Summary
APPEAL FROM PLATTE CIRCUIT COURT.
Tliis was an action of detinue brought by tlie appellant against the appellee, to remove two negro boys, upon the following state of the case, as shown by the evidence on the trial. The deceased, william M. Taylor, in his lifetime, in York county, Yirginia, owned a negro woman named Louisa. . About the spring of 1841, this negro woman disappeared — supposed to have run away, and to have run away with a strange white man, who had been in the neighborhood, and who disappeared about the same time. In the month of March, 1841, one Burgess, a resident of Platte county, Missouri, and then on. a visit to Kentucky, near the line which separates that State from Yirginia, hearing that one Gowens, who was largely indebted to him, was just across the line, in Yirginia, with a negro boy in his possession, determined to go and get the boy from Gowens, in the way of his demand, by the best means he could. He went across, found Gowens and the hoy, and succeeded in inducing him to let him have the boy in the way of his indebtedness, at the extravagant price of $800. This took place from the 15th to the 20th March, 1841, not later than the 20th. Burgess immediately returned to Kentucky, and thence forthwith to Missouri, taking with him the negro. On his way to Missouri, he discovered the negro was a woman in man’s clothing. After his return to Missouri, Burgess sold the negro woman to one Alien; Allen sold her to Tetherow, and he sold her to defendant. The two hoys sued for are the children of Louisa, horn after she came to Missouri. William M. Taylor died in Yirginia about the last of February, 1846, and the plaintiff became his administrator in this State, 2nd April, 1847. Suit was commenced 8th April, 1847. It was testified that it was not known where said negroes were until after the death of Taylor.
Upon this state of facts, the appellant asked the following- instructions : 1. If the jury believe from the evidence that the negro woman, Louisa, is the mother of the boys mentioned in the declaration, and that she was the property of William M. Taylor of Virginia, deceased, at the time of his death, and William Smith, the plaintiff, is his administrator with the will annexed, they will find for the plaintiff. 2. If they find for the plaintiff, they must find the value of each negro separately. 8. That unless Alexander Gowens, at the time he let Burgess have the negro woman, described in the evidence in this ease, had good title derived from-William M. Taylor, deceased, in his life-time, to said negro woman, then said Burgess, by his purchase from him, acquired no title by said purchase. ' 4..If the jury believe from the evidence, that the negro woman, Louisa, was stolen from William M. Taylor of Virginia, and knowledge of the fact that the negro was in Missouri did not come to Taylor, or Ms administrator, until five years before the bringing of the suit, they will find that the suit is brought in time to entitle the plaintiff to recover. 5. That the five years’ possession by defendant, or those under whom defendant claims, which gives title under the statute of limitation, must be an adverse possession ; and if the jury believe from the evidence, that the negro woman Louisa was, about the spring of 1841, stolen from William M. Taylor, deceased, in his life-time, and is the mother of the' boys named in the declaration, then said statute of limitations cannot nor did not commence to run in this suit against said Taylor, or his administrator, until he had some knowledge or information of her being in possession of defendant or those under whom he claims.
The appellee asked the following instructions to-wit ;. That if the jury believe from the evidence, that the mother of the boys in the declaration, mentioned, before the birth of said boys, was purchased by one Burgess, in the month of March, 1841, and he sold to one Allen, and Allen, to one Tetli-erow, and he sold to defendant, and said woman and children, have been in possession of said persons, successively claiming them as their own for five years before said suit was brought, they will find for defendant, unless said Taylor died before the expiration of said five years ; but if said Taylor died within said five years, then the action may have been brought after the expiration of said five years provided it was brought within one year after the death of said Taylor.
The defendant’s and the first and second of plaintiffs were given by the court, the third, fourth and fifth of plaintiffs were refused. To the giving of defendant’s and refusing plaintiffs, plaintiff excepted, Whereupon plaintiff took a non-suit, and filed his motion to set it aside, which was overruled. The grounds were two. 1. That the court erred in giving and refusing instructions. 2. The court erred in excluding from the jury evidence offered by plaintiff, of the reputation in the neighborhood as to the parentage of the boys sued for.
