Paddleford v. Dunn

• Decision Date: 31 March 1851
• Citation: 14 Mo. 517
• Parties: PADDLEFORD v. DUNN
• Court: Missouri Supreme Court

14 Mo. 517

PADDLEFORD

v.DUNN

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

On March 6, 1849, Dunn filed his plea in ejectment, against the plaintiff in error, in the St. Louis Circuit Court, to recover possession of the north subdivision of fractional block No. 94, containing four and thirteen-hundredth acres, according to DeWard's survey of the St. Louis common. The plaintiff offered, in evidence, to maintain his right to the possession--1st. The record and proceedings before the United States recorder of land titles. 2nd. Copy of Mackay's survey of said common. 3rd. Copy of United States survey of said common. 4th. A deed from the city of St. Louis to said plaintiff, dated 14th September, 1843.

A witness for plaintiff testified, that demand for possession was served for the plaintiff upon the defendant below, on 1st March, 1849, and that the plaintiff in error then claimed the property by right of possession for twenty years, by herself and one Michau under whom he claimed. It was also proved that said lot was sold by the city in 1836 to one Craft, and was by him forfeited for non-payment of rent, and was claimed by the city, and said lot was within the exterior limits of the common as described in the survey above mentioned, and that the deed from the city to Dunn was executed by the officers by whom it purported to be signed. One of the plaintiff's witnesses also testified to the actual possession of said lot by defendant below, prior to March, 1849.

The plaintiff also read in evidence the acts of Congress of 13th June, 1812; act 26th May, 1824; act 27th June, 1831; acts General Assembly of Mo. 18th March, 1835, and 18th January, 1837. The defendant then gave in evidence the deed of the city to Horace Wilcox, dated March 11, 1836, recorded 15th January, 1838. Evidence was also given tending to show that Michau entered on the lot adjoining the one in dispute, on the south, in 1825 or 1826, and continued for many years to reside thereon, and while so residing thereon enclosed about one-half of the lot in controversy, and continued in possession of it until Wilcox took possession under the deed in 1836, when he (Wilcox) extended the inclosure so as to include the whole lot in controversy. Wilcox died in 1837 or 1838, and on his death the defendant, Paddleford came into possession of the lot in dispute, and has ever since remained in possession. Defendant, (P.) also gave evidence tending to show that neither the city of St. Louis nor the plaintiff had ever been in possession of the premises in controversy, or any part thereof within ten years next before the commencement of this suit. The plaintiff then gave in evidence a joint resolution of the city council of St. Louis, approved February 6, 1841 (read by agreement from the printed edition of the ordinances). Also, evidence tending to prove that the collector of the city of St. Louis had made repeated demands on Wilcox for the annual rents, but had been refused, and that no rent had been paid by Wilcox under that deed, and this demand and refusal to pay was reported to the city council.

It is agreed that the preliminary steps taken by the city prior to said two deeds to plaintiff and defendant, were correct, excepting all the action of the city concerning the alleged forfeiture or defeat of Wilcox's title, all of which questions are left open.

The court, at the request of the plaintiff below, gave the jury this instruction: If the jury find the premises in dispute to lie within the bounds of the St. Louis common, as confirmed by the acts of 1812 and 1831, and that the deed given in evidence by the plaintiff from the city of St. Louis to him was executed and delivered bona fide for the consideration, and in the manner therein expressed, then the title granted by said acts to said premises enures to the plaintiff. To which the defendant excepted at the time.

The court also gave instructions for the defendant, to the effect that if the defendant was in possession under Michau and the possession of Michau and himself had continued for over twenty years prior to the commencement of this suit, undisputed and adverse, then the jury would find for defendant; also, as to what constituted adverse possession, to which no exception was taken.

