereinafter mentioned,” and giving to said attorney power “for us and in our names, to sell and dispose of absolutely in fee simple, all our right, title and interest, joint or several, of, in and to any and all lands, tenements and hereditaments and real estate, dying and being situated in the counties of Greene, Barton, Laclede, Barry and Newton, in the State of Missouri, the same being land located and owned by me, Chas. A. Davis, and the said Greene Moore in his lifetime, yet unsold, and all our interest in all other lands in said State of Missouri, for such price or sum of money, and to such person or persons, and on such terms and conditions as he shall think best and convenient, and also for us and in our names and as our act and deed, to sign, execute, acknowledge and deliver such deed or deeds and conveyances for the absolute sale and disposal thereof, either with or without covenants of warranty, or any part thereof, with such clause or clauses, covenant or covenants, and agreement or agreements, to be therein contained as onr said attorney shall think fit and expedient.”

On June 2,1877, a deed was executed and acknowledged, the material parts of which are as follows:

“Know all men by these presents, that the undersigned Ann Fannie E. Adams and Josiah F. Adams and Sarah L. Harwell and James M. Harwell, her husband, and John W. Moore and Eliza C. Moore, his wife, .and Henry Antoine Moore and Eliza L. Moore all by James N. Armor, their attorney in fact, duly authorized by their letters of attorney under their hands and seals, and James N. Armor and Adrian ~W. Armor, his wife, fo.r themselves, all heirs and legatees under .the last will and testament of Greene Moore, late of Greene county, Georgia., all parties of the first part, for and in consideration of the sum of $7000 to them in hand paid by Charles A. Davis of Greene county, Georgia, the receipt whereof is hereby acknowledged, have granted, bargained and sold and do hereby grant, bargain and sell unto the said Charles. A. Diavis, said party of the second part, and to his heirs and assigns forever, all our right, title and interest (the same being an undivided one-half interest as sole heir and legatees of Greene Moore, deceased, in the real estate hereinafter described) of, in and to the following described lots, tracts and parcels of land situated in the State of Missouri and in the counties mentioned, as follows, to-wit: (Conveys the land in controversy and other lands.)

‘ ‘ To have and to hold the real estate hereinbefore described, with all the rights, privileges and appurtenances thereunto belonging or in any wise appertaining unto the said Charles A. D'avis, and to his heirs and assigns forever.

‘ ‘ The said parties of the first part for themselves, their heirs, executors and administrators, do hereby covenant and agree to and with the said Charles A. Davis, his heirs, executors, administrators and assigns, that the said premises and every part thereof are free and clear of any encumbrance done or suffered by them, and that the title to said real estate and every part thereof against the lawful claims and demands of all persons whomsoever claiming or to claim any right or title thereto by, through or under them they wib forever warrant and defend. ’ ’

At that time Eliza L. Moore, the widow, was dead. By mutual mistake that deed failed to describe that part of the lands now owned by this defendant, and on February 1, 1884, the grantors in the former deed executed and acknowledged a general warranty deed, by which they conveyed the undivided half of the land in controversy herein and some other land to said Davis, for the expressed' consideration of a thousand dollars. The grantors therein being therein described as “heirs and sole legatees and devisees under the last will of Greene Moore.” James N. Armor as attorney in fact executed and acknowledged that deed for all of the grantors except himself and wife who acted in their own right. The following paper was executed by James N. Armor:

“Greene County, Georgia, June 1, 1877.

That I, James N. Armor, executor of Greene Moore, late of Greene county, State of Georgia, deceased, have sold unto Charles A. Davis, Sr., of same State and county, the whole of the interest (being one-half) of all the lands owned jointly by said Davis and said estate in the State of Missouri, being seven .thousand seven hundred and eighty-seven acres more or less, for which parcels aforesaid I have given unto said Davis my quitclaim deed as executor aforesaid, and in consideration of the conveyance unto said Dlavis of said parcels of land, as well as in full payment for any amounts due or unpaid unto the said Dfevis and said estate for sales made at any term previous to July 1/ 1877.

