Bird v. Sellers

• Decision Date: 14 May 1894
• Citation: 26 S.W. 668,122 Mo. 23
• Parties: Bird v. Sellers, Appellant
• Court: Missouri Supreme Court

26 S.W. 668

122 Mo. 23

Bird v. Sellers, Appellant

Supreme Court of Missouri, First Division

May 14, 1894

Appeal from Gentry Circuit Court. -- Hon. C. A. Anthony, Judge.

Reversed.

J. W Peery and J. L. McCullough for appellant.

(1) The petition only alleged and prayed judgment for damages in the sum of $ 100; it was therefore error for the court to render judgment for damages in the sum of $ 260. Carr v Edwards, 1 Mo. 137 (Marg.); Hayton v. Hope, 3 Mo. 53; Maupin v. Triplett, 5 Mo. 422; Moore v Dixon, 50 Mo. 424; Armstrong v. St. Louis, 3 Mo.App. 100; Poulson v. Collier, 18 Mo.App. 605, loc. cit.; Carter v. Shotwell, 42 Mo.App. 665, loc. cit.; Pope v. Salmon, 35 Mo. 365. (2) This error being apparent on the face of the record, may be taken advantage of, though no motion in arrest of judgment was filed. Carr v. Edwards, 1 Mo. 137; Maupin v. Triplett, 5 Mo. 423; Hamstead v. Stone, 2 Mo. 66; Bateson v. Clark, 37 Mo. 31; State ex rel. v. Matson, 38 Mo. 489; Bagby v. Emberson, 79 Mo. 139; McIntire v. McIntire, 80 Mo. 470; Funkhouser v. Mallen, 62 Mo. 555; State ex. rel. v. Scott, 104 Mo. 31; Weil v. Green Co., 69 Mo. 268; Smith v. Burnes, 106 Mo. 94; Harrington v. Evans, 49 Mo.App. 372; Mumma v. Standte, 24 Mo.App. 473; Finkelnberg Mo.App. Practice, pp. 84, 85. (3) The holding of division number two of this court, upon the former appeal, that section 221 of Act of 1872 was repealed, is in direct conflict with section 3161 Revised Statutes, 1879, and of the decisions of this court in the cases of Allen v. White, 98 Mo. 55, and State v. Hickman, 84 Mo. 78, and such holding should be reviewed. Leete v. State Bank, 115 Mo. 184; State v. Hickman, 84 Mo. 78; State v. Grant, 79 Mo. 113; State v. Harrison, 98 Mo. 426; State v. Heidorn, 74 Mo. 410; Keating v. Hyde, 23 Mo.App. 555; Creason v. Railroad, 17 Mo.App. 111; Young v. Railroad, 33 Mo.App. 514; State v. Roller, 77 Mo. 120, 129; Bartlett v. King, 7 Am. Dec. 99, 105; State v. Wes. Cem. Ass'n, 11 Mo.App. 570; Ins. Co. v. Hill, 12 Mo.App. 163; Negrotto v. City, 49 Mo.App. 286; State v. Daly, 49 Mo.App. 184. (4) The rights of defendant under the tax deed, and under the law as it stood when he paid his money and received his deed, can not be taken away by subsequent legislative action or repeal. Leete v. State Bank, 115 Mo. 184. (5) The right of entry and of action in this case accrued on February 20, 1877, while said special statute of limitation, of three years (Sec. 221, Act of 1872) was undoubtedly in force. Therefore such special statute must govern, so far as this case is concerned, whether it has been repealed or not. R. S. 1879, section 3252; Nelson v. Chariton Co., 60 Mo. 386; Pratt v. Canfield, 67 Mo. 52; School Directors v. Georges, 50 Mo. 194; McCartney v. Alderson, 54 Mo. 230; Wickerscham v. Woodbeck, 57 Mo. 59; Burch v. Winston, 57 Mo. 62; Abernathy v. Dennis, 49 Mo. 469; Railroad v. McGee, 75 Mo. 525; O'Neil v. St. Louis, 8 Mo.App. 416; Ins. Co. v. St. Louis, 98 Mo. 522; Billion v. Walsh, 46 Mo. 492. (6) The tax deed under which defendant claims is regular and valid upon its face. Bird v. Sellers 113 Mo. 580. It was placed upon record February 20, 1877. This action was not commenced until June 29, 1889, more than twelve years after the recording of said tax deed. At the time the tax deed was recorded, and at the time defendant took actual possession of the land (May, 1885), it was wild, unoccupied and unimproved, and had never been in the actual possession of plaintiff or her grantors, or of anyone else. Therefore, at the time of the commencement of this suit, defendant and his grantor had been for more than twelve years subject to plaintiff's action of ejectment, by reason of the provisions of section 222 of the Act of 1872, now section 7698, Revised Statutes, 1889, and this action was therefore barred by the general statute of limitations. Act 1872, section 222 (R. S. 1889, sec. 7698); R. S. 1889, sec. 6774; Allen v. White, 98 Mo. 55; Callahan v. Davis, 90 Mo. 84; Hill v. Atterbury, 88 Mo. 114; Gray v. Yates, 67 Mo. 602; Mason v. Crowder, 85 Mo. 56; Robinson v. Ware, 94 Mo. 687; Hopkins v. Scott, 86 Mo. 140; Lewis v. Disher, 32 Wis. 504; R. S. (Wisconsin, 1878), secs. 1187 to 1190; Cunnison v. Hahne, 18 Wis. 281; Warren v. Putman, 63 Wis. 410; Lawrence v. Kenry, 32 Wis. 281. (6) A plaintiff's cause of action is barred whenever the statutory period has elapsed from the time within which he might have brought his action, and the recording of the tax deed put the general statute of limitations in motion. Hintrager v. Frank, 27 N.W. 807; Ball v. Railroad, 16 N.W. 592; La Rue v. King, 37 N.W. 374; Bradley v. Cole, 25 N.W. 851, see note 30; Inues v. Drexel, 43 N.W. 201; Degette v. Sheldon, 44 N.W. 30; Douglas v. Boyle, 22 P. 316; Parker v. Matheson, 32 N.W. 598.