The defendant below also asked, but the court refused, the following instructions: 1. If the city of St. Louis by deed dated the 11th day of March, 1836, conveyed the premises in question to Horace Wilcox, as set forth in the deed from said city to said Wilcox, as given in evidence by the defendant, the jury will find for the defendant. 2. The joint resolution of the city council of St Louis, as read in evidence by the plaintiff, approved February 6, 1841, were inoperative to divert the tile of Wilcox as acquired by the deed to him from the city of St. Louis, dated March 11, 1836; and if the last named deed was a genuine conveyance, the jury will find for the defendant. 3. Unless the plaintiff, his grantor, predecessor or ancestor, or other persons under whom he claims, was seized or possessed of the premises in question within ten years before the commencement of this suit, the jury will find for the defendant. Excepted to at the time. The jury found for the plaintiff. The usual motion for a new trial was subsequently filed and overruled, and exceptions taken, and the case comes to this court by appeal.

CROCKETT & KASSON, for Appellant. 1. The plaintiff was barred by the statute of limitation of 1847, approved February 2nd, and which took effect from its passage. It is entitled, “An act to quiet vexatious Land litigations,” and declares (§ 1) “no action at law or suit in equity, for the recovery of any lands, tenements or hereditaments, or for the recovery of the possession thereof, shall be commenced, had, or maintained by any person, whether citizen, denizen, or alien, resident or non-resident of this State, unless it appear that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims, was seized or possessed of the premises in question, within ten years before the commencement of such action or suit.” The case here shows that the plaintiff, and those under whom he claims, had not been in possession for more than ten years before the time of bringing suit. The defendant asked an instruction precisely within the terms of the statute above recited, and the court refused it. This is here assigned for error. This suit was commenced March 6, 1849, more than two years after the act took effect, and is therefore, plainly within its provisions. It does not apply to suits commenced before its passage, but does apply to all suits commenced after. 2. The terms of the law being expressly applicable to this suit, and the instructions asked and refused being strictly within its provisions, the refusal to give it can only be supported on the ground, that--1st. The law is contrary to the Constitution of the Uuited States, which declares that no State shall “pass any * * * ex-post facto law, nor law inpairing the obligation of contracts,” art. 1, § 10: or, that--2nd. The law is contrary to the Constitution of Missouri which declares “““no ex-post facto law, nor law impairing the obligation of contracts; or retrospective in its operation, can be passed.” Art. 1, § 17.

The first ground is involved in the 2nd, inasmuch as the State Constitution has adopted the exact prohibitions of the United States Constitution, and it will not be contended that they are there used in any different sense. Let us examine these express prohibitions in their order: 1st. An ex-post factolaw. This applies solely to punishments of past acts, not punishable at the time they were committed, to crimes, pains and penalties. This has been solemnly and repeatedly decided. Calder v. Bull, 3 Dall R. 386 (1 Cond. § 1); Fletcher v. Peck, 6 Cranch, 87 (2 Cond. 308); Bennett v. Boggs, 1 Bald. C. C. R. 74; Watson v. Mercer, 8 Peters, 88. 2nd. It will hardly be pretended that this is a law impairing the obligation of contracts. No contract is in the case, and none is touched by the law. Crawford v. Bank of Mobile, 7 How. U. S. R. 279. Even divesting down (incepted) before the death of the intestate, was held valid. Lawrence v. Miller, 1 Sandf. Sup. C. R. (N. Y.), 516; Jackson v. Lamphire, 3 Peters, 280. 3rd. Is the law in question ““retrospective in its operation,” within the meaning of the Constitution? We answer, no! It is expressly prospective in its action, applying to future actions, and not to past suits. Its “operation” is on the remedy alone, and that operation is prospective entirely. Samfeyreae & Stewart v. United States, 7 Peters, 239; McCluney v. Silliman, 3 Peters, 278 (especially last clause); Davis v. Ballou, 1 J. J. Marsh. 573 and following. The title shows the purpose of the statute to be, to touch all those cases of speculative rights, and dubious claims, upon which a plaintiff sleeps for ten years, and works only to vex honest occupants and improvers of the land. And the party here continued his sleep two years after the statute was passed. In Samfeyreae's case, 7 Peters, 239, the court say, speaking of laws affecting remedies: “It has been repeatedly decided in this court, that the retrospective operation of such a law forms no objection to it. Almost every law, providing a new remedy, affects and operates upon causes of action existing at the...