14 Mo. App. 52 | Mo. Ct. App. | 1883
delivered the opinion of the court.
This is an action of ejectment. The defence is the statute of limitations of twenty-four years. Rev. Stats., sect. 3222. The reply is, that in the year 1838, the mother of the plaintiffs was the owner of the land in fee simple, having inhei’ited it from her father; that she was, at the time, the wife of Abner W. Dyer, their father; that there was issue born alive of the marriage in 1837 ; that their marital relation continued until 1869, when it was dissolved by the death of the mother; that the father died a year later; that the plaintiffs are the only surviving issue of the marriage, and claim the premises as heirs of their said mother.
At the trial, evidence was given tending to support this reply.
The court,-under appropriate evidence, offered by the defendants, gave the following declaration of law, which drove the plaintiffs to a non-suit: —
“ The court, of its own motion, declares the law to be, that if defendants, or those under whom they claim, entered upon .a tract of land, embracing the premises described in the petition herein, in the year 1846, claiming to own said tract under and by virtue of a deed purporting to convey the same to them in fee, and in that year enclosed said tract with a fence, and improved, occupied and cultivated said tract ( or the portion thereof described in the petition), so enclosed and improved, continuously from that time, under such claim of title, up to the time of the death of Abner W. Dyer, on or about the 25th of June, 1870, and for three years next after his death, and before the original petition in this case was filed, the plaintiffs are not entitled to recover.”
This they did not do.- They did not commence this action until 1878. At this time, excluding the year in
The judgment of the circuit court is affirmed.