“The said Davis has paid unto me for the two'considerations above mentioned the sum of seven thousand dollars, the receipt whereof is hereby acknowledged; and whereas, there is a portion of the land sold previous to January 1, 1877, for the mutual benefit of the said Davis and the said estate, of the proceeds of which each of the parties at interest have received their equal share; and whereas, there may possibly arise some suit or litigation on the part of Johnson & Coleman, or parties claiming under them as regards their rights to a portion of the proceeds; now should such suit o,r claim be made against the said Davis, or estate of Greene Moore, I hereby obligate to pay half of any damage or claim that may be legally obtained, as w;ell as half the expenses of defending such suit or claim against said Davis and said estate of Greene Moore.

“J. N. Armor, Executor of Greene Moore; Dec.”

There was a stipulation as 'to facts on trial, containing the following:

“(1) The executors of the will of Greene Moore duly qualified as‘such in the court of ordinary of Greene county, Georgia, and there made distribution and final settlement of said estate. That said executors in the distribution and settlement of said estate did so according to the provisions of the seventh clause of said will and caused each of the children and widow of Greene Moore to account fo,r all the property given to him or her therein or in any other way as an advancement at the estimated values made and fixed by said Greene Moore and made said devisees equal to the amounts received by each from said estate as therein provided.

“(2) That recent search has been made in the record's and files of the court of ordinary, and no record or paper can be there found! showing or stating that the executors of said estate of Greene Moore ever made any report to the court of ordinary of Greene county, Georgia, as to* the sale of any lands in Missouri, or that there was any order made by said court approving any such sale, other than what is found in the annual and final settlements or returns- of proceeds and vouchers of said executors and their approval by said court and distribution of proceeds of sales of such lands. ’ ’

On December 27, 1882, Charles A.'Davis conveyed to the defendant by general warranty deed in the usual form the southeast quarter of section 1, township 26, range 30, in consideration of $1,360 and on the same day he conveyed' to Jacob Frey the southwest quarter of the same section, by the same kind of a deed. The defendant has since acquired the title .of Jacob Frey in said land. The will of Greene Moore and the power of attorney and the deeds herein mentioned were all promptly recorded in the proper county in Missouri.

Eliza L. Moore, the widow of Greene Moore, died at her residence in Greene county, Georgia, March 9, 1877. She left a will by which she gave Mrs. Harwell two thousand dollars, Mrs. Adams one thousand dollars, Mrs*. Armor one hundred dollars, and to Henry A. and Holcomb. G. Moore each five dollars, and gave the residue of her estate to John W. Moore. Mrs. Harwell died in 1892, leaving five children, Adrian A., Annie H., Robert H., Sarah R., and Ransom H.; the latter died in 1892, leaving four children, Armor M., Kate G., Annie F., Howard H., and a widow. Henry A. Moore died without issue, in January, 1903. He left a will by which he bequeathed to Park G. Moore, a son of John W. Moore, about $2500. James N. Armor, the husband of Adrian. W. Armor, died in 1894, leaving a will, the material parts of which are as follows:

“Item 2. I give, bequeath and consign to my daughter, Cora Lou Armor, forty shares of stock in the Georgia Railroad and Banking Co., and one thousand dollars in money. I have already given to my said daughter two seven per cent bonds of the city of Augusta of one thousand dollars each, two six per cent Deantinac bonds of one thousand dollars each, ten shares of stock in the Georgia Railroad and one thousand dollars'in money. The advancements to her with the above legacy of forty shares of stock in Georgia Railroad and Banking Co. and one thousand dollars in money amount to the sum I have advanced to each of my four sons heretofore and at different times.

“Item 3. All the rest and residue of my estate not hereinbefore disposed of including all my property, real, personal or mixed, ..of which I may die seized and possessed and in which I may have any interest legal or equitable, I give, divide, and bequeath absolutely to my wife, Adrian W. Armor. ’ ’

Mrs. Armor is still living. She has the following children: William G., James E., Walter F., and Cora L. , who married Mr. Turned in 1894. Mrs. Armor had a son, Charles H., who died March 9’, 1910, leaving a widow and four children, Charles R., James E., Effie M. , and Robert C. The children of Mrs. Armor have each received three or four thousand dollars from her as advancements.

