State v. Logan

• Decision Date: 20 November 1916
• Docket Number: No. 1793.,1793.
• Parties: STATE ex rel. FEHRENBACH et al. v. LOGAN et al.
• Court: Missouri Court of Appeals

190 S.W. 75

195 Mo. App. 171

STATE ex rel. FEHRENBACH et al. v. LOGAN et al.

No. 1793.

Springfield Court of Appeals. Missouri.

November 20, 1916.

Rehearing Denied December 21, 1916.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by the State of Missouri, on the relation of William Fehrenbach and others, against Frank B. Logan and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

Wolfe & Burnett, of Joplin, for appellants. Gray & Gray, of Carthage, for respondents.

STURGIS, J.

This is an action on the official bond of the recorder of deeds of Jasper county, and is the sequence of the decision of this court in Wilkins v. Fehrenbach, 180 S. W. 22. We held in that case that a mortgage or deed of trust did not lose its force and priority as a lien against the real estate conveyed by reason of a wrongful release of the same on the margin of the record by one not owning the secured note and not producing and having such note canceled as required by section 2844, R. S. 1909, notwithstanding the recorder had permitted such release to be made and had certified that the secured note had been produced and canceled as the law directs. That suit was against the present relators as owners of the land, having purchased same by mesne conveyances from the maker of the deed of trust wrongfully released, and resulted in a judgment canceling the release and foreclosing the deed of trust. The opinion in that case conceded that defendants, relators here, purchased said land in good faith believing same to be clear of said incumbrance, which belief was induced by the wrongful and void release and certificate of the recorder. The present cause of action is predicated on the wrongful acts of the recorder in making such release.

A demurrer was sustained to relators' petition on the ground that on the facts stated the relators' cause of action is barred by the statute of limitations of three years contained in section 1890, R. S. 1909. It will be sufficient to say that the petition alleges that the wrongful marginal release and certificate thereto by the recorder was made December 31, 1910; that thereafter, in 1913, the relators in good faith, and relying on the fact that the records showed said land to be clear and free of said incumbrance, first loaned money on said land to the then record owner, and later, in March, 1914, became the owners of said land by purchase under foreclosure proceedings and deeds duly made and recorded; that, after unsuccessfully defending the suit of Wilkins v. Fehrenbach, supra, both in the circuit court and this court, whereby said released deed of trust was declared a valid lien against relators' said property, the relators were compelled to and did discharge the lien and judgment in the amount of $1,000, to their damage in that sum. The official bond of defendant as recorder, set forth in the petition, is conditioned that he will faithfully perform the duties enjoined by law as recorder, and the breach thereof is set forth thus:

"Plaintiffs further state that the said defendant Frank B. Logan has failed and neglected to perform the conditions of his said bond, in that he has not faithfully performed the duties enjoined on him by law as such recorder, in this, to wit: That on the 31st day of December 1910, the said Frank B. Logan negligently, carelessly, wrongfully, and against and in contravention of the statutes of the state of Missouri in such cases made and provided, permitted and allowed one Rose McSherry to satisfy of record in his said office a certain deed of trust [describing it] for the purpose of securing the payment of a certain promissory note in said deed of trust described, in the sum of $800, which said deed of trust had theretofore been duly and legally recorded in said office, in which said note said W. F. Shannon was the payee, without requiring the said W. F. Shannon or the said Rose McSherry, or any one for the said W. F. Shannon, to produce and cancel the said promissory note in the presence of him, the said recorder, and that said promissory note was not, and never has been, so produced and canceled. But plaintiffs state that said Frank B. Logan, as said recorder, at the time of permitting said Rose McSherry to enter satisfaction of said deed of trust on the record thereof in his said office, as aforesaid, wrongfully and falsely caused to be entered thereon the certificate of said recorder that the said note described in the said deed of trust was produced and canceled in the presence of said recorder."

It will thus be seen that the wrongful release of this deed of trust on which relators rightfully relied in purchasing this land as showing same free and clear of this incumbrance, and which they were afterwards compelled to pay, was made more than three years prior to such purchase and almost three years before relators had any interest in or dealing with such land. This suit was brought, however, within three years after relators first acquired an interest in said land, and within a few months after they were compelled to and did discharge such incumbrance.

Defendants' contention is that, since this suit was not instituted for more than three years after the wrongful act of the recorder was committed, the same is barred by the provisions of sections 1887 and 1890, R. S. 1909, as follows:

"Sec. 1887. Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued."

"Sec. 1890. Within three years: First, an action against a sheriff, coroner or other officer, upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty, including the nonpayment of money collected upon an execution or otherwise."

It will be seen that, according to defendants' contention, relators' cause of action was barred before it came into being; for certainly relators never had any cause of action prior to their having any dealings with or interest in this land. To so construe the statute is violative of the fundamental rule applicable to the construction of all limitation statutes, to wit: That the same begins to run only when the cause of action asserted accrued to the person asserting it, and it does not accrue in the legal sense until it comes into being and the parties benefited have a right to assert same in court. 25 Cyc. 1067. In refuting the idea that the statute of limitations could run against one before he is entitled to sue thereon, the Supreme Court, in Dyer v. Brannock, 66 Mo. 391, 422 (27 Am. Rep. 359) said:

"If the statute of limitations is construed to run against them from the death of the mother, it operated against parties who had no right of action, and who would have been trespassers had they undertaken to enter. Indeed, upon this construction of our statute, had the husband lived three years or more after the death of his wife, the title of the heirs would be totally destroyed, since they cannot sue during the continuance of the particular estate, and before its termination the three years from the death of the mother have gone by. * * * It is generally understood that the statute of limitations does not run against any one who has no right of possession. * * * The person barred by the statute is one whose right of entry has accrued, and who neglects to sue during the three years allowed after his right of action accrues."

In Dyer v. Wittler, 89 Mo. 81, 14 S. W. 518, 58 Am. Rep. 85, the court reaffirms this doctrine at pages 90 and 95. In Campbell v. Laclede Gas Co., 84 Mo. 352, 378, a majority of the Supreme Court took occasion to say that:

"A statute which deprives a married woman of her property for failing to sue for it in 24 years, when during all that time she had no right to the possession, and could not, therefore, maintain an action for such possession, is, in my judgment, plainly unconstitutional."

In Aachen Ins. Co. v. Morton, 156 Fed. 654, 84 C. C. A. 366, 15 L. R. A. (N. S.) 156, 13 Ann. Cas. 692, the court, through Justice Lurton, said:

"A right of action accrues whenever such a breach of duty * * * has occurred or such a wrong has been sustained as will give a right to then bring and sustain a suit."

Many decisions will be found asserting the doctrine that any statute of limitations will be so construed as not to bar an action until the statutory period has elapsed after the cause of action has come into substantial being and the party asserting it has a right to sue thereon.

In fact, the reading of the statute itself, section 1887, now in question, so asserts, since it says that civil actions not for the recovery of real estate can be commenced within the period prescribed in the following sections "after the cause of action shall have accrued." The cause of action here did not accrue — that is, come into being with some one capable of asserting it in court — till within three years before this suit was filed.

The defect with defendants' theory and argument is that they assume that the wrongful act of the recorder is synchronous with the injury to relators. They fail to observe the well-recognized distinction between actions founded on direct and certain injury following some wrongful or negligent act and those based on consequential and indirect damage flowing...