Neilson v. Cnty. of Chariton

• Decision Date: 31 May 1875
• Parties: WILLIAM M. NEILSON, Appellant, v. THE COUNTY OF CHARITON, et al., Respondents.
• Court: Missouri Supreme Court

60 Mo. 386

WILLIAM M. NEILSON, Appellant,

v.THE COUNTY OF CHARITON, et al., Respondents.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Chariton Common Pleas.

A. S. Harris, with C. & R. W. Hammond, for Appellant.

I. The two years limitation in § 1, art. 2 of the Limitation Law, Wagn. Stat., 915, does not apply in this case. That section did not go into effect until August 1st, 1866, and plaintiff's right of action accrued in June, 1865. The limitation law, then in force, was that of ten years. (See § 32, art. 2, supra. (Billion vs. Walsh, 46 Mo., 495; Gilker vs. Brown, 47 Mo., 110, 111; McCartney, Adm'r, vs. Alderson, 54 Mo., 324)

In New York where the limitation in force at the time the right of action accrued was repealed, and a shorter limitation adopted, it is held that the limitation in force when the right of action accrued applies. (Van Hook vs. Whitlock, 3 Paige, 416, 417; People vs. Supervisors, 10 Wend., 365; Jackson vs. Brooks, 14 Wend., 654; Champlain vs. Valentine, 19 Barb., 488.)

II. Without any such saving clause as that of § 32, the two years' limitation would not apply here, because statutes are always held to be prospective only, unless they cannot have the intended operation by any other than a retrospective construction, or are plainly expressed to be retrospective. (People vs. Supervisors, supra; Ang. Lim., 2 Ed., 18, § 11.) Moreover, in this State, the legislature is forbidden to pass retrospective laws. (State Const., Art. I, § 28.)

The case of Callaway vs. Nolley (31 Mo., 393), does not apply. The Limitation Act of 1847 had no provision like that of § 32, above referred to.

A. W. Mullins, with C. W. Bell, for Respondents.

I. Plaintiff's action was barred. (Wagn. Stat., 915, § 1; Billion vs. Walsh, 46 Mo., 492; City of Carondelet vs. Simon, 37 Mo., 408; Callaway County vs. Nolley, 31 Mo., 393.) As to a bar by limitation, equity follows the law.

SHERWOOD, Judge, delivered the opinion of the court.

The material facts of this case are these:

In 1857, F. W. Hoffman conveyed the property in controversy (a lot in the city of Brunswick), to A. M. Day, subject to a mortgage to Chariton county, executed by Hoffman in 1854. In 1859, Day conveyed to A. D. Day, who, in 1860, executed a deed of trust to one Barr, and in the same year the plaintiff became the purchaser of the property in dispute at a sale made under the last named deed.

In 1865, a sale took place by virtue of the mortgage made in 1854, to the county, and Frederick Passe, the father of the minor defendants, bought thereat, and entered into possession, which is still retained by those claiming under him.

The court below dismissed plaintiff's petition, holding that though the sale made under the mortgage in 1865, was void, yet that the lot in question being a part of the military bounty land tract, and the action not being brought within two years after adverse possession taken by Frederick Passe, deceased, the statutory bar was available as a defense, which precluded any otherwise existent right of plaintiff to redeem.

I. The provisions of the act in relation to lands of the character in controversy never went into effect until August 1st, 1866. (Gen. Stat., 1866, p. 745, § 1; Id., 882, § 2.)

Plaintiff's right accrued in 1865, at a time when ten years was the period provided as a statutory bar, by the “ laws then in force.” Consequently, § 32 of the same chapter (ch. 191, G. S., p. 749) is applicable to the case before us; and as the plaintiff's suit was brought in 1873, he was not barred of his action. (Abernathy vs. Dennis, 49 Mo., 468; School Directors vs. Georges, 50 Mo., 194; McCartney vs. Alderson, 54 Mo., 320.)

II. The deed made by Barr, the trustee, although somewhat informal, sufficiently referred to the...