John W. Moore died in April, 1911, leaving a widow Eliza C., and three children, Park G., Girard A., and Lidias E., who married Mr. Wright.

It was not shown that John W. Moore left any property of his own, but-he left a will with the following provisions therein:

“Item First. I give, bequeath and devise to my son, Park G. Moorei, ad that certain tract or parcel of land, known as the Cunningham Place, in said State and county, bounded north by lands of T. H. Crawford, east by lands of said P. G. Moore and Mrs. J. W. Moore, south by lands of P. G. Moore, known a.s Park Place, and west by Oconee River, said tract containing four hundred and thirty-five and one-half (435%) acres, be the same more or less. I make this gift to my son by virtue of the authority given me in the last will and testament of my father, Green Moore.”

Mrs. Adams is still living; six of her children, to-wit: William E., Ida M., Alice, May, Bessie, and Calhoun R., are living. One; Robert F., died leaving a widow and one child, Fannie E. Holcomb G. Moore is still living.

Immediately after the purchase of the land in 1882, the Freys took possession of the land, enclosed it and made valuable improvements on it.

All of the living descendants of Greene Moore are made plaintiffs herein, and so far as the record shows, none of them has ever resided elsewhere than in the State of Georgia.

Point Decided on Prior Appeal.

I. We will not enter upon a reconsideration of the question as to whether the remainder created by the. ninth item of Greene Moore’s will is valid. That was rightly determined on the first appeal and there being no change in the facts bearing on that issue, the question is not fo.r consideration on this appeal.

Conveyance by Executors.

II. We shall not undertake to decide whether there is an implied power of sale given to his executors in Greene Moore’s will; nor shall we determine whether the Georgia execu, tors of the will had the power to sell and convey lands in Missouri. We have reached the conclusion that there was no. sale o,r conveyance of the land in Missouri by the executors, and that is decisive of the other questions mentioned.

In 18 Cyc., p. 1334, it is said: “At common law a mere naked power of sale as distinguished from a power coupled with an interest could not be exercised by less than the entire number of executors appointed. This rule was modified by statute as to cases in which a portion of the executors refused, and as so modified was adopted as a portion of the common law of the United States, and it may now be said to be the general rule in the United States that a power of sale unless expressly restricted may be exercised by the representatives who qualify or survive. ’ ’

■ It is contended by the respondent that the question whether there has been a sale of this land by the executors must be determined by the law of Georgia. Without assenting to that proposition, we call attention to the fact that it was held in Hosch Lumber Co. v. Weeks, 123 Ga. l. c. 340, that in seeing wild land under the statute of that State, the executors must all join. That doctrine was reaffirmed on a second appeal, reported in 133 Ga. 472.

The industry of counsel for respondent has not been able to furnish a precedent to the contrary. They cite Roe v. Smith, 85 N. Y. Supp. 527. In that case the will gave two executors the land in trust with power to sell and distribute proceeds among the testator’s children at the end of the trust. The executors together entered into an oral agreement to sell, and the contract was reduced to writing at their direction. But when it came to signing, one of them was not. present, but directed the other to sign for him. The contract purported to be by both, but was only signed by one. The court said:

“The one being authorized by the other, his signing binds both, the contract not being under seal. It is the same as the case of an agent signing his own name instead of that of his principal to an executory contract; the principal is bound, and oral evidence to prove that he authorized the agent to sign is not excluded by the Statute of Frauds. [Briggs v. Partridge, 64 N. Y. 357, 21 Am. Rep. 617.]

“The rule that delegated authority involving the exercise of judgment and discretion cannot be redelegated is not in the way. The trust authority to agree to sell was not delegated; no .exercise of judgment and discretion was delegated; only the formal signing was delegated after the terms of the contract had been agreed upon.”

In Gates v. Dudgeon (N. Y.), 66 U. S. Rep. 116, cited by respondent, it was held that where an executor with power under a will to sell realty and with full knowledge of the facts, has determined to sell at a fixed price, he may authorize his attorney to dose the sale, and that the contract thus made by the attorney is binding upon him. “ Those cases have no parallel in the facts of this case.

'We thus conclude that even if Armor. as such executor made a quitclaim deed to Davis, it was not effective for want of the concurrence of John W. Moore, the other executor.

