Smith v. Newby

• Decision Date: 31 January 1850
• Parties: SMITH, ADM'R OF TAYLOR, v. NEWBY.
• Court: Missouri Supreme Court

13 Mo. 159

SMITH, ADM'R OF TAYLOR,

v.NEWBY.

Supreme Court of Missouri.

January Term, 1850.

APPEAL FROM PLATTE CIRCUIT COURT.

This was an action of detinue brought by the appellant against the appellee, to remove two negro boys, upon the following state of the case, as shown by the evidence on the trial. The deceased, William M. Taylor, in his lifetime, in York county, Virginia, owned a negro woman named Louisa. About the spring of 1841, this negro woman disappeared--supposed to have run away, and to have run away with a strange white man, who had been in the neighborhood, and who disappeared about the same time. In the month of March, 1841, one Burgess, a resident of Platte county, Missouri, and then on a visit to Kentucky, near the line which separates that State from Virginia, hearing that one Gowens, who was largely indebted to him, was just across the line, in Virginia, with a negro boy in his possession, determined to go and get the boy from Gowens, in the way of his demand, by the best means he could. He went across, found Gowens and the boy, and succeeded in inducing him to let him have the boy in the way of his indebtedness, at the extravagant price of $800. This took place from the 15th to the 20th March, 1841, not later than the 20th. Burgess immediately returned to Kentucky, and thence forthwith to Missouri, taking with him the negro. On his way to Missouri, he discovered the negro was a woman in man's clothing. After his return to Missouri, Burgess sold the negro woman to one Allen; Allen sold her to Tetherow, and he sold her to defendant. The two boys sued for are the children of Louisa, born after she came to Missouri. William M. Taylor died in Virginia about the last of February, 1846, and the plaintiff became his administrator in this State, 2nd April, 1847. Suit was commenced 8th April, 1847. It was testified that it was not known where said negroes were until after the death of Taylor.

Upon this state of facts, the appellant asked the following instructions: 1. If the jury believe from the evidence that the negro woman, Louisa, is the mother of the boys mentioned in the declaration, and that she was the property of William M. Taylor of Virginia, deceased, at the time of his death, and William Smith, the plaintiff, is his administrator with the will annexed, they will find for the plaintiff. 2. If they find for the plaintiff, they must find the value of each negro separately. 3. That unless Alexander Gowens, at the time he let Burgess have the negro woman, described in the evidence in this case, had good title derived from William M. Taylor, deceased, in his life-time, to said negro woman, then said Burgess, by his purchase from him, acquired no title by said purchase. 4. If the jury believe from the evidence, that the negro woman, Louisa, was stolen from William M. Taylor of Virginia, and knowledge of the fact that the negro was in Missouri did not come to Taylor, or his administrator, until five years before the bringing of the suit, they will find that the suit is brought in time to entitle the plaintiff to recover. 5. That the five years' possession by defendant, or those under whom defendant claims, which gives title under the statute of limitation, must be an adverse possession; and if the jury believe from the evidence, that the negro woman Louisa was, about the spring of 1841, stolen from William M. Taylor, deceased, in his life-time, and is the mother of the boys named in the declaration, then said statute of limitations cannot nor did not commence to run in this suit against said Taylor, or his administrator, until he had some knowledge or information of her being in possession of defendant or those under whom he claims.

The appellee asked the following instructions to-wit: That if the jury believe from the evidence, that the mother of the boys in the declaration, mentioned, before the birth of said boys, was purchased by one Burgess, in the month of March, 1841, and he sold to one Allen, and Allen, to one Tetherow, and he sold to defendant, and said woman and children, have been in possession of said persons, successively claiming them as their own for five years before said suit was brought, they will find for defendant, unless said Taylor died before the expiration of said five years; but if said Taylor died within said five years, then the action may have been brought after the expiration of said five years provided it was brought within one year after the death of said Taylor.

The defendant's and the first and second of plaintiffs were given by the court, the third, fourth and fifth of plaintiffe were refused. To the giving of defendant's and refusing plaintiffs, plaintiff excepted, Whereupon plaintiff took a non-suit, and filed his motion to set it aside, which was overruled. The grounds were two. 1. That the court erred in giving and refusing instructions. 2. The court erred in excluding from the jury evidence offered by plaintiff, of the reputation in the neighborhood as to the parentage of the boys sued for.

