Leete v. State Bank

42 S.W. 927, 141 Mo. 584, 1897 Mo. LEXIS 349

Opinion

IN DIVISION TWO.

Sherwood, J.

— Action of replevin for four bonds. These bonds were bought by plaintiff’s husband with funds which came from plaintiff’s father’s estate. Plaintiff’s father died in 1870, testate, and her marriage occurred in 1871, and the bonds were purchased by him in his own name.

This cause, though not to be found in our reports, yet was decided at the same term that a case between the same parties was decided, reported in 115 Mo. 184 (see 21 S. W. Rep. 793), and as to the constitutional question involved, is governed by the same considerations as those which prevailed in the former case.

This being so, renders it needless to discuss any question respecting the force and effect of section 6869, supra, since in the view we have taken of the matter, as well now as at a previous time, that section has for constitutional reasons no retrospective effect, and consequently no bearing on the present case. Arnold v. Willis, 128 Mo. loc. cit. 150.

But aside from the foregoing remarks, plaintiff can not recover in this action for the reason that the legal title to the bonds is not in her, and she is therefore not entitled to the immediate and exclusive possession, and must recover on the strength of her own title and not on the defects in the title of her adversary.

This is elementary law. Turner v. Langdon, 85 Mo. loc. cit. 441, and cases cited; Stonebraker v. Ford, 81 Mo. 532.

For these reasons we affirm the judgment.

All concur.

IN BANO.

Peb Cubiam. — The foregoing opinion, prepared by Judge Shebwood while this cause was in Division Two of the Supreme Court, is hereby approved and adopted as the opinion of the court in banc. The judgment is accordingly affirmed.

Gantt, Macfablane, Bubg-ess, Robinson, and Bbace, JJ., concur-' ring with Judge Shebwood in the said opinion and judgment. Babclay, C. J., dissents.