It is earnestly contended that the deed of February 1, 1884, from the Moore devisees to Davis constituted a good executor’s deed from John W. Moore and James N. Armor as such executors to Davis. We say no. That deed nowhere has any mark to indicate that it is the deed of the executors. On the contrary, it indicates that it was intended to be and is the individual deed of the grantors.

In Grace v. Perry, 197 Mo. l. c. 568, it was, in effect, held that wherever there is a conveyance by the donee of a power, although there is no reference to the power, yet if the conveyance cannot be given full effect without its being construed as an execution of the power, then it will be held to be such execution.

That rule does not apply in this case. An executor in making a sale of realty under a power in the will does not act merely as the donee of the power. He acts officially. It is so held in Woerner’s Law of Administration. [2 Ed.], sec. 480. The same author, vol. 2, sec. 1067, says: “The deed of an executor or administrator should show upon its face the authority under which it was given, with sufficient certainty to enable the act done to be traced' to the authority vested in him; for such a deed conveys no title unless executed pursuant to the decree or order of some court of competent jurisdiction. But it is not necessary that the grounds or reasons upon which the court proceeded in making the order of sale be specified, if the legal necessity to sell appear. Deeds have been held sufficient, not reciting the authority by which given, but referring to the same, and the administrator describing himself as such; and even without being signed by the administrator, but the capacity in which he acted appearing in some part of it. ”

It was held in Lockwood v. Sturdevant, 6 Conn. l. c. 385: “It is an established principle, that the authority by virtue of which an administrator is empowered to sell and convey estate must appear on the deed of conveyance, and with such certainty that the act done shall visibly be warranted by the poiver conferred. [Rex v. Austrey, K. B. Easter term, 1817; 3 Stark. Evid. 1198; Rex v. Croke, Cowp. 29; 2 Swift’s Dig. 789, 790; Oliv. Conv. 178.] And although in some cases it has been held, ;tha:t the authority need not be referred to when the act done is of such a nature that it can have no operation unless by virtue of the power (4 Cruise’s Dig. 240; 3 Johns. Ch. Rep. 551; 6 Co. 17b; 2 Brown’s Chan. Rep. 300; 8 Ves. 609; Litchfield, Com. Dig. tit. Poiar. C. 4), yet this principle has never been supposed applicable to the conveyances made by executors and administrators. [Griswold v. Bigelow, 6 Conn. 258.] ’ ’

We have not been able to find any authority for holding that a deed appearing on its face to be the individual act of the grantor can be construed to be his act as executor, either under power in a will, or under an order of the court.

Partnership Realty.

III. There is a contention as to whether the land in Missouri was partnership property of ^he firm Moore & Davis. We shall consider the case on the theory that it was partnership assets.

In Shumaker on Partnership, p. 202, it is said:

“As has been seen, the legal title to real estate cannot be held by the firm, as such. Where the legal title to realty is vested in more than one partner, it is held by them as tenants in common, but in equity it is chargeable with the partnership debts, and with any balance which may be due from one partner to another upon winding up the affairs of the firm.”

Bates on Partnership, vol. 1, sec. 300, says: “The remaining partner has more than a mere lien.to have the property applied to paying debts, he has an equitable estate; he has the right to control the property, and to treat it as personalty in order- to wind up. He can sell the entire beneficial interest without proceedings to get a decree for that purpose, and the buyer is not obliged to see to the application of the purchase money, as such burden would greatly reduce the value.” And the same author (sec. 297) says: “But the now unanimous American doctrine is, that after the partnership demands are satisfied, the unexhausted surplus is real estate. The basis of absolute -or partial conversion into personalty is the presumed intention, and equity will not go further and convert it into personalty for additional purposes, such as for the mere purpose of division, unless the intention to convert for more than partnership purposes appears; hence, in this country, the widow has dower out of a partner’s share in the surplus, and the share goes to the heir and not to the executor.”

Chancellor Walworth in Buchan v. Sumner, 2 Barb. Ch. (N. Y.) l. c. 206, holds that the legal title will remain undisturbed except to' protect the rights of members of the firm. Of course that includes the rights of creditors.

