McIlhinney v. Ficke

• Decision Date: 31 October 1875
• Parties: ALEXANDER MCILHINNEY, Plaintiff in Error, v. JNO. F. FICKE, Defendant in Error.
• Court: Missouri Supreme Court

61 Mo. 329

ALEXANDER MCILHINNEY, Plaintiff in Error,

v.JNO. F. FICKE, Defendant in Error.

Supreme Court of Missouri.

October Term, 1875.

Error to Franklin County Circuit Court.

P. E. Bland, for Plaintiff in Error, cited Gibson v. Chouteau, 13 Wal., 92, and Langdon vs. Haws, 21 Wal., 521.

NAPTON, Judge, delivered the opinion of the court.

This action was brought in 1873. The title is the same as that mentioned in the case of Ann E. Miller and others vs. Bledsoe, but the question presented on the statute of limitations is materially different.

The re-location authorized by the act of the 4th of July, 1836, was made in September, 1847. At this time Mrs. Tippett, one of the heirs of Richard Caulk, was a feme covert. She was married in 1836 and her husband died in 1870, and the plaintiff bought her interest in 1871, and then brought this action. Mrs. Tippett's interest in the estate of her father, R. Caulk, was one-sixth.

The entry of the land in controversy was made then in 1847, but the patent did not issue till 1856. The defendant's possession commenced in 1848, under a deed from Alton Long, whose wife was another heir of Caulk, and who seems to have been authorized or supposed himself authorized to convey all the re-location made under certificate No. 35.

The court instructed the jury that “although the legal title to the land in controversy, was not completed or perfected in the legal representatives of Richard Caulk until the issuance of the patent, June 3, 1856, yet the equitable title to and the right of entry upon said lands was in said representatives upon the location and entry under certificate of re-location No. 35, dated the 9th of September, 1847; and if they find that the plaintiff, or those under whom he claims, failed to enter on said lands or to commence an action for their recovery within 24 years next after said right of action accrucd to them, the plaintiff is not entitled to bring this action, and the jury will find for the defendant.”

And the propriety of the instruction presents the only point in this case. There was, of course, a verdict for defendant, as more than 24 years had elapsed since the entry, but not since the patent, which issued about 10 years after the entry.

Our statute declares that no action for the recovery of lands etc., shall be commenced, had or maintained by any person, laboring under the disabilities of coverture, infancy, insanity, etc., after 24 years after the cause of such action or right of entry shall have accrued. (Wagn. Stat., 916.)

The statute in regard to suits for real property is now what it has been since the organization of this State. It provides (Wagn. Stat., 558), that action in ejectment may be maintained, first, on an entry or bounty land warrant located with the register or receiver of any land office of the United States, or with the Commissioner of the General Land Office, or second, an entry with the register and receiver of any land office in this State; or third, a pre-emption right under the laws of the...