Billion v. Walsh
| Decision Date | 31 October 1870 |
| Parties | MARY BILLION, Appellant, v. ISABELLA WALSH et al., Respondents. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
McClure, and Dryden, Lindley & Dryden, for appellant.
Defendant can not set up this defense under the act of 1855, because the act provides that the limitation of the actions shall be governed by the law in force at the time the right of action accrued. (R. C. 1855, p. 1053, § 15; id. 1049, § 10.) This took effect on the first day of August, 1866.
Hill & Jewett, for respondents.
I. Ten years' adverse possession, since the act of 1847 (limiting to ten years), is sufficient to give title, though the right of
possession or of action accrued before the passage of the act of 1847. (City of Carondelet v. Simon, 37 Mo. 408; Callaway County v. Nolley, 31 Mo. 393.)
II. Section 14, p. 918, Wagn. Stat., plainly relates to personal actions.
This is a proceeding in equity to set aside certain deeds, and to restore the plaintiff to the possession of the premises thereby sought to be conveyed. The controlling facts of the case are as follows: In 1812 Margaret Graham acquired from her father the title to the premises in controversy. She soon after intermarried with Michael Connell, who died in 1831 or 1832. Prior to his death, and soon after the marriage--namely, July 7, 1812--Connell and wife joined in the execution of a deed of the premises o Edward Hempstead, Mrs. Connell being at that time an infant under the age of twenty-one years. She died in the fall of the following year, and while yet a minor, and left the plaintiff as her only child and heir at law, the plaintiff herself then being but a few months old. In 1829 the plaintiff, she still being in law an infant, intermarried with Cyprian Billion, from whom she was divorced in January, 1862. This suit was brought in September, 1866, and consequently more than three years after Mrs. Billion, the plaintiff, became discovert, and thus relieved of the legal disability resulting from her marriage.
Edward Hempstead, the grantee in the deed from Mr. and Mrs. Connell, took possession of the granted premises under the deed soon after its execution; and the evidence tended to show that such possession, under claim of title, was continued by him and those claiming under him from that time forward, a period of more than fifty years. The defendants mainly rely upon the statute of limitations as a bar to the suit. Does the limitation act of 1847 (Sess. Acts 1847, p. 94) apply to and govern the case? That is the only point it will be necessary to consider in this opinion.
The first section of the act referred to limits real actions to ten years from the date of their accrual; and the fourth section provides a saving, to persons under disability, of three years. In the case at bar, as we have seen, the statute had run more than ten years when the plaintiff's disability of coverture ceased. We have also seen that the action was not brought till more than three years after the occurrence of that event. The case, therefore, falls clearly within the provisions of the act 1847.
The plaintiff, by her counsel, insists, however, that the limitation act of 1825 (R. C. 1825, p. 510, § 2) applies to and governs the case. This act provided a general limitation of twenty years, with a saving to persons under disability of twenty years more--thus in certain cases enacting a limitation of forty years. The plaintiff claims the benefit of the twenty years' limitation, after the removal of disabilities. This claim is founded upon the theory that the provisions of section 15, article III, chapter 103, of the limitation act of 1855 (R. C. 1855, p. 1053, § 15) take the case out of the other provisions of that act, as also out of the other provisions of the act of 1847, and subject it to the limitation act of 1825. The section referred to (§ 15) provides a follows: “The provisions of this act shall not apply to any actions commenced, nor to any cases where the right of action or of entry shall have accrued, before the time when this act takes effect, but the same shall remain subject to the laws then in force.” What are the “laws” here referred to? The laws in force at the time the act took effect, or at the time the right of action accrued? The plaintiff assumes the latter position, and claims that her right of action accrued in 1832, upon the death of Connell, when the limitation act of 1825 was in force, giving twenty years in which to sue, after the removal of disabilities, and that this latter act is the one that fixes the right of the parties. The position assumed is not sustainable. It is at variance with the letter and spirit of the law, and the whole tendency of legislation on this subject for the last generation. In 1835 the period for suing after the removal of disabilities was cut down one-half--namely, to ten years. In 1847 the Legislature took up the subject again, and reduced the limitation from ten to three years, and so the law has remained ever since, showing a fixed determination on the part of the Legislature to limit the saving on account of disabilities to the period of three years.
In the limitation act of 1845 (R. C. 1845, p. 72, § 16) the section corresponding to that of section 15 in the limitation act of 1855, is in these words: “The provisions of this act shall not apply to any actions commenced, nor to any cases where the rights of action or of entry shall have accrued, before the first day of December, 1835, but the same shall remain subject to the laws then in force;” that is, subject to the act of March 16, 1835, which was in force at the time mentioned. Between 1835 and 1845 there was no modification of the limitation law, so that the act of 1835 was in force when the revised act of 1845 went into operation. The effect of the provision was therefore the same as that of section 15 of the act of 1855; that is, the law in force at the time of its enactment was to govern when the right of action...
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