In Buckley v. Buckley, 11 Barb. 75, it is said: “It is due to the creditors and the members of the firm that the property should not he withdrawn until the partnership affairs are adjusted. But as between heir and executor, the reason of the rule fails.”

There is no creditor of the firm of Moore & Davis making any claim against the land. Unless there has been a conveyance of the land by the surviving partner as such the title remains unaffected by the fact of such partnership.

There is a contention as to whether the surviving partner had the power to sell the land in Missouri. We leave that question without consideration, for the reason that we hold that there ha,s never been any sale by the surviving' partner.

The deeds made by Davis to the Freys were not made by him as such surviving partner, and did not purport to be so made. At that time Davis, as he supposed, had become the owner of the entire Moore interest and claimed to own the land absolutely as his own. By no process- of reasoning can the deeds to the Freys be construed as the deeds of the surviving partner. In the receipt given by the -executor Armor to Davis at the time of the making of the deed to Davis in 1897, it was agreed that each should pay half of the Johnson and Coleman claim. Whatever other effect such receipt pray have had, it shows that Davis did not from that time' assume to hold the land as partnership assets, but as his own.

We are: thus driven to the conclusion that the interests of the remaindermen under Greene Moore’s will have never been divested by any deed either of the executors or of the surviving partner. Those remaindermen did not receive from the executors or from anyone else any of the proceeds of the sale of the land to Davis. The receipt of such proceeds by the life tenants did not in any way bind or estop- the remaindermen. They do not take under the life tenants, but directly from the testator, Greene Moore.

Estate in Remainder Limitations.

IV. On the death of Henry A. Moore in 1903, without issue, Mrs. Armor, Mrs. Adams, John W. Moore, and Holcomb G. Moore each became entitled to a fifth of the twelfth interest devised to. Henry A. for life. The interest thus acquired by John W. passed by virtue of the warranty in his deed to Davis to the defendant.

The issue of Mrs. Harwell became entitled to the other fifth of the Henry A. Moore twelfth.

The interests of Mrs. Armor and Mrs. Adams thus acquired are not barred by the Statute of Limitations as they did not vest in possession until 1903, within ten years before this suit was instituted.

Covenants of Warranty: Liability.

V. It is claimed by the respondent that the four sons of Adrian W. Armor received advancements from their father, and that her daughter, Mrs. Turnell, received a bequest of several thousand dollars under the will of her father; and that a liability exists against them in favor of the defendant on the warranty of their father to the extent of the advancements and bequest received by them.

It is true that a husband was liable at that time on his warranty contained in a deed made by him and his wife conveying the wife’s land. It was so held in Pratt v. Eaton, 65 Mo. 157, and in Foote v. Clark, 102 Mo. l. c. 405. But no authority can be found for holding an heir liable on the covenant of his ancestor on account of advancements, and we hold that no such liaibility exists.

common Law State: Presumptions,

The question next arises whether Mrs. Turnell, a a resident of Georgia, is liable on the warranty of her father, a resident of that State, by reason of the fact that she was given property in that State under the will of her father who died there and whose estate was there administered. At common law the devisee or legatee was not so liable. We have a statute making the devisee liable on the covenants of the ancestor to the extent of the assets re- , ceivea. The evidence does not snow mat such a statute exists in Georgia. This State cannot by statute impose an obligation upon a devisee in that State under such circumstances. Georgia is one of the States originally under the common law; and, in the absence of any showing of a statute of that State it will be presumed that the common law is in force there. [Benne v. Schnecko, 100 Mo. 250.]

Foote v. Clark, 102 Mo. 394, was a case similar to this except that the plaintiffs inherited lands from the warranting ancestor in North Carolina. It was held that the plaintiffs were not estopped to claim their interest in the Missouri land, but it was held that they were liable on their ancestor’s warranty to the extent of the lands descended. In that case it was said (l. c. 408):

“Now we do not say that the defendant has an equitable lien on the land in question for the damages which will arise from the breach of the covenents made by Mrs. Hunt. But the effect of a recovery of the land by the plaintiffs is to make breach of the covenants of their mother. The very judgment which they obtain brings upon them a liability to the defendant for a breach of those covenants. There are no assets in this State belonging to her estate, so there can be no administration upon her estate here.

