Fairbanks v. Long

• Decision Date: 16 May 1887
• Citation: 4 S.W. 499,91 Mo. 628
• Parties: FAIRBANKS and others v. LONG and others.
• Court: Missouri Supreme Court

4 S.W. 499

91 Mo. 628

FAIRBANKS and others v. LONG and others.

Supreme Court of Missouri.

May 16, 1887.

1. LIMITATION OF ACTIONS — EJECTMENT — INSTRUCTION.

Rev. St. Mo. § 3225, provides that any person claiming any real estate in the lawful possession of another, and which has not been in possession of such claimant, or any one under whom he claims, for 30 consecutive years, and on which he has paid no taxes, and the equitable title to which has emanated from the government more than 10 years, shall within one year bring his action to recover the same, or be forever barred. Held, that where this section was pleaded as a bar to an action of ejectment, although by its instructions the court erroneously made the bar of the statute complete against plaintiff upon proof of the two facts only, — that defendants were in possession of the premises at the time of the commencement of the action, and that neither plaintiff, nor those claiming under him, had been in possession of the premises for 30 years last past, — yet, as it appeared upon all the evidence that plaintiff could not recover, the erroneous instruction was not ground for reversal.

2. SAME — EQUITABLE TITLE.

Mansfield v. Pollock, 74 Mo. 186, and Rollins v. McIntire, 87 Mo. 497, holding that the statute applies to cases where the legal as well as the equitable title has emanated from the government, reconsidered and affirmed.

3. SAME — STATUTE — DISABILITY.

The statute is absolute, and makes no exceptions in favor of those laboring under disability. Held that, where such is the case, the court cannot introduce any exceptions into the statute on the ground of inherent equity, or because it may appear reasonable that the statute should not run against a party in a given case.

Appeal from circuit court, Chariton county.

Chas. Hammond and P. A. Reece, for plaintiffs in error. H. Lander, for defendants in error.

BRACE, J.

This is an action of ejectment to recover the S. W. ¼ of section 22, township 56, range 21, in the county of Chariton. The petition in usual form was filed January 31, 1882. The answer of defendants David and Elizabeth Ballew was a general denial. Defendant Long filed a separate answer, and, in addition to a general denial, alleged that the land sued for was "military bounty land," and set up the two-years statute of limitations, and, for a further defense, alleged "that he, and those under whom he claims, have been in the actual possession of the premises in question for many years before the commencement of this suit, and that said premises have not been in the possession of the plaintiffs, or of any one under whom they claim, for more than 30 years next before the commencement of this suit, and that the plaintiffs, or any of them, or any one under whom they, or either of them, claim, have paid no taxes on said premises for more than thirty years next before the commencement of this suit, nor at any other time." The case was tried by the court without a jury. Finding and judgment for the defendant, and brought here by plaintiffs by writ of error. The errors assigned are the refusal of the court to give plaintiffs' declarations of law Nos. 3 and 5, and the giving of defendants' declarations Nos. 1, 2, 3, and 4.

It is conceded that the right of action of all the plaintiffs was not barred by the two-years statute, and the finding of the court was upon the theory that plaintiffs' recovery was barred by section 1 of the statute of February 27, 1874, (Laws 1874, p. 118; Rev. St. § 3225.) The point made, that no issue under that statute was raised by the pleadings owing to the insufficiency of Long's special plea, is not well taken; for, by the express terms of that act in a case coming within its provisions, the claimant's recovery is not only barred, but his right and title is ipso facto vested in the possessor; and, even if it were not so provided, it is well-settled law in this state that in ejectment it is not necessary to plead specially the statute of limitations. It operates upon the right, and vests title, and the facts to confer title may be given in evidence under the general issue. Nelson v. Brodhack, 44 Mo. 597; Fulkerson v. Mitchell, 82 Mo. 14, and cases cited.

There was no evidence to support plaintiffs' declaration No. 5, and consequently no error in its refusal. Defendants' declaration No. 3 was upon the two-years statute of limitations, and Nos. 2 and 4 are unexceptionable, and the objections to them are not insisted upon; so that, for the determination of this cause, it will only be necessary to consider declaration No. 1, given for the defendants, and plaintiffs' declaration No. 3, refused.

The court by its action on these last two declarations in effect declared the law to be that if it appeared from the evidence that the defendants were in the actual possession of the premises in question before and at the time of the commencement of the suit, in good faith claiming title thereto, and that the plaintiffs, nor any of them, nor any one under whom they claim, were ever in possession of said premises, or ever paid taxes on said premises for the period of thirty years last past, then the defendants' possession was within the protecting provisions of section 1 of the act of February 27, 1874. That section reads as follows: "Any person claiming any real estate in the lawful possession of another, and which has not been in possession of such claimant, or any one under whom he claims, for thirty consecutive years, and on which neither he, nor those under whom he claims, has paid any taxes for all that period of time, and the equitable title to which has emanated from the government more than ten years, shall, within one year from the approval of this act, bring his action to recover the same, and in default thereof he shall be forever barred, and his right and title shall ipso facto vest in such possessor."

Under the construction placed upon this act in Rollins v. McIntire, 87 Mo. 496, the 30 years next preceding the date of the act is the period contemplated by the act, and "the claimant at the date of the act, and his predecessors in the chain of title under which he claims within said period of thirty years, as well as the person in actual possession at...