Cnty. of St. Charles v. Powell

• Decision Date: 31 March 1856
• Citation: 22 Mo. 525
• Parties: COUNTY OF ST. CHARLES, Appellant, v. POWELL, Respondent.
• Court: Missouri Supreme Court

22 Mo. 525

COUNTY OF ST. CHARLES, Appellant,

v.POWELL, Respondent.

Supreme Court of Missouri.

March Term, 1856.

1. The rule of the common law, embodied in the maxim “ nullum tempus occurrit regi,” and adopted generally in this country, applies only to the state at large, and not to the political subdivisions thereof. The statute of limitations runs against the municipal corporations and other authorities established to manage the affairs of the political subdivisions of the state, as against private individuals. The immunity was at common law an attribute of sovereignty only.

2. The sums received by the several counties of this state out of the “road and canal fund” under the several acts of the general assembly, (see R. C. 1835, p. 553; Sess. Acts, 1836-7, p. 108-9,) belonged exclusively to the counties, though affected with a trust for local purposes; and the statute of limitations would run against the said counties on bonds executed in their favor by persons to whom portions of said fund had been loaned.

3. The fact that the obligor of such a bond becomes a judge of the county court, before the time of the limitation, ten years, expires, will not deprive him of the right to set up the statute as a bar to a recovery.

Appeal from St. Charles Circuit Court

This was a suit commenced April 19, 1855, founded upon the following obligation: “$175. Twelve months after date, we or either of us promise to pay to the County of St. Charles, one hundred and seventy-five dollars, to bear interest at the rate of ten per cent. per annum from date till paid, it being for that amount borrowed from the road and canal fund of said county. Witness our hands and seals this 5th day of February, 1841. [Signed] Ludwell E. Powell, (seal). T. Yosti, (seal). Wm. Echert, (seal).”

It was alleged in the petition that the defendant, Powell, was justice of the county court of St. Charles county, from 1850 to September, 1854, and as such, with his associates, had the control and management of all bonds, notes and evidences of debt due said county for the use of the road and canal fund.”

The defendant relied in his answer upon the statute of limitations.

Upon the trial, the bond above set out was proven and given in evidence; also an endorsement upon the same of a credit of $8 75, paid June 29th, 1842. It was also proven that Powell was elected justice of the county court of St. Charles county, in August, 1850, and was presiding justice of said court until September, 1854.

Upon this proof, the court gave judgment for the defendant on the ground that the debt was barred by the statute of limitations.

C. C. Whittelsey and T. Cunningham, for appellant.

1. The county of St. Charles holds the road and canal fund for the benefit of the state, and against the state the statute of limitations does not run. ““ Nullum tempus occurrit regi.” (Broom's Legal Maxims, 27; Parks v. State, 7 Mo. 194; Marion county v. Moffett, 15 Mo. 605; State v. Fleming, 19 Mo. 607; United States v. Kirkpatrick, 9 Wheat. 720; 15 Mo. 604; R. C. 1835, p. 554; 3 Statutes at large, 674.) 2. The defendant should not be permitted to avail himself of the time during which he was the justice of the county court. If any thing, its neglect should be considered as a presumptive new promise, as he had the authority and influence to stay suit. The payment was made in June, 1842, and ten years from that date would have given him the right of action until June, 1852, and for nearly two years after that time the defendant prevented suit, and the county should have that time to sue after he ceased to be a justice. The new county court ordered suit brought when they found the bond unpaid and still due. The principle should be applied that a trustee shall not avail himself of the statute while trustee. (Taylor v. Blair, 14 Mo. 437.) As a justice of the court, he should certainly be considered as placed in a position of trust, which should forbid his doing any thing to the injury of those with whose interests he stood charged. Upon these principles, therefore, the answer should have been overruled, and the issue should have been found for the plaintiff, and judgment given for the face of the bond, with interest.

J. Coalter and Alexander, for respondent. The two grounds on which it is supposed that the statute will not run in this case are, 1. That the note was given for the benefit of the road and canal fund, and that said fund belongs to the state, and therefore the note can not be barred. This is not true in point of fact; the fund has been distributed among the several counties of the state, with no provision that it shall ever, in any event, revert to the state. (R. C. 1835 and 1845, tit. “Road and Canal Fund.”) 2. The other point, that the statute will not run, because the defendant was from 1850 to 1854 justice of the county court, is equally untenable....