“The plaintiffs are nonresidents and now insolvent. It is manifestly unjust and inequitable to allow the plaintiffs to recover the land, and! then send the defendant to another State to recover his damages — a fruitless errand. His remedy at law is wholly inadequate under the circumstances here disclosed. Insolvency or nonresidence often furnishes a ground upon which a court of equity will declare an offset, where the offset would not he allowed at law. [Field v. Oliver, 43 Mo. 200; Fulkerson v. Davenport, 70 Mo. 541; Barnes v. McMullins, 78 Mo. 260; Wallenstein v. Selizman & Co., 7 Bush, 175.] Such relief is not granted on the ground that the parties have cross demands, but in order to prevent injustice. ’ ’

In that case the heir was held liable at common law to the extent of assets descended in North Carolina.

As the Missouri statute creates no liability on account of a devise of property in Georgia, and as there is no such law in Georgia so far as the record shows, we hold that Mrs. Turnell is not liable to the defendant on 'account of the bequest to her in her father’s will.

Appointment Power.

VI. John W. Moore by will executed the power of appointment contained in Greene Moore’s’ iWill; and appointed his son, Park G. Moore, as the appointee of the remainder in the land devised for life to said John W. Moore. Such an appointment was not a devise of land by John W. Moore to his son, Park G. It was a mere execution by will of the power of appointment; and the son took, not from his father, hut from his grandfather, Greene Moore, by virtue of such appointment. Such being the case, Park G. Moore is not liable by reason of land received by him under such appointment.

Liability of Wife.

VII. Mrs. Eliza C. Moore, the then wife and now the widow of John W. Moore, was not bound *>y the warranty in the deed from the Moores to Davis. The power of attorney under which the deed to D'avis was executed clearly showed that she had no interest in the land except as- the wife of one of the grantors. The interest which vested in her as a remainderman under Greene Moore’s will on the death of her husband did not pass under the warranty in the deed to Davis, and she is an equal owner with her children in the twelfth interest in which her husband held the life estate.

Quieting Title: Limitations: Adverse Possession.

The respondents insist that those plaintiffs VIII. herein who claim estates in remainder np-. on pending life estates, and who are not under disability, and who failed to sue to quiet title within ten years after .their right to bring such suit accrued, are barred not only .of their right to bring such suit but also of their estate in remainder. Some of this series of suits were brought within ten years after 1897 and some, later.

Murray v. Quigley, 119 Iowa, 6, and Crawford v. Meis, 123 Iowa, 610, under similar statutes hold that the remaindermen are so barred. Judge Philips in Hubbard v. Groin, an Iowa case, reported in 137 Fed. 822, followed those cases.

We have reached a different conclusion for the following reasons: The life estate is the support and foundation on which the remainder must stand.

In Allen v. DeGroodt, 98 Mo. l. c. 162, it was said: “And it is well-established law that if a life tenant renew a lease., or buy in an encumbrance or the like, the fealty which he owes to the remaindermen will convert him into a trustee for the benefit of such remainder-men. ” '

In Salmon v. Davis, 29 Mo. l. c. 181, it was said: “A person having a life estate in property cannot, by his acts or declarations set up pretensions to an absolute estate, so as to make his possession an adverse one to the reversioner or remaindermen. The reason of this is that there is no right of action in the reversioner until the particular estate has determined, and the possession of the life tenant is entirely consistent with the title of the reversioner. In fact the latter concedes the existence of the former, and whatever the tenant for life may do or say about Ms title can be of ím consequence to the reversioner; for, whether true or false, the latter cannot disturb the life tenant during the admitted duration of Ms tenancy. It is impossible, therefore, for the tenant for life to make his possession an adverse one to the claim of one who has the remainder or reversion.” That case was cited with approval in Keith v. Keith, 80 Mo. l. c. 127; Hall v. French, 165 Mo. 439; Charles v. Pickens, 214 Mo. l. c. 215. To the same effect is Bradley v. Goff, 243 Mo. 95.

