Wells v. Halpin

• Decision Date: 31 January 1875
• Citation: 59 Mo. 92
• Parties: JOHN M. WELLS, Appellant, v. JOHN HALPIN, Respondent.
• Court: Missouri Supreme Court

59 Mo. 92

JOHN M. WELLS, Appellant,

v.JOHN HALPIN, Respondent.

Supreme Court of Missouri.

January Term, 1875.

Appeal from the Special Law and Equity Court of Jackson County at Kansas City.

Turner & Hill, for Appellant.

I. This action is not barred by the statute of limitations, as it is clearly within the saving of the statute. (Wagn. Stat., 920, § 24; Arnold vs. Scott, 2 Mo., 14; Harper vs. Pope, 9 Mo., 402, and opinion of Judge Napton in case relied upon by defendant; Taylor's Adm'r vs. Newby, 13 Mo., 164, 165.)

Tichenor & Warner, for Respondent.

I. Section 24 of the limitation law evidently refers to acts of the defendant, or those under whom he claims, and of which he had full knowledge. Mere ignorance on the part of plaintiff is not sufficient. (Smith, Adm'r of Taylor, vs. Newby, 13 Mo., 163; Foley vs. Jones, 52 Mo., 64; Allen vs. Mille, 17 Wend., 202; Troup vs. Smith, 20 John., 32.)

WAGNER, Judge, delivered the opinion of the court.

This case was submitted to the court sitting as a jury, upon an agreed statement of facts, from which it appears that during the year 1861 the plaintiff was the owner of the mule in controversy, and while it was in his possession it was forcibly and without authority taken or stolen from him, and that sometime in the year 1862 he saw the mule in the possession of the United States forces, and attempted its recovery, but before anything could be done it was taken away. Where the mule afterwards was, remained unknown to plaintiff till in the summer of 1872, when he found it in the possession of the defendant, who had bought it in good faith about a year previous, from a person who had just brought it from Colorado Territory. Plaintiff and defendant have both resided in Jackson county since 1861.

The action was in the nature of replevin, and the verdict was for the defendant. The only defense relied on was the statute of limitations, and the ruling of the court on that question furnishes the ground of complaint. The refusal by the court to give the third instruction asked for by the plaintiff, and the giving of defendant's instruction, are insisted upon as error.

Plaintiff's third instruction which was refused, declared the law to be: “That the concealments and improper acts referred to in the 24th section of the statute of limitations, (Wagn. Stat., 920, § 24) such as will suspend the running the statute, are the coneealments and improper acts not only of the defendant, but refer as well to those of all under whom the defendant claims, or who have had possession of the property since the same was taken from the possession of the plaintiff; and if then the court believes from the facts in this cause, that from the time the mule was stolen from plaintiff, in 1861, till it was purchased by defendant, such concealments and improper acts existed as prevented plaintiff bringing his action, then such time when such concealments and improper acts existed, cannot be claimed in bar of this action, although the court may believe the defendant had no knowledge or information of such improper acts or concealments; and if the plaintiff has brought his action within five years from the beginning of defendant's bona fide possession, and since the concealments and improper acts have ceased to prevent the bringing of an action, then plaintiff is entitled to maintain this suit.”

The instruction complained of, which was given for the defendant, is as follows: “If the court sitting as a jury, shall believe from the evidence, that the mule in question had been in the possession of defendant and those under whom defendant claims, for more than five years before the commencement of this suit, then the court should find for the defendant, unless the court further find from the evidence that plaintiff was prevented from bringing his action within the five years by some improper act of the defendant; that the mere ignorance of plaintiff as to the whereabouts of the mule, if such ignorance was not occasioned by the improper conduct of the defendant, will not deprive defendant of the statute of limitations.”

The statute of limitations, (Wagn. Stat., 918, § 10) limits the time of bringing an action for the taking, detaining or injuring goods or chattels, or for actions for the recovery of personal property to five years. But the 24th section of the same act provides, that if any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time limited, after the commencement of such action shall have ceased to be so limited. This provision has been several times before this court for adjudication, and the construction universally placed upon it, is, that the statute does not protect plaintiffs who are ignorant of the facts necessary to enable them to bring suits, unless that ignorance is occasioned or brought about by some improper conduct on the part of the defendants.

The case of Arnold vs. Scott, (2 Mo., 14)...