Walker v. Bacon

• Decision Date: 31 March 1862
• Citation: 32 Mo. 144
• Parties: JOHN WALKER et al., Appellants, v. CHARLES E. BACON et al., Respondents.
• Court: Missouri Supreme Court

32 Mo. 144

JOHN WALKER et al., Appellants,

v.CHARLES E. BACON et al., Respondents.

Supreme Court of Missouri.

March Term, 1862.

Appeal from St. Louis Land Court.

Plaintiffs by amended petition alleged in substance, that on the 1st June, 1853, they were entitled to the possession of four hundred and eighty arpens, in Bonhomme township, St. Louis county, on the southern shore of the Missouri river, being the same conveyed by Alexander McCourtney and wife to John McCourtney, and recorded in Book E, page 35, of St. Louis county records; that on the 30th March, 1829, John McCourtney, being still the legal owner and entitled to the possession of said premises, conveyed, through the sheriff of St. Louis county, by sale, under execution against said John McCourtney, to Josiah Spalding, by deed duly acknowledged and recorded; and afterwards, on the 28th October, 1829, by duly acknowledged and recorded deed, said Spalding and wife conveyed said premises to Thomas Sloan, one of plaintiffs, and to Soloman G. Krepps, the ancestor of the other plaintiff, as tenants in common, whereby they became entitled to the possession of said land; and defendants on the 10th June, 1853, entered into said premises, and claimed to hold them under one Martin McCourtney, deceased, formerly husband of defendant, Ann McCourtney, and lessor of the other defendant, James E. Bacon.

Plaintiffs alleged further that said Martin McCourtney in his life-time, and at his death in May, 1853, claimed to hold said land under a voluntary deed from John McCourtney, who was his father, which deed, dated 1st January, 1822, was wholly without consideration, fraudulent and void as against plaintiffs in the judgment under which said Spalding bought said land, and fraudulent and void as against said Spalding, purchaser under said judgment and execution, and also as against plaintiffs, who claim through said Spalding; and plaintiffs also alleged, that, at the time of said voluntary conveyance by said John to said Martin, the said John was greatly in debt and insolvent; and said defendants being now in possession of said premises, unlawfully withhold the possession of the same from plaintiffs, to their damage, &c. and plaintiffs ask for judgment of possession and for damages.

Defendants deny that plaintiffs are entitled to possession as alleged, and have no knowledge or information whether, on 30th March, 1829, said John McCourtney, through the sheriff, conveyed said land to said Spalding; nor whether said deed was duly acknowledged and recorded; nor whether Spalding and wife conveyed to Sloan and Krepps as alleged; nor whether this deed was acknowledged and recorded as alleged.

Defendants deny that the deed of John McCourtney of 1st January, 1822, to Martin McCourtney was wholly without consideration, fraudulent and void as against plaintiffs in the judgment named, said Spalding, and plaintiffs; also, that, at the time of said conveyance from said John to said Martin, said John was greatly in debt and insolvent; and deny that defendants unlawfully withhold, &c.

Defendants also allege that they, and those under whom they claim, have had peaceable and undisturbed possession of said premises for more than twenty years next before commencement of this suit, under a claim of title good as against all the world, and which possession is adverse to plaintiffs and all others, and they deny they unlawfully withhold, &c.

The instructions are given in the opinion of the court.

M. L. Gray, with J. D. Coalter, for appellants.

I. The judgment of the St. Louis Circuit Court in favor of Adam Jacob's administrator v. John McCourtney should have been admitted in evidence.

II. John McCourtney's application for the benefit of the insolvent law of Pennsylvania should have been admitted in evidence.

III. The injunction bill of Martin McCourtney and Thomas Sloan and Krepps should have been admitted in evidence as a whole.

Defendants were in privity with said Martin and claimed under him by descent, and were therefore bound by his statements about his title. (1 Greenl. Ev. 23, 189, and authorities therein cited.)

The bill was sworn to by Martin McCourtney, and thus is brought fully within the rule, and the whole of it should have been read in evidence. (1 Greenl. Ev. § 551, and note 4, and authorities there cited.)

IV. The statute of limitations did not begin to run against plaintiffs, Sloan, and Krepps, the ancestor of the other plaintiffs, till they acquired title through sheriff's sale in March, 1829. (See limitation act of 17th December, 1818; 1 Territorial Laws, p. 598, and 2 vol. R. C. 1825, p. 511; 26 Mo. 291 & 300; 3 Conn. R. 191.)

Until such title was acquired, plaintiffs had no right of action. The right of action accrued only when the sheriff made a deed to Spalding in March, 1829.