The first question presented by the record is, could defendant, under the evidence in this case, avail himself legitimately of the statute of limitations, as contained in the instruction given by the court at the instance of defendant, and which is based on the 6th section of article 2, of our statute of limitations. Rev. Code, 1845, p. 717. We contend that defendant could not; for although defendant’s said instruction is based upon the abstract principles of law contained in said section (No. 6), still the testimony recited and preserved in. the bill of exceptions, shows that the hypothesis contained in said instruction, and contemplated by said section, cannot and does not apply to the case at bar, for the following reasons :
1. To have entitled defendant to have his said instruction, he ought to have shown a suitable case as presented by the evidence ; and in determining whether defendant did show such suitable ease, it is only necessary to look to the evidence as preserved, and also to look to all the sections of our said act of limitations applicable to said evidence, and by comparing the evidence in this ease with said 6th section of 2nd article, and also with the 7th section of same article, and also with the 8th section of the 3rd article of said act, in connection with the 2nd section, 2nd article of said act, it will bo seen that tlfe two last named sections apply to the case as pointedly as the section first named, and should have prevented the court from giving defendant’s said instruction. For whether the decision of our Supreme Court, in the case of' King v. Lane, 7 Mo. R. 241, or the decision in 3 Johns. R. 263, is still the law or not, under our Revised Code of 1845, p. 717, § 7, before roferred to (and it would seem that the reasoning in said decision is broad enough to embi’&ce this ease), still it is clear from the evidence that the very improper act of Burgess, in purchasing and removing the woman to Missouri, under whose possession, in part, defendant claims title to said negro boys, would and did prevent the statute of limitations from running in his favor, and in fact in favor of any one claiming under him.
2. From the evident meaning of said 7th section of 2nd article^of our act of limitations aforesaid, the instruction given for the defendant is evidently too broad; for at the time the cause of action herein accrued against the said Burgess, he being resident of this State, was out of the State, and the limitation of five years, under our statute, which, gives title, did not clearly commence running in his favor till his return to this State. The said instruction decides, that said statute commenced running from the time Burgess got possession of said negro woman, in favor of said Burgess and those claiming under him.
8. The cause of action herein, first accrued to Taylor, the deceased, in his life-time, who was a resident of Virginia, in the State of Virginia, against Gowens, who was in Virginia, and who was not a-resident of Missouri; and the principles laid down in said decisions of King v. Lane, 7 Mo. R. 341, and in 3 Johns. 363, although said decisions were made under the act of 1835, here apply and would prevent the running of said statute of limitations against Tay-Ior or his legal representatives until he or they should come to the State.' Although the decision in King v. Lane was made under the act of 1825, which hv its letter extends only to non-resident plaintiffs, still the spirit of said decision, and the reasoning of the court, therein, extends the doctrine to defendants, whether resident or non-resident, and seem to be-appliecl by the court to the act of 1835, which is'similar to our act of 1845, with this difference ; that the act of 1845, confines its operations towards defendants, to those only, who are residents of this State. We are frank to admit, however, that our minds are not clear in reconciling the decision and its reasoning in King v. Lane with the respective acts of 1825, 1835 and 1845.
4. But the instruction of the court given for defendant is wrong in another point of view. That instruction assumes, that if the possession of Burgess, Allen, Tetherow and defendant put together, amounted to six years from its commencement to the beginning of this suit, then plaintiff could not recover. Mow this position is incorrect; and unless Burgess or Tetherow, or defendant had the five -years’ possession required by our statute, to give title, then there is no pretense for pleading the statute of limitations. It is not contended that either Burgess or Allen or Tetherow, or defendant, separately, had that five years’ possession, and plaintiff contends that defendant had no right to consolidate their possession in his favor. Perry’s Administrator v. Puliam, 1 Haywood, 13; Elmore v. Milis, 1 Haywood, 359; Bishop v. Little, 3 Greenleaf ; Maine R. 405.
5. But even admitting that the defendant had a right to consolidate the possession of said men with his own, in his favor, to make out said period of six years, then surely, if Burgess falls' under the operation of the 8th section of the 3rd article of our act of Limitations, Rev. Code, p. 730, defendant is affected by it. And the act of Gowens from whom the title is derived, by Burgess, hiding out in Virginia with the woman Louisa, dressed in men’s clothes, evidently to prevent her from being recognized and recaptured by the true owner, if said woman was stolen from Taylor, as assumed hy plaintiff’s 4th instruction ; and Gowens’ known bad character, being known to Burgess, and his act in forcing Gowens to sell to him. by threats, at so high a priceV and running her under such suspicious circumstances, to Missouri, in such hot haste, are such improper acts by Burgess as are contemplated by said Sth section, and prevented the statute from running in favor of Burgess at least; because thereby he prevented the true owner from commencing his action, in Virginia.