George W. Shoemaker and Lewis & Ramsay for respondent.

(1) Appellant's first point that the judgment is excessive, is not well taken, for the following reasons: First. If it be true that the judgment is excessive, the question ought to have been raised in the motion for a new trial or in some manner in the court below, as such an error, if it existed, would doubtless have been corrected there. Blanton v. Dold, 109 Mo. 64; Spotts v. Railroad, 111 Mo. 380; St. Louis v. Sieferer, 111 Mo. 662. Second. The prayer is for $ 100 damages, rents at $ 5 per month for monthly values and "for other proper relief," so that any relief consistent with the pleadings and evidence could be granted under the code of civil procedure. Kerr v. Simmons, 82 Mo. 275; Sharkey v. Dermott, 91 Mo. 647; Baker v. Railroad, 34 Mo.App. 98; State to use v. Adler, 97 Mo. 413. Third. The petition charges that the damages at the time petition was filed, June 27, 1889, were $ 100, and that the monthly value of the rents and profit was $ 5; this counted down to date of judgment, December 18, 1893, would run the damages claimed from $ 100 up to about $ 360, so that the judgment is less than the amount stated in the petition. The statute provides for including the monthly values to date of trial in with the damages. Revised Statutes, 1889, section 4638. (2) The three years' statute of limitations, section 221 of revised laws, 1872, was repealed in the revision of 1879, before the expiration of three years from the filing of the tax deed. Revised Statutes, 1879, Section 3160; Blodgett v. Schaffer, 94 Mo. 672; Bird v. Sellers, 113 Mo. 580; Butler v. Saline Co., 108 Mo. 630. This case holds that a section authorizing employment of assistant counsel by county court, having been omitted in revision of 1879, is repealed under provisions of section 3160. Revisions are required by the constitution of the state. Const., art. 4, sec. 41. So, too, irrespective of section 3160, the revision of the whole subject-matter of a law, as was done in this case with the revenue law, amounted to a repeal of the parts of the old law omitted. See revenue laws contained in the revision of 1879, which omitted section 221, and retained its companion, 222; this was evidently done on purpose. State v. Heidorn, 74 Mo. 410; State v. Roller, 77 Mo. 120. Such a revision will even repeal the common law. Young v. Railroad, 33 Mo.App. 514. The revenue law of 1872 was a general law, as much so as that contained in the revision of 1879, and the numerous authorities cited by appellant under point 2, showing the effect of general upon special statutes have no application in this case. (3) The repeal of the special three years' statute, section 221 was its annihilation, and nothing else took its place; it is the same as though it had never existed. Butler v. Pamler, 1 Hill (N. Y.) 15; Green v. Collins, 3 Clifford, 494; Myers Fed. Rep., Volume 8, page 70; State to use v. Heenan, 70 Mo. 441. (4) Section 222 of the act of 1872, new section, 7698, statute of 1889, is not in any sense a limitation law, but is in the light of privilege to the real owner. Bird v. Sellers, 113 Mo. 580. The only limitation law applicable to lands is the one requiring ten years, actual adverse possession of the whole tract or of some part under color of title to the whole. Revised Statutes, 1889, sections 6764, 6768. The uniform construction of this statute both in England and America requires an actual, open and notorious adverse possession. Bowman v. Lee, 48 Mo. 335; Crispen v. Hannavan, 50 Mo. 536; Bradley v. West, 60 Mo. 33; Lynch v. Williams, 68 Mo. 360; Mabary v. Dollarhide, 98 Mo. 198; Pepper v. O'Dowell, 39 Wis. 538; Gray v. Jones, 14 F. 83. (5) All the points raised by appellant in this appeal were raised by him on the other appeal, and were passed upon and considered by this court, and the court below did not err in trying the case in accordance with the requirements of the opinion of this court. The matter is res adjudicata, and not now open to further consideration. Hombs v. Corbin, 34 Mo.App. 393; Overall v. Ellis, 38 Mo. 209; Bank v. Taylor, 62 Mo. 338; Conroy v. Iron Works, 75 Mo. 651; Lancaster v. Elliott, 42 Mo.App. 503; Hayden v. Grillo's Adm'r, 42 Mo.App. 1; Southwest Lead Co. v. Ins. Co., 41 Mo.App. 406; Kieth v. Kieth, 109 Mo. 130. For the points involved in the other case we refer to that case. Bird v. Sellers, 113 Mo. 580, and the briefs and motion for rehearing filed therein.

Brace, J. Barclay, J., concurs fully in the foregoing opinion, but refers to his remarks in Spohn v. Railroad, ante, p. 22 as indicating his view as to the disposition to be made of the present case.

OPINION

Brace, J.

This is an action in ejectment for the recovery of forty acres of land in Gentry county. The case has been here before and is reported in 113 Mo. 580, 21 S.W. 91. It is admitted that the legal title is in plaintiff unless it has been divested by the tax deed set out in the opinion on the former appeal under...