Shaw v. Pershing

Adams, Judge, delivered the opinion of the court. This was an action of ejectment, commenced in March, 1870, for the possession of the north west quarter of section twenty, in township fifty-seven, of range twenty, situated in Linn county, and being military bounty land, as known in our statute of limitations of two years. The petition was in the usual form ; and the answer was a denial of every allegation in the petition. The plaintiff’s chain of title consisted of, 1st, the patent from the United States to Silas Greenman, issued on the 18th [420] day of May, 1819 ; 2nd, a deed of Silas Greenman to Benjamin Shurtliff, dated 3rd day of April, 1820 ; 3rd, a deed from Benjamin Shurtliff to the plaintiff. The original deed from Greenman to Shurtliff was not produced. Air-examined copy established by the testimony of witnesses was read as evidence instead of the original. The preliminary proof to prove the execution and loss of the original deed, was in substance: that the original deed had two subscribing witnesses to it, whose handwriting thereto as witnesses was proven to be genuine, and the deed appeared on its face to be genuine ; and had been in the possession of the parties claiming the land, as a muniment of title for more than thirty years; and during all that time they exercised such acts of ownership over the land as are usual when not in the actual possession of the claimants. The land was notia the actual possession of any one till the defendant took possession. The proof in regard to the loss of the original, was, that it had been attached to certain depositions, which were put in the United States mail, directed to the clerk of the Circuit Court at Linneus, Missouri; that the package was duly enveloped and sealed up and put into the mail at Kingston, Bhode Island, and the postage prepaid, on or about the 20th day of May, 1872; that this package' did not reach its destination, and nothing had been heard from it up to the time of trial. The court ruled the preliminary proof sufficient to admit the secondary evidence, and the defendant excepted. The defense relied on, was the statutory bar of two years. The only evidence in reference to this point, consisted of the following written agreement of the parties : “ It is agreed for the purposes of this case, that plaintiff commenced an action of ejectment in the U. S. Circuit Court at St. Louis, Mo., against defendant, Pershing, to recover the land in question, in the spring or summer of 1868, which action was pending until the October Term, 1869, when, after all the evidence on both sides was introduced, and before the court made any ruling in the case, plaintiffj by his attorney, took a non-suit.” [421] ££ It is further agreed, that the present action was commenced within one year after such non-suit was taken.” £: It is further agreed, that the defendant, Pershing, has been in the actual possession of all of said premises for two years next before the commencement of this suit, claiming the same as his own as against the plaintiff, with actual inclosure of the whole quarter section under color of title.” Judgment was rendered in favor of the plaintiff, and the defendant has brought the case here by appeal. 1. The first point presented by the record is, whether the evidence of the execution of tire deed from Greenmail to Shurtliff was sufficient. This deed was more than thirty years old, and it had been all the time in the possession of the claimants as a muniment of title. No one was in the actual possession of the land; but the claimants had paid the taxes whenever they were assessed, and claimed the land under this deed. The deed seemed to be genuine, and the hand-writing of the attesting witnesses was proven. After such a length of time, if the subscribing witnesses were known to be alive, it would not be necessary to call or produce them. (See Stark. Ev., 9 Ed., 477.) The execution,,of the' deed as an ancient deed, seems to have been sufficiently established. 2. The absence and loss of the original deed was clearly shown. Erom the evidence given, the inference is almost conclusive, that the original deed was lost from the mail, and never arrived at the place of destination. 3. The only remaining point is the defense of the statute of limitations. The question is, whether our statute of limitations contemplated suits in the United States courts, as well as our own State courts, and whether the non-suit as taken, was such as is prescribed by the statute. The section of the statute referred to, reads as follows: ££ If any action shall have been commenced within the times respectively prescribed in this chapter, and the plaintiff therein suffer a non-suit, or, after a verdict for him, the judgment be arrested, or after such judgment for him, the same be reversed on appeal [422] or error, such plaintiff may commence a new action from time to time within one year after sneh non-suit, or such judgment arrested or reversed.” (2 Wagn. Stat., 919, § 19.) There seems to be nothing in this section which requires the action to be brought alone in the State courts; and there is no good reason why it may not be brought in a proper case in the U. S. courts, and thus avoid the bar of the statute. It is urged here, that a non-suit, within the meaning of' this statute, is such as is brought about by some adverse ruling of the court. But the language of the statute is plain and positive, and covers non-suits, no matter what may be the reason that induced them. The language is such as hardly to admit of any other than a literal construction. Besides, there is no good reason why a party should not act on his own motion in taking the non-suit. He may be satisfied that it would be a useless waste of money and time to appeal to a higher court. Some links may be lacking in his chain of evidence, which he may be enabled in another suit to supply; and, for this purpose he may suffer the non-snit. But whether it be for a good or a bad reason, the law authorizes a non-suit ; and the statute enacts the consequences. On the whole record, the judgment seéms to be for the right party. The judgment is affirmed; Judge Sherwood absent; the other judges concur.