Billon v. Larimore, 37 Mo. 375

Billon v. Larimore

37 Mo. 375 | Mo. | 1866

Holmes, Judge,

delivered the opinion of the court.

The case turns upon the statute of limitations. It was *386shown that John Graham, being seized in fee of the land in controversy, which he occupied and cultivated as a farm, by his.deed dated March 28, 1812, conveyed the same to his daughter Margaret, then a minor; that the daughter married Michael Connell, and died under age, in 1813, leaving an infant daughter, Mary, her sole heir-at-law ; and that Mary, born in 1813, married Cyprian Billon (plaintiff), May 14, 1829, while yet a minor.

A deed of this land from Michael. Connell and Margaret his wife to Edward Hempstead, under which the defendants claimed title and possession, dated July 7,1812, was offered in evidence on the part of the defendants. Upon objections of the plaintiffs to the validity of this deed as a conveyance of title, it was excluded by the court as such, but was allowed to be read to the jury for the purpose only of showing that the possession taken by the grantee of the land described in it, was by claim and color of title. For this purpose the instrument was clearly admissible; and there was evidence tending to show that Edward Hempstead, the grantee, by himself or tenants, took possession of the land soon afterterwards, and held the same continuously until his death, in 1817. Thus stood the case before the jury, so far as this deed was concerned; and the question, whether the deed conveyed a valid title in fee, or the life estate of the husband by the curtesy, was wholly immaterial to the issue on trial. The petition stated certain facts concerning the execution and acknowledgment of this deed by the wife, looking to equitable jurisdiction, and prayed that the same might be set aside and annulled. These statements were insufficient to entitle the plaintiffs to-relief under any head of equity jurisprudence.

The petition contained a cause of action in ejectment, stated with the requisite degree of clearness and certainty, though unnecessarily and improperly overloaded with details of evidence ; and upon this cause of action the trial proceeded. It is improper to stuff matters of equity into the body of a count at law. The parties having in effect elected to proceed upon the cause of action in ejectment, these equita*387ble matters were very properly disregarded as surplusage. When the adverse possession began, and the cause of action accrued to the plaintiff Mary, she was still a minor unmarried. By her marriage with the plaintiff Cyprian Billon, while, yet a minor, the disability of coverture may indeed be said to have been superadded to the other; but the statute, nevertheless, began to run against her when the disability of infancy expired in 1834. The plaintiffs seek to tack the disability of coverture upon that of infancy, and to avail themselves of both as one continuing disability. This cannot be done. Where two or more disabilities exist together at the time the cause of action accrues, the statute of limitations will not begin to run until the last one is removed; but where but one exists when the cause of action accrues, the statute will begin to run when that expires, notwithstanding others arise in succession afterwards. This is too well settled to admit of doubt. (Mercer v. Selden, 1 How. U. S. 37; Keeton v. Keeton, 20 Mo. 530; Dessaunier v. Murphy, 33 Mo. 184; Ang. Lim. 206-9.)

The case depended, then, wholly upon the question of adverse possession. By the laws then in force, when the statute began to run against the plaintiffs, they had twenty years in which to bring their suit. It was not brought within that time, and their right of action was wholly barred, and absolute title vested in the defendants; provided only that they, and those under whom they respectively claimed, could establish an adverse possession reaching back to a time anterior to the commencement of the disability of coverture. For this purpose they offered evidence tending to prove that they had respectively held under derivative titles by deed from Edward Hempstead, and under the adverse possession which he took in 1812, and continuously held under claim and color of title by deed from the mother of the plaintiff Mary ; that the successive occupants ever afterwards had held possession of the land, or some part of it, claiming the whole, under that title, for themselves, or under tho^e holding in privity with that title, either for them or their tenants; and that the possession *388had accompanied that claim and derivation of title in one continuous and unbroken chain down to the time when the plaintiffs’ right was barred, and even to the commencement of the suit. The matters of fact were to be determined by the jury, under the instructions of the court. We have examined the evidence so far as to be satisfied that there was an ample basis in the evidence for the instructions which were given for the defendants. These instructions laid down the law correctly as applicable to such a case ; no error is suggested in them; and, together with those which were given for the plaintiffs, they submitted the questions of fact fairly and intelligibly to the jury.

The first and. second instructions which were refused for the plaintiffs, involving the question of cumulative disabilities, were rightly refused, for reasons already stated. The propositions of the fourth, fifth, seventh and tenth, relating to adverse possession, were substantially contained, so far as material, in those which were given; and the eighth, respect ing the deed of Connell and wife to Edward Hempstead, was upon a matter not in issue, and wholly immaterial.

The jury having found for the defendants, under correct instructions, and there being no error to the prejudice of the rights of the plaintiffs, the verdict will not be disturbed. Judgment affirmed; and judgment will be entered as of the day when the cause was submitted.

The other judges concur.