Fairbanks v. Long
| Decision Date | 16 May 1887 |
| Citation | 4 S.W. 499,91 Mo. 628 |
| Parties | Fairbanks et al., Plaintiffs in Error, v. Long et al |
| Court | Missouri Supreme Court |
Error to Chariton Circuit Court. -- Hon. G. D. Burgess, Judge.
Affirmed.
C Hammond and A. W. Mullins for plaintiffs in error.
(1) The testimony established plaintiffs' title, and that the suit was commenced in time to avoid the bar of the two years statute of limitations, except as to one of the plaintiffs. (2) The declarations of law given by the court show that on the question of title, the finding was for plaintiffs, but their recovery was barred by the nonpayment of taxes, and by defendants' adverse possession under the provisions of the act of the legislature of February 27, 1874, now Revised Statutes, section 3225. The act named is not applicable under the pleadings and proof, and plaintiffs' declaration of law number three, refused by the court, should have been given. Rollins v. McIntyre, 87 Mo. 497. (3) Conceding said act is applicable to the facts of this case the evidence shows that all the plaintiffs, except one, were under legal disability. (4) The act is only applicable to equitable titles.
Kinley & Wallace and H. Lander for defendants in error.
(1) A general demand is sufficient to enable the defendant in ejectment to avail himself of the statute of limitations. Campbell v. Gas Co., 84 Mo. 368; Nelson v Brodhack, 44 Mo. 596. (2) The defendants' first declaration of law, given by the court, was not erroneous; the evidence brought the case within the act of 1874. (3) If said declaration is erroneous, still plaintiffs cannot complain, because they adopted the same theory in the fourth declaration given by the court at their instance. Smith v. Culligan, 74 Mo. 387; Noble v. Blount, 77 Mo. 242; Leabo v. Goode, 67 Mo. 126; Holmes v. Braidwood, 82 Mo. 610. Both parties tried the case below, as indicated by the record in the case, on the theory that the thirty years named in the statute meant the thirty years "last past" and not the thirty years next before the passage of the act of 1874. By this theory they are bound. Whetstone v. Shaw, 70 Mo. 575; Walker v. Owen, 79 Mo. 563; Holmes v. Braidwood, 82 Mo. 617. (4) As to the point made by plaintiffs, that plaintiffs labored under disabilities and are, therefore, excepted from the operation of the act of 1874, defendants say: The settled rule is, that the statute of limitations will run against all persons not expressly excepted. Angell on Lim. 196; Bucklin v. Ford, 5 Barb. 393. When the statute makes no exception, the courts can make none on either equitable or reasonable grounds. Bickford v. Wade, 17 Vesey, 87; Dupliex v. DeRoven, 2 Vern. 540; Hall v. Wybourn, 2 Salk. 420. (5) The act of 1874 is applicable where the legal title had passed from the government more than ten years before the passage of the act. Mansfield v. Pollock, 74 Mo. 185; Rollins v. McIntire, 87 Mo. 497.
This is an action of ejectment to recover the southwest quarter of section 22, township 56, range 21, in the county of Chariton, The petition, in the usual form, was filed January 31, 1882; the answer of defendants, David and Elizabeth Ballew, was a general denial. Defendant, Long, filed a separate answer, and, in addition to a general denial, alleged that the land sued for was "military bounty land," and set up the two years statute of limitations, and for a further defence alleged "that he and those under whom he claims have been in the actual possession of the premises in question for many years before the commencement of this suit, and that said premises have not been in the possession of the plaintiffs, or of any one under whom they claim, for more than thirty years next before the commencement of this suit, and that the plaintiffs, nor any of them, nor any one under whom they or either of them claim, have paid no taxes on said premises for more than thirty years, next before the commencement of this suit, nor at any other time." The case was tried by the court without a jury; finding and judgment for the defendant, and brought here by plaintiffs by writ of error.
The errors assigned are: The refusal of the court to give plaintiffs' declarations of law numbered three and five, and the giving of defendants' declarations, numbered one, two, three, and four. It is conceded that the right of action of all the plaintiffs was not barred by the two years statute, and the finding of the court was upon the theory that plaintiffs' recovery was barred by section 1 of the statute of February 27, 1874. Laws of 1874, p. 118; R. S., sec. 3225.
The point made, that no issue, under that statute, was raised by the pleadings, owing to the insufficiency of Long's special plea, is not well taken, for, by the express terms of that act, in a case coming within its provisions, the claimant's recovery is not only barred, but his right and title is ipso facto, vested in the possessor; and, even if it were not so provided, it is well-settled law, in this state, that, in ejectment, it is not necessary to plead specially the statute of limitations. It operates upon the right and vests title, and the facts, to confer title, may be given in evidence, under the general issue. Nelson v. Brodhack, 44 Mo. 596; Fulkerson v. Mitchell, 82 Mo. 13, and cas. cit.
There was no evidence to support plaintiffs' declaration number five, and, consequently, no error in its refusal. Defendants' declaration number three was upon the two years statute of limitations, and numbers two and four are unexceptionable, and the objections to them are not insisted upon, so that, for the determination of this cause, it will only be necessary to consider declaration number one, given for the defendant, and plaintiffs' declaration number three, refused.
The court, by its action on these last two declarations, in effect, declared the law to be, that if it appeared from the evidence that the defendants were in the actual possession of the premises in question, before and at the time of the commencement of the suit, in good faith claiming title thereto, and that neither the plaintiffs, nor any of them, nor any one under whom they claim, were ever in possession of said premises, or ever paid taxes on said premises, for the period of thirty years last past, then the defendants' possession was within the protecting provisions of section 1 of the act of February 27, 1874 (Laws, p. 118). That section reads as follows:
"Any person claiming any real estate in the lawful possession of another, and which has not been in possession of such claimant, or any one under whom he claims, for thirty consecutive years, and on which neither he, nor those under whom he claims, has paid any taxes for all that period of time, and the equitable title to which has emanated from the government more than ten years, shall, within one year from the approval of this act, bring his action to recover the same, and, in default thereof, he shall be forever barred, and his right and title shall, ipso facto, vest in such possessor."
Under the construction placed upon this act in Rollins v. McIntire, 87 Mo. 496, "the thirty years next preceding the date of the act is the period contemplated by the act, * * * and the claimant, at the date of the act, and his predecessors in the chain of title under which he claims, within said period of thirty years, as well as the person in actual possession at that date, are the parties contemplated by the act." With this instruction, so far as it goes, no fault can be found. The operation of the act depends upon these five concurring conditions:
(1) The premises must not have been in the possession of the claimant, nor of any person under whom he claims, for thirty consecutive years next preceding the twenty-seventh of February, 1874, and no taxes must have been paid thereon for all that period of time, either by the claimant or those under whom he claims.
(2) The claimant must have failed to bring his action within one year after that date.
(3) The equitable title must have emanated from the government more than ten years prior to that date.
(4) The possessor must have been in lawful possession at that date.
(5) His possession must have been continued during the whole of the year immediately succeeding that date.
In the light of this construction of the statute, the theory upon which this case was tried is erroneous, as, under the law, as declared by the court, in order to defeat plaintiffs'...
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