Daniel v. McLucas

• Decision Date: 01 January 1899
• Docket Number: 374
• Citation: 55 P. 680,8 Kan.App. 299
• Parties: TAMAR DANIEL v. JOHN MCLUCAS
• Court: Kansas Court of Appeals

55 P. 680

8 Kan.App. 299

TAMAR DANIEL v. JOHN MCLUCAS

No. 374

Court of Appeals of Kansas, Northern Department

January 1, 1899

Opinion Filed January 4, 1899.

Error from Jefferson district court; Louis A. MYERS, judge. Affirmed.

Judgment affirmed.

Jetmore & Jetmore, for plaintiff in error.

Waters & Waters, for defendant in error.

OPINION

WELLS J.:

The only material question in this case is, Where personal property is lost or stolen and sold by the finder or thief to an innocent purchaser, who takes and retains open, notorious and exclusive possession thereof for more than two years before the owner learns of its whereabouts, is the owner then barred by the statute of limitations from recovering the same? The justice of the peace before whom the case was originally tried held that the owner was barred by the statute. The district court, where the case was taken on appeal, held that he was not barred, and we are asked to reverse this latter decision.

We are referred to the case of Robbins v. Sackett, 23 Kan 301, as authority to sustain the proposition that two years' possession of personal property invests the holder with a good title thereto. This does not necessarily follow from that decision. In that case the other party knew of the possession, and under such circumstances it was held that the statute had made the property hers. This decision was followed under substantially the same state of facts in Carter v. Pratt, 23 Kan. 613. In Lane v. Bank, 6 Kan. 74, it was held that, under the section of the statute excluding the time the defendant was absent from the state from the operation of the law, said time should not be counted in computing the time the cause of action had run. These are all the Kansas cases cited by either party as bearing on the question at issue and they shed but little light thereon.

In Duryea v. Andrews et al., 12 N.Y.S. 42, the court held:

"A horse stolen from plaintiff, the owner, came into possession of defendants, who retained it for several years, when plaintiff, on being informed that they had it, demanded it from them. Held, that the statutory limitation did not begin to run against an action by him against them for conversion until such demand; the possession until the demand was, in contemplation of law, in plaintiff as the legal owner."

This case is exactly in point, and if the conclusion is arrived at through the logical application of legal principles it would seem to be controlling. The opinion in the case was based on the proposition that "the horse having...