ALMOND & SPRATT, for Appellant. The first question presented by the record is, could defendant, under the evidence in this case, avail himself legitimately of the statute of limitations, as contained in the instruction given by the court at the instance of defendant, and which is based on the 6th section of article 2, of our statute of limitations. Rev. Code, 1845, p. 717. We contend that defendant could not; for although defendant's said instruction is based upon the abstract principles of law contained in said section (No. 6), still the testimony recited and preserved in the bill of exceptions, shows that the hypothesis contained in said instruction, and contemplated by said section, cannot and does not apply to the case at bar, for the following reasons

1. To have entitled defendant to have his said instruction, he ought to have shown a suitable case as presented by the evidence; and in determining whether defendant did show such suitable case, it is only necessary to look to the evidence as preserved, and also to look to all the sections of our said act of limitations applicable to said evidence, and by comparing the evidence in this case with said 6th section of 2nd article, and also with the 7th section of same article, and also with the 8th section of the 3rd article of said act, in connection with the 2nd section, 2nd article of said act, it will be seen that the two last named sections apply to the case as pointedly as the section first named, and should have prevented the court from giving defendant's said instruction. For whether the decision of our Supreme Court, in the case of King v. Lane, 7 Mo. R. 241, or the decision in 3 Johns. R. 263, is still the law or not, under our Revised Code of 1845, p. 717, § 7, before referred to (and it would seem that the reasoning in said decision is broad enough to embrace this case), still it is clear from the evidence that the very improper act of Burgess, in purchasing and removing the woman to Missouri, under whose possession, in part, defendant claims title to said negro boys, would and did prevent the statute of limitations from running in his favor, and in fact in favor of any one claiming under him.

2. From the evident meaning of said 7th section of 2nd article of our act of limitations aforesaid, the instruction given for the defendant is evidently too broad; for at the time the cause of action herein accrued against the said Burgess, he being resident of this State, was out of the State, and the limitation of five years, under our statute, which gives title, did not clearly commence running in his favor till his return to this State. The said instruction decides, that said statute commenced running from the time Burgess got possession of said negro woman, in favor of said Burgess and those claiming under him.

3. The cause of action herein, first accrued to Taylor, the deceased, in his life-time, who was a resident of Virginia, in the State of Virginia, against Gowens, who was in Virginia, and who was not a resident of Missouri; and the principles laid down in said decisions of King v. Lane, 7 Mo. R. 241, and in 3 Johns. 263, although said decisions were made under the act of 1825, here apply and would prevent the running of said statute of limitations against Taylor or his legal representatives until he or they should come to the State. Although the decision in King v. Lane was made under the act of 1825, which by its letter extends only to non-resident plaintiffs, still the spirit of said decision, and the reasoning of the court, therein, extends the doctrine to defendants, whether resident or non-resident, and seem to be applied by the court to the act of 1835, which is similar to our act of 1845, with this difference; that the act of 1845, confines its operations towards defendants, to thoso only, who are residents of this State. We are frank to admit, however, that our minds are not clear in reconciling the decision and its reasoning in King v. Lane with the respective acts of 1825, 1835 and 1845.

But the instruction of the court given for defendant is wrong in another point of view. That instruction assumes, that if the possession of Burgess, Allen, Tetherow and defendant put together, amounted to six years from its commencement to the beginning of this suit. then plaintiff could not recover. Now this position is incorrect; and unless Burgess or Tetherow, or defendant had the five years' possession required by our statute, to give title, then there is no pretense for pleading the statute of limitations. It is not contended that either Burgess or Allen or Tetherow, or defendant, separately, had that five years' possession, and plaintiff contends that defendant had no right to consolidate their possession in his favor. Perry's Administrator v. Pullam, 1 Haywood, 16; Elmore v. Mills, 1 Haywood, 359; Bishop v. Little. 3 Greenleaf; Maine R. 405.

5. But even admitting that the defendant had a rigin to consolidate...