Pomeroy’s Equity, vol. 4, sec. 1397, speaking of statutes for quieting title says they are enabling acts. It follows that they are not penal, restrictive or destructive. A suit under the statute to. quiet title may be transformed or converted into a very different kind of suit or suits.

In Griffin v. Nicholas, 224 Mo. l. c. 291, it was held that such a suit might he “converted into a suit in equity.” The amendment made to the statute in 1909 was intended to give full affirmative relief in case the action was so converted. If a person invokes the jurisdiction of the court by the institution of such a proceeding, he must be ready to present every claim which ha may have to any interest in the property; and his opponent must do likewise, and both will be concluded by the result as to every interest which either may have whether presented or not. [Emmert v. Aldridge, 231 Mo. 124.]

It still remains that the suit to quiet title, as contemplated by the statute, and before it is so converted, is a proceeding by one claimant of an interest in real property against another such claimant, asking the court to ascertain and determine; define and adjudge the title, estate and interest of the parties. It does not ask for the recovery of real estate or the possession thereof. It does not ask affirmative relief. It seeks simply an ascertainment of the status quo of the title or titles to the property. "We will compare a suit to quiet title under the statute with one for partition. In partition, under section 2575, the court may decide upon the adverse claims of the parties. Under section 2572, it “shall declare the rights, titles and interests of the parties.” In Chamberlain v. Waples, 193 Mo. l. c. 108, it was said: “The essential requisites of a proper judgment in a partition proceeding are that the court shall ascertain and define the interests of the parties among whom the land is to be partitioned, and it is equally essential that the judgment predicated upon a proceeding based upon section 650 should ascertain and define the title and interest of the parties to the land in dispute between the parties to the suit.”

In Real Estate Co. v. Lindell, 133 Mo. 386, it was held that a partition suit is not one to recover lands and that the Statute of Limitations does not apply. Either one of several cotenants can ask for partition the one against the other. The right is reciprocal. If they let more than ten years go by, they will be equally at fault and neither can charge the other with having’ gained or lost anything by the delay. The statute under discussion contemplates two or more adverse claimants and gives to each the right of action against the other regardless of the possession of the property. They may each allow ten years to elapse after knowledge of the other’s adverse claim without proceeding to quiet title. The statute will not, for such failure, bar the rights of both, and its language does not give preference to one over the other. It may develop in the course of the proceeding that some right claimed or some affirmative relief sought by the parties is barred by the Statute of Limitations, but we feel sure of our position when we say that the mere failure for ten years to sue under the statute after the right to sue has accrued does not bar the right to so proceed thereafter, and such failure of a remainderman does not bar his estate in remainder.

The ease of Bradley v. Groff, 243 Mo. 95, involved every question here under discussion. The remainder-men were made defendlants in a suit by life tenants claiming adversely to them to quiet title. In their answer they made the necessary allegations and asked that their title to the estate in remainder be quieted in them. That case as reported does not show the date of the filing of that answer. We have examined the abstract of the record filed therein, from which it appears that the answer was filed December first, 1908, more than ten years after the statute went into effect and more than ten years after their right to bring such suit accrued. It did not occur, to counsel or court in that case that the Act of 1897 had in any way affected the question of the Statute of Limitations as against remaindermen. The court said, speaking through Bond, C. (l. c. 102): “Respondent suggests that the Statute of Limitations ran in his favor. Obviously there is no merit in that contention, -for the remainder-men in the deed under review are not yet entitled to the possession of their estate.”

Brewster v. Land & Imp. Co., 247 Mo. 223, so far as it goes, is in harmony with our present position.

Allowance for Improvements.

IX. We are of the opinion that the defendant is entitled to an. allowance for the improvements made by him in good faith.

Freeman in his work on Cotenancy and Partition, sec. 510', approved the doctrine announced in Green v. Putnam, 1 Barb. 507, as follows: “To entitle the tenant in common to an allowance on a partition in equity, for the improvements made on the premises, it does not appear to be necessary for him to show the assent of his cotenants to such improvements, or a promise on their part to contribute their share of the expense; nor is it necessary for them to show a previous request to join in the improvements, and their .refusal. The only good faith required in such improvements is that they should be made honestly for the purpose of improving the property and not for the purpose of embarrassing his cotenants, or incumbering their estate, or hindering partition. ’ ’

The defendant is entitled in a proper partition proceeding to have an allowance for whatever amount it may be found that the value of land has been increased by.the improvements placed thereon in good faith, by the defendant.

