— This is an action in ejectment, instituted on the 4th day of September 1899, in the Cape Girardeau Circuit Court, to recover possession of the
The judgment was for the defendants, and the plaintiff appeals. The defendant, the Southern Missouri & Arkansas Railroad Company, is the landlord in possession of the premises by its tenants, the other defendants. The common source of title is the Cape Girardeau & State Line Railroad Company. The plaintiff claimed title under two deeds, one dated November 4,1875, from the marshal of Cape Girardeau Court of Common Pleas, conveying all the right, title, and interest of the said Cape Girardeau & State Line Railroad Company in the premises to John Albert, duly executed in pursuance of a sale on execution under a judgment of said court dated January 30, 1874, against said railroad company, in favor of John Albert and Sebastian Albert, and the other dated February 8, 1899, from the administrator of the estate of said John Albert, deceased, conveying all the right, title and interest of which he died seized in the premises to the plaintiff.
The answer was a general denial, a plea of the statute of limitation, and two pleas of estoppel.
The defendants claimed title by mesne conveyances from the common source; under which, their grantors went into actual possession of the premises, and as plaintiff concedes that the defendants and those under whom they claim have been in actual, continuous, adverse possession of the premises.for more than ten
“If any action shall have been commenced within the times respectively prescribed in this chapter, and the plaintiff therein Suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or, after a judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered or such judgment arrested or reversed; and if the cause of action survive or descend to his heirs, or survive to his •executors or administrators, they may, in like manner, commence a new action within the time herein allowed to such plaintiff,' or, if no executor or administrator be qualified, then within one year after letters testamentary or of administration shall have been granted to him. ’ ’
The facts relied upon to bring the case within the provisions of this statute are as follows:
On the 25th of September in the year 1881, John Albert died testate. By his last will and testament, duly admitted to probate on the 5th day of October, 1881, he devised the premises to his wife, Teresa Albert, and on the same day letters testamentary and of administration were granted and issued on his estate. Afterwards on the 10th day of April, 1888, a suit in ejectment to recover possession of the premises was instituted by the said Teresa Albert in the Cape Girardeau Circuit Court against Robert E..and George Mc-Nebly, térre-tehants of the Cape Girardeau Southwestern Railway Company, one of the grantors in defend
The venue of said action was changed, first to the Cape Girardeau Court of Common Pleas, thence to the Stoddard Circuit Court, where the same remained pending and untried until the March term, 1896, of said court, when the death of the said Teresa Albert was suggested, her heirs at law entered their appearance, and thereafter at the March term, 1897, of said court the suit was duly revived in their names, and thereafter still remained pending in said court, untried, until the March term, 1899, when it was disposed of by the following order (omitting caption), entered of record on the 13th day of March, 1899, to-wit: ‘ ‘ This cause coming on to be heard and it appearing to the satisfaction .of the court that the plaintiffs herein do not appear to prosecute in this cause, it is thereupon ordered that this, cause be dismissed for want of prosecution.”
The defendant’s grantors were in the adverse possession of the premises at the time John Albert died. At the time of his death, he was largely indebted, large-claims were early allowed against his estate, and after many delays in the administration, his real estate, including among other lands, the lands in suit, wa§ sold at administration sale on the 5th day of January, 1898, for the payment of his debts, under an order of the probate court originally made at the May, and renewed at the August term, 1897, of said court. At the sale the Fidelity Trust &. Safety Yault Company, executor of the last will and testament of John Callaghan, deceased,. ,a creditor of said Albert, in order to secure the debt, from .his estate to the. estate of the said Callaghan, became the-purchaser of the lands in suit for thirteen hundred dollars, and took title thereunder by said deed of February 8, .1899, in the name, of the plaintiff, who holds.
The evidence tended to prove, and counsel for plaintiff concede the fact to be, that the adverse possession of defendants and their grantors began in August, 1880, but contend that this action commenced by him on the 4th of September, 1899, is not barred by the statute by reason of the institution, pendency and dismissal of the suit instituted by Teresa Albert as aforesaid, and this presents the crucial question in the case.
(1) It is not seen how this contention can be maintained. "When John Albert died the statute of limitations had been running in defendant’s favor against him for about one year. His death did not arrest its • course. It continued running as before, against every one claiming under him, so that, when plaintiff instituted this suit on the 4th of September, 1899, the statute had been running in the defendant’s favor against Ms: right of action for more than nineteen years, and for more than nine years it had been barred by the provisions of section 4262 of that statute.
When Teresa Albert instituted her suit on the 10th of April, 1888, the statute had been running against her right of action for a period of less than eight years. Her action was not barred under the provisions of that section, and might be maintained by her or in ease of her death by her heirs in whom her right immediately vested on her death, until its termination. It wás so maintained by her until her death in 1896, and thereafter by her heirs until March 13, 1899, when that abtion terminated by the order of court aforesaid of that date, which may be termed a “nonsuit” within the meaning of section 4285, supra. [6 Ency. of Plead, and Prac., p. 828; Shaw v. Pershing, 57 Mo. 416; Hewitt v. Steele, 136 Mo. 327.] By virtue of the provisions of that section the heirs of Teresa Albert, the plaintiff in that suit, who suffered such nonsuit, might have commenced a new ac
But it is contended that although the plaintiff’a action is not within the terms of this section, it is within its spirit, and therefore ought not to be held to be barred. No support for this contention is to be found in the rulings of this or any of the appellate courts, of this State upon this statute, nor have we been, able to» find any in the cases-cited from other jurisdictions upon similar statutes. The rule seems to be universal that in order to save the second action from the bar of the statute, the cause of action must be the same, and the plaintiff must be the same in both actions. [19 Am. and Eng. Ency. of Law (2 Ed.), p. 265, notes 4 and 6, where the cases are collected.]
It is not essential in all cases that the plaintiff in both cases should be the same eo nomine, but they must be substantially the same — suing in the same right — as where the first suit was by the original trustee and the second by his successor in the trust (James v. Biscoe,, 10 Ark. 184); where the first suit was by the original administrator and the second by his successor (Moody v. Threlkeld, 13 Ga. 55); where the first suit was by a holder of a promissory note, and the second by the assignee pending the first suit (Anthony Invest. Co. v. Law (Kan.), 61 Pac. 745; Thornburgh v. Cole, 27 Kan. 490; Shively v. Beeson, 24 Kan. 352). These and like cases are cited by counsel for plaintiff in support of their contention. But this case does not come within
The judgment of the circuit court is therefore affirmed.