State v. Fleming

19 Mo. 607 | Mo. | 1854

Gamble, Judge,

delivered the opinion of the court.

1. In these cases, the individuals who were actually in the occupancy of the land, were the defendants originally sued. They appeared and filed their answers, in which they recognize the land in dispute to be section sixteen, in township thirty-four north, range seven east, as stated in the petition. Their answers assert that the title to said section sixteen is in Thomas Fleming, who is their landlord. Thomas Fleming, as landlord, is admitted to defend, and the action, as to the original defendants, is dismissed and discharged. Fleming admits himself in possession, but files no answer, and must, therefore, be taken to have adopted the answer filed by his tenants, who were the original defendants. The manner in which the land is described in the petition and answer sufficiently admits upon the record that it had, in the mode known to the law, been designated as a sixteenth section. There was, in such state of the pleadings, no necessity for the production of the original survey of the township and section, to show that this was the sixteenth section in that township.

2. The questions which have been considered and decided in the case of the State v. Ham, are the same that are presented in these cases, and the opinion in that case must govern in these. In addition, however, to the questions decided in that case, the defendant here insists upon the bar by the limitation of twenty years. The grant is to the state, for the use of the inhabitants of the different townships, and these ■actions are brought in the name of the state, because the title to tbe property is still in her. Until there is a corporate organization, under the laws of Missouri', and the title to the land vested in such corporation, there is no other body but the state capable of maintaining an action for the possession of the property, or for injuries done to it. While such continues to be the case, there is no right of action in any individual or any subordinate corporation, against which the statute can run, for it is beyond question, that until there is some person in being, capable of maintaining a suit, the statute does not begin to run. If the state can alone sue, then the mrxim nullum, tempus oc~ currit reipublicm applies, and furnishes an answer to the plea of the statute.

Referring to the opinion in the case of the State v. Ham, for the views of the court upon the principal questions in these cases, the judgments herein are, with the concurrence of the other judges, affirmed.