As a result of the law as above declared applied to the facts in this case, we find that the rights, interests and estates of the several parties to this suit in said land are as follows:

The defendant owns the undivided half originally owned by Davis in fee simple.

The widow of Greene Moore g’ot. an undivided twelfth of the land in fee by the will, and that interest passed by her will to her children, and by their deed to Davis.

The twelfth interest devised to Mrs. Harwell for life, on her death in 1892 passed to her children under the will of Greene Moore as remaindermen. It is conceded that such interest has passed out of the Harwell children by the Statute of Limitations and is now vested in the defendant.

On the death of Henry A. Moore without issue and leaving no widow, in 1908, the remainder of his one-twelfth was divided into five parts, each part being a fifth of a twelfth or a sixtieth of the entire interest in the land.

John W. Moore was entitled to one of those shares, and such share passed to the defendant by virtue of the warrenty in the deed to Davis.

The defendant thus owns in fee forty-one sixtieths of the land. He also owns the life estates of Mrs. Armor- and Mrs. Adams each in a twelfth of the land.

The children and grandchildren of Mrs. Harwell, per stirpes, own and are entitled to the possession in fee simple of the- one undivided sixtieth of the land which fell to them as remaindermen on the death of Henry A. Moore without issue.

The widow and children of John W. Moore are the owners in-fee simple of a twelfth interest in the land which fell to them on the death of their husband and father, the life tenant. We note that his widow is not made a party to this suit:

’ The issue of Mrs. Armor and of Mrs. Adams respectively have contingent remainders in the shares of one-twelfth each devised to them. Mrs. Armor, Mrs. Adams and Holcomb Gr. Moore are each the owner of a sixtieth interest in the land and are entitled to the possession thereof in fee simple. Said interest fell to them on the death.of Henry A. Moore.

X. The third count in the petition is in ejectment. Those plaintiffs who are the issue of Mrs. Harwell are entitled to a judgment that they recover the possession of their undivided sixtieth of the land, and those plaintiffs who are the children of John W. Moore are entitled to a judgment for the possession of their three-fourths of an undivided twelfth of the land. Mrs. Armor, Mrs. Adams and Holcomb Gr. Moore are each entitled to a judgment for possession of a sixtieth of the land. As to all other plaintiffs, the judgment should be for the defendant on the third count. Such judgment should be subject to defendant’s rights to an allowance for improvements.

Rents

Ordinarily in ejectment rents are recoverable. It aPPears in this case that the interests of the plaintiffs who are entitled to judgment in ejectment are subject to the defendant’s claim for an allowance for improvements. Plaintiffs are not entitled to their proportion of the full rental value, but only to such proportion of what the land would rent for without the improvements. There is no¡ evidence in the case from which we can make such calculation. >

Partition

XI. The second count, which is for partition, is dismissed, without prejudice, however,, to the rights of the plaintiffs to maintain a new action for partition of the land in controversy.

Adverse possession.

A disséizure on actual adverse possession destroys the unity of possession among tenan^s common and takes away the rights’ of partition until the title is determined by an action of ejectment. [Forder v. Davis, 38 Mo. 107; Shaw v. Gregoire, 41 Mo. 407; Haeussler v. Mo. Iron Co., 110 Mo. 188; Hutson v. Hutson, 139 Mo. 229; Estes v. Nell, 140 Mo. 639.]

Reliance on Legal Title

"Where a plaintiff brings suit to establish an equitable interest in land, he may, in the -same soxit, have partition. [James v. Groff, 157 Mo. 402; Holloway v. Holloway, 97 Mo. 628; Barnard v. Keathley, 230 Mo. 209.]

The plaintiffs in this case have not alleged any equitable right to the land, and stand on their legal title. They are not entitled to sue for partition until after their possessory right is determined, and we are of the opinion that the court for partition is premature.

The judgment is reversed and the cause remanded with directions to enter a judgment in accordance with this opinion.

Williams, G., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur.