Brault v. Howard

39 Mo. 21 | Mo. | 1866

Wagner, Judge,

delivered the opinion of the court..

The contract under seal entered into between the parties in August, 1846, required the appellant to procure partition of the premises conveyed. No particular time was specified or designated in which the partition was to be proceeded with and obtained, but the law would imply that it should be done within a reasonable time.

It seems a good and valid partition was had in 1847, and unquestionably this was a sufficient compliance with the requirement of the contract. Upon partition being made, each party was to select a person to appraise the value of the share allotted to respondents; and if the appraisers so chosen could not agree in their judgment, they were to select a third person, whose decision should be final. The covenant of agreement did not devolve the duty of taking the initiative in selecting the appraisers or arbitrators on either party, and on the partition being completed either party had the right to proceed and require the selection to be made; and in case of default, refusal or neglect by the other party to comply, a breach would result and a right of action accrue; and from the time of this breach, the statute of limitations (under the act of 1845, which is applicable to this case) would begin to run, and after a lapse of ten years create a complete bar.

But the record does not show that any breach occurred, or right of action accrued,.at a time sufficiently remote to preclude the respondent from bringing her suit, or bar her action by reason of the statute of limitations, according to the views above announced.

The judgment is therefore affirmed.

The other judges concur.

Motion for rehearing overruled.