Defendants seem to admit this proposition.

V. The first instruction refused to plaintiffs should have been given. The proposition stated in the instruction is that possession under a void and fraudulent deed cannot be made available under the statute of limitations against a party claiming under a valid deed. The authorities are numerous, and, I believe, uniform, in favor of this position. They are collected in Tillinghast's, Adams on Ejectment, in Appendix, from page 455 to page 560, of 4 ed., 1854, with Waterman's notes, top paging. Also, when possession began in or by a fraud, or fraudulent deed. (See same book, top page 560 to 564.)

VI. The second instruction refused to plaintiffs should also have been given. The proposition contained in it seems to me to be so plain that it needs no argument. If the conveyance was fraudulent and void against Jonathan Walton, the creditor, it must be equally fraudulent against the purchaser under Walton's judgment, else Walton could not get the benefit of the fraud by a sale of the property. (See 22 Mo. 193; 23 Mo. 579; 27 Mo. 560.)

VII. Also, the third instruction refused should have been given. It would be monstrous to say that defendants could stop the prosecution of a suit for the recovery of the land by injunction for five years, and when said obstacle, interposed by defendant, was removed by the courts, that defendant could then turn round and plead this very delay as a bar to plaintiff's recovery. To permit this, would be enabling defendants to take advantage of their own wrong. If such be the law, a defendant need only get an injunction and keep it alive by appeal or otherwise till time enough has elapsed to protect him, then plead the statute, and he will be safe. I do not think the courts would permit themselves to be used to perpetuate such injustice.

Our statute declares the time thus lost shall not be counted to a defendant. (13 Vt. 288; 1 Maryland Chy. Dec., p. 182; 2 Stockton, Chy. R., 347; see, also, last proviso of 1 sec. of limitation act of 1825, R. C. 1825, 2 vol., p. 511.) This prevents a defendant, or those in privity with him, from taking advantage of their own delay. A party cannot obstruct the bringing or maintaining of an action and then avail himself of that obstruction.

VIII. Plaintiffs' fourth instruction, refused, should have been given. The ejectment suits brought in April, 1842, were in time, and were pending until the death of defendant. Before his death was suggested on the record in said suits, the present suit was brought, so that really there was no lapse of time at all from the termination of former suits and commencement of this. The courts have adopted the rule as stated in the instruction. (Ang. Lim., p. 344, 5 & 15; 5 Wend. 513; 10 Wend. 278; 3 Caine's Opinions of J. Thompson & Kent, pp. 202-7.)

IX. Plaintiffs' fifth instruction, refused, should have been given. (1 Ter. Laws, p. 543, § 2.) John McCourtney's deed to Martin was dated and acknowledged January 1, 1822, and not recorded within three months. The above statute declares void as against a subsequent deed.

X. Defendants' first instruction given was erroneous on the facts of the case before the court. Plaintiffs claim that the ejectment suit brought in 1842 was in time, and that that suit stopped the further running of the statute till the death of Martin McCourtney was suggested on the record, which was not till December, 1853. Before his death was suggested on the record, the suit was brought on to August, 1853.

As this suit was brought against the widow of Martin McCourtney even before his death was suggested on the record of the other suit, there was no laches on the part of plaintiffs, and the statute ought to be no bar to plaintiffs, if the first suit brought in 1842 were in time. The instruction should have required twenty years' possession prior to the first suit brought in 1842.

The instruction was erroneous again in not noticing the nearly five years that plaintiffs were enjoined from prosecuting their ejectment by Martin McCourtney, to-wit, from April, 1847, to October, 1851.

This time of the continuance of the injunction ought not to be counted to defendants, and the instruction was erroneous in not excepting this period. (In § 6, art. 3, of act of limitations, of 1835, page 395; also § 6, art. 3, of Laws of 1845, p. 713; also, last proviso of § 1 of limitation law of 1825, p. 511, of 2 vol.; 1 Maryland Chy. Dec., p. 182; 2 Stock. Chy. Rep., p. 347; 13 Vt. 288.)

Plaintiffs claim -- 1. That the time of the pending of the first ejectment suits -- that is, from 11th July, 1842, to December, 1853 -- cannot be counted to defendants. If this position be right, then defendants' first instruction, and also their third instruction, were erroneous.

2. That, at any rate, the time from April, 1847, to October, 1851, that plaintiffs were restrained by injunction from prosecuting their actions at law, cannot be counted to defendants. Therefore, defendants' first instruction, and also fifth instruction, were erroneous and should not have been given.

The case was submitted for respondents upon a written brief prepared by Trusten Polk, late Senator from this...