Embree v. Patrick

• Decision Date: 31 October 1880
• Citation: 72 Mo. 173
• Parties: EMBREE et al., Appellants, v. PATRICK.
• Court: Missouri Supreme Court

72 Mo. 173

EMBREE et al., Appellants,

v.PATRICK.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Randolph Circuit Court.--HON. G. H. BURCKHARTT, Judge.

AFFIRMED.

T. B. Kimbrough for appellants.

Martin & Priest for respondents.

NAPTON, J.

This suit was brought in 1877. Its object was to have a deed declared void, as a cloud upon plaintiffs' title, made in 1851, twenty-six years before the commencement of the action. A demurrer was filed by defendants and sustained by the court. The plaintiff is a grand-child of one Kirkpatrick, who died in 1847, and whose administrator made the deed in question to his widow. The mother of the plaintiff was a minor at the date of the deed, and married during her minority and died during minority, leaving one child, who is the present plaintiff. Whether her husband, one Owens, survived her, is not stated. It is held in Dyer v. Brannock, 66 Mo. 422, that the tenancy by courtesy of the husband stopped the running of the statute of limitations, but in this petition it is not said whether the husband of Virginia Kirkpatrick, the mother of the plaintiff, is alive yet, or dead. If he is still living, it is obvious that the plaintiffs have no right of action, and if he died before his wife, it is plain they have none, as the twenty-six years never interrupted, would be a bar. If he survived his wife, the action is not necessarily barred, unless he is still living. How the facts are is not stated in the petition. The plaintiffs may have a good cause of action, or they may not. It is certainly the business of a plaintiff to state facts sufficient to show a cause of action. In this case it is impossible to say whether she has a good cause of action or not. It does not appear that she has no cause of action, nor does it appear that she has. The judgment on the demurrer is, therefore, affirmed.