6. Said acts of Burgess, under the circumstances, also constitute such a .“concealment” of the property as to prevent the running of the statute till Taylor or.his legal representatives heard where the woman was. Rev. Code, 18&, p. 730, § 8 ; Arnold v. Scott, 3 Mo. R. 14.
T But I hold that Burgess, or those claiming under him, upon the supposition that the negro woman Louisa -was stolen from Taylor, never had such adverse possession of said woman as gives title under our statute until Taylor, or'his legal representatives had a knowledge of that possession. Smoot v. IVathen’s Adm’r, 8 Mo. R. 533.
8. Nor did the statute commence running in favor of defendant till there ivas some one in being capable of suing for said woman and her children, and there was no one in Missouri capable of suing till plaintiff herein administered, and upon the assumption heretofore made that the cause of action did not accrue to Taylor in his life-time, against defendant, the statute of limitations never commenced running in favor of defendant till plaintiff administered as aforesaid, or till defendant became possessed of Louisa. McDonald, Adm’r of Pogue, v. Walton, 1 Mo. R. 531.
1. It nowhere appears upon tlie record, that there was evidence of the reputation of the neighborhood as to the parentage of the boys sued for, offered by appellant and excluded by the court. 3. ■The court did not err in refusing the third, fourth and fifth instructions asked by appellant. The third instruction was inapplicable to the case before the jury ; it could have done the plaintiff no good if it had been given, and the refusing to give it did him no injury; but it is positively defective and objectionable, in this : that it assumes the property of William M. Taylor in the negro woman, at the time Burgess purchased her of Gowens, and refers a question of law to the jury, as to the title of Gowens. The fourth and fifth instructions are liable, both of them, to the same objections. Most unquestionably the statute might operate a bar to an action, notwithstanding it may have had its origin in larceny, and the owner’s ignorance of where the stolen property was. I take it, that the instruction should have comprehended substantially, what before the recent alteration in pleading, would have been required in a replication. The instructions should have brought the appellant within the saving of the 8th section of the 3rd article of the statute of limitations (as that was what was probably intended), and referred the question to the jury as to the prevention of the action. Ignorance as to who had possession of the negroes, could not prevent the running of the statute. Vide Scott v. Arnold, 3 Mo. R. 14; Barnard & Wife v. Boulware, 5 Mo. R. 454 ; Sneed v. Hall, 3 A. K. Marsh. 33; Thomas v. White, <&c. 3 Litt. 183-4; Troup v. Smith’s Ex’rs, 30 Johns. R. 33. The introduction of this 8th section of the 3rd article of our act was intended as a legislative settlement of the question as to fraud taking a case out of the act. 8. The court did not err in giving the instructions asked by the appellee. That instruction is substantially the law of his side of the case, and it was for the plaintiff, if he conceived himself entitled to anjr of the savings of the act, to have asked instructions accordingly. Vide Smith v. Rowree, 3 A. K. Marsh. 530-30. The appellee had a right to avail himself of the running of the statute, from the time when the cause of action first accrued against those under whom he derives his claim, and is not confined to the time when he acquired the slaves, or became liable to the action. Vide Crozier v. Bryant, Adm’r, <&e. 4 Bibb, 177-8 ; 3 Chitty’s PL 941; see form of plea of the statute ; Hord v. Walton, 3 A. K. Marsh. 630. 4. It appears to be a notion of some, based upon the case of King v. Lane, 7 Mo. R. 341, that the statute does not run against absent plaintiffs. The saving in favor of absent plaintiffs, was repealed with the act of 1835, and has not been introduced into the law since. In the 7th section of the 3nd article of our acts of 1835 and 1845, defendants, only, are mentioned. The courts of England would have been just as able to create a saving as to absent defendants, by construction, out of the saving in favor of absent plaintiffs, contained in the act of 31st James I., as our court to create a saving in favor of absent plaintiffs, by construction, out of the 7th section of the 3nd article of our act; but they repeatedly acknowledge their inability to do-so. Vide 3 Tomlin’s Law Diet. 467.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
