Collins v. Pease

• Decision Date: 15 November 1898
• Parties: COLLINS et al. v. PEASE et al.
• Court: Missouri Supreme Court

47 S.W. 925

146 Mo. 135

COLLINS et al. v. PEASE et al.

Supreme Court of Missouri, Division No. 1.

November 15, 1898.

LIMITATIONS — THIRTY YEARS — PLEADING — EQUITABLE TITLES — PERSONS UNDER DISABILITY — MEANING OF "LAWFUL POSSESSION."

1. The 30-year statute of limitations as to the recovery of real estate, contained in Rev. St. 1889, § 6770, need not be pleaded in ejectment, but may be given in evidence under the general issue.

2. The 30-year statute of limitations (Rev. St. 1889, § 6770) in regard to the recovery of real estate, the equitable title of which shall have emanated from the government more than 10 years before suit brought, also applies to cases where the legal title has emanated from the government.

3. Rev. St. 1889, § 6770, amending Laws 1874, p. 118, providing that 30 years' nonpossession and nonpayment of taxes on land shall be a bar to an action to recover the land, contains no saving clause in favor of persons under disability, and hence a court cannot make any exceptions in favor of such persons.

4. One is in "lawful possession" of property, so as to be able to rely on 30 years' nonpossession and nonpayment of taxes by plaintiff (Rev. St. 1889, § 6770) as a defense to an action to recover the property, where he has entered not as a mere trespasser, but in good faith, claiming to be the owner, notwithstanding he has not a perfect title.

Appeal from circuit court, Douglas county; W. N. Evans, Judge.

Ejectment by Harrison Collins and others against M. M. Pease and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

A. Burkhead and Thos. H. Musick, for appellants. A. H. Livingston, for respondents.

WILLIAMS, J.

This case was rightly decided for defendants by the circuit court. It is an ejectment. A patent issued in 1860 from the United States to George and Spencer Collins for the land in dispute. George died in 1860 or 1861; and Spencer, in 1864. Defendants are in possession. Plaintiffs are heirs of the patentees. This made for them a prima facie case. The defense relied on is the limitation of 30 years contained in section 6770 of the Revised Statutes of 1889. The testimony tended to prove that Solomon Collins, father of George and Spencer, was in possession of the land in 1860, when it was entered. He assigned to them a land warrant belonging to him, and it was located on this tract. It is said by some of the witnesses that this was done, and the patent issued in their name, because the father was financially embarrassed. He nevertheless remained in possession, and there is evidence showing that he openly asserted his ownership thereof. He went away during the war, and did not return to the land until a year or more after its close. The dates are not very definitely fixed in the record. He continued after he came back to use and claim the land as his own until 1879, when he sold it to C. E. Pease. The latter then went into possession, and held it, undisturbed by any adverse claim, until he sold to the defendants. They have had exclusive possession since their purchase. At the time of the death of Spencer and George Collins, they had two sisters, who were then married women, and have remained under coverture since. These sisters and their husbands in 1894 conveyed their undivided interest to plaintiff Harrison Collins, Jr. There was evidence to show, and the court so found and recited in its judgment, that plaintiffs had never been in possession of any part of the premises, nor had they ever paid any taxes thereon, but, on the contrary, that defendants and their grantors had been in exclusive possession and paid the taxes since 1860. The case was tried by the court without a jury. Plaintiffs asked nine declarations of law. All were refused. Several are based upon the disability of the married women mentioned, and undertake to construe the limitation of 24 years contained in the statute. Others lay down the rule to be applied as to adverse possession between tenants in common. None are predicated upon the act hereinafter referred to, making 30 years a bar, which in our opinion presents the only question in the case. It is plain, therefore, that we do not think error was committed in their refusal. The court, at defendants' instance, declared that if Solomon Collins was in possession of the land when it was entered in 1860, and he and his grantees have ever since remained in the open, exclusive, and notorious possession of the same, and have paid all taxes thereon since 1860, and George Collins died in 1860, and Spencer in 1863 or 1864, then plaintiffs could not prevail in the suit. The judgment, as above stated, was in favor of defendants, and plaintiffs appealed.

The limitation of 30 years set up by defendants as an absolute bar to plaintiffs' suit was first enacted in 1874, and appears...