Smith v. Newby

NAPTON, J. The question principally discussed in this case, turns upon the construction of the 8th section of the 3rd article of our statute of Limitations. That section provides, “ that if any person, by absconding or concealing himself, or by any other improper act of his own, prevent the commencement of any action in this act specified, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented.” It is contended by the plaintiff, that the statute did not commence running against him .or his testator, until he had obtained such information in relation to his stolen or runaway slave, as "would have enabled him to commence an action. The case of Arnold v. Scott, 3 Mo. R. 14, is cited in support of this proposition. The head-note of that case is calculated to mislead. The only question in the case was upon a sufficiency of a replication, which averred “that said A. during the space of [116] five years next after the conversion, concealed the said taking and conversion, so that the said S. did not within that time come to the knowledge thereof.” This replication was held good. The act of 1825 expressly excepted from its benefit a defendant who absconded or concealed himself, or removed out of the State, territory or district, where the cause of action accrued, or who by any other indirect means, defeated or obstructed the bringing of a suit. The concealment of the property converted was clearly such an obstruction. The ignorance of the plaintiff in relation to his lost property did not constitute the gist of the replication, but the actual concealment of the defendant, which of course was the occasion of that ignorance, and thereby prevented a suit. The questions considered in the case of Troup v. Smith, 20 Johns. R. 32. and Mass. Turn. Co. v. Field, 3 Mass. R. 201, and other similar cases, are not important here. Our statute has settled those questions. Our statute does not protect plaintiffs who are ignorant of the facts necessary to enable them to bring suit, unless that ignorance is occasioned by some improper conduct on the part of defendants. If the defendant absconds or conceals himself, or does any other improper act to prevent the commencement of an action, he is not within the protection of the statute. If he has not done these things, or any of them, he is protected, although, as in the present case, the plaintiff may have been guilty of no laches. Between two parties equally innocent, one of whom must sustain a loss, it is not the policy of the law to interpose. There is a section of our statute which makes certain provisions saving the rights of plaintiffs ; but no provision is made for a case like the present. We have no power to interpolate such a saving, even if it were thought equitable and just. “-"These principles will readily lead to the conclusion that Gowens, the person who stole the slave from Taylor, or who aided her in escaping, "was not within the protection of the statute. Nor was Burgess, who purchased of him, if he was a pm'ticeps criminis. There were circumstances attending this purchase whidh certainly might have created suspicion; but it is to be inferred from the course taken at the trial, that this point was not designed to be made before the jury. No instruction was asked, calculated to bring in question Burgess’ conduct. His character was perhaps entirely beyond the reach of suspicion. The instruction given by the court seems to assume that the purchases of Burgess, Allen, Tetherow and the defendant, were all bona fide, and no counter instruction was asked, having any bearing upon the matter in dispute, so far as the honesty and fairness of these four were concerned. The non-suit taken did not result from the refusal of the court to give any instruction on this point, for none was asked. The statute of Limitations then commenced running in favor of Burgess (if his purchase was bona fide) from the time of his return to this-State. The instruction given by the court was, that the statute commenced running from the time Burgess obtained possession of the woman. This was erroneous ; for Burgess was a resident of this State, within the 7th section of the 3rd article of the statute, and being temporarily absent at the time of getting the negro woman Louisa into his possession, the plaintiff was not bound to sue him until his return to this State, and the statute did not commence running in his favor until that time. The error is not however, important, as the last branch of the instruction, which is drawn from the 6th section of the same article of the act, is clearly fatal to the plaintiff’s recovery. .It makes no difference, whether we calculate the running of the statnte from the 20th of Max’cli, which is testified to be about the time of the purchase, or a few weeks later when Burgess returned to Missouri, since upon either hypothesis, Taylor died within the five years, and the suit was not instituted within a year from the death of Taylor. It would only be putting the parties to unnecessary expense to reverse the-judgment for an error of this kind. It is argued, that the defendant in this case must make out a five years’ possession of his own, in order to get the benefit of the statute, and that he cannot tack on to his possession the previous possession of Allen, Tetherow and Burgess. This is a misapprehension of the statute. The statute says nothing about adverse possession. It is the failure to bring the suit by the plaintiff [117] •within the prescribed time, which bars, and this bar is effectual, unless the t plaintiff brings himself within some of the sayings made in his favor, or I deprives the defendant of the protection of the statute by showing him to be/ within some of the provisions designed to effect this object. Besides, it is the' settled construction of these acts of limitation, that when the act commences'' running, nothing stops it. Another point in the case is, that the absence of the plaintiff from this State prevents the running of the statute. The case of King v. Lane, 7 Mo. R. 241, is cited; but is totally inapplicable to the act of 1845. There is no saving in favor of plaintiffs in this statute, by reason of their non-residence, except in the cases enumerated in the 1st section of the 3rd article, and the present is not one of them. Non-age, insanity, imprisonment and coverture are the only disabilities enumerated in the 5th section of the 2nd article, where all the legislation upon this branch of the subject is to be found, excepting the provisions in the 1st section of the 3rd article in favor of citizens of a foreign country, at war with the United States. The absence from, or non-residence of tbe plaintiff in this State, did not prevent the running of the statute.(a) Judgment affirmed. Footnotes [a] (a) But see Tagart v. State of Indiana, 15 Mo. R. 209; Thomas v. Black, 22 Mo. R. 330; Garth v. Kobards, 20 Mo. R. 623; Cook v. Holmes, 29 Mo. R. 61.