Gordon v. Leavis

Norton, J. This suit was commenced in the Adair county circuit court on the twenty-eighth day of July, 1881, by plaintiffs as the heirs of Emalia Gordon to redeem a mortgage executed by James Sevy on the fourth of January, 1858, conveying to Adair county the south half of the southeast quarter of section thirteen, township sixty-two, range fifteen, to secure the payment of a certain bond within mentioned for the sum of two hundred dollars. On the trial judgment was rendered for the defendant, from which plaintiffs have appealed. It appears from the record that Sevy entered the above described land in 1854, and mortgaged the same to Adair county in 1858 ; that in I860, Emalia Gordon, the mother of plaintiffs, by various mesne conveyances made subsequently to the said mortgage, became the owner of said land subject to said mortgage executed by Sevy to the county; that in 1860 said Emalia and her husband, James E. Gordon, took possession of said land, and the said James E. made a payment of interest on the bond to the county. It further appears, that in 1863 the land was sold by the sheriff, by order of the county court of Adair county, for the payment of the bond secured to be paid by the mortgage; at which sale the county purchased, and subsequently, in July, 1863, conveyed the land by a commissioner’s deed to one Epperly and defendant Lewis for $272.28, which was applied to the payment of the mortgage debt. It also appears that said Epperly conveyed his interest to .defendant Lewis. It also appears that after this sale, the said Emalia Gordon and her husband abandoned the premises in 1863, and moved off the same, and .that defendant Lewis immedately. entered and took the actual possession of the land, claiming it adversely to all the world, and has lived on it under such claim ever since. It also appears that said [381] Emalia Gordon died in 1864, and that her husband, James E., who survived, conveyed, a short time before this suit was brought, whatever interest he had in said land to plaintiffs. The question raised by the above state of facts is whether the right of redemption is barred by the statute of limitations. The trial court held that it was and we think properly. The fact that the suit is a proceeding in equity can make no difference as to the operation of the statute of limitations ; it having been held in the case of Kelly v.Hurt, 61 Mo., at page 466, that: “ The statute of limitations applies to all civil actions — to those which were formerly' denominated suits in equity as well as to actions at law.” The case of Rogers v. Brown, 61 Mo. 187, is to the same effect. In the case of Cape Girardeau County v. Harbison, 58 Mo. 90-96, it is said: “That a mortgagee in possession, who, for the period of limitation, refuses' to recognize the existence of the mortgage, or any equitable claim in the mortgageor, may stand upon such ádverse possession, and under color of the statute resist an effort by the mortgageor to enforce his equity of redemption.” In the cases of Dessaunier r. Murphy, 33 Mo. 184 and Billon et al. v. Larimore, 37 Mo. 375, it is held that when a disability exists at the time the cause of action accrued, when that disability -is removed, another disability cannot be tacked on to it. In the first case cited the wife was under disability of coverture when the cause of action accrued. She died leaving her husband living, and it was held, “that immediately upon her death the statute began to run against her representatives without regard to any disabilities under which they might be, for this would in effect be a cumulation of disabilities.” Applying the principles, enunciated in the cases cited and it is clear that the plaintiffs are barred in this action. The adverse possession of defendant began in 1863, and has been continued ever since. The cause of action ac [382] crued to Emalia Grordon, the mother of plaintiffs, in 1863. She died in 1864, and upon her death the statute immediately began to run against plaintiffs, notwithstanding their minority, and this suit was not begun till 1881, seventeen years after the statute began to run. The judgment is for the right party and we affirm it. All concur.