Jodd v. Mehrtens

OPINION. BOND, J. (After statement of facts as above).— Upon the calling of the cause in this court, it was submitted without argument, upon the briefs filed by both parties. It must be confessed that the abstract statement, brief and argument filed on behalf of appellant does not disclose that her motion for new.trial was preserved in a bill of exceptions. And we might for that reason, under the repeated rulings of this court, decline to consider any question on this appeal other than those arising upon the record proper. [Jodd v. Lee, [397] 256 Mo. 536; State ex rel. v. Adkins, 221 Mo. l. c. 120; Barham v. Shelton, 221 Mo. l. c. 70; Gilchrist v. Bryant, 213 Mo. l. c. 443; Thompson v. Ruddick, 213 Mo. l. c. 564.] But a careful consideration of all that is contained in appellant’s brief, including in that review the evidence contained in the agreed statement of facts, as if it had been properly preserved in the bill of exceptions, demonstrates that there was no error in the ruling made by the trial court in favor of the defendants, and this, for the reason, among others, that the agreed statements of facts show that plaintiff’s cause of action falls strictly within the terms of the statute of repose pleaded in defendant’s answer, and set forth in section 1884, Revised Statutes 1909: That is a familiar statute, and need -not be quoted. It was first enacted in 1874. [Collins v. Pease, 146 Mo. l. c. 139.] It applies to all titles, legal, as well as equitable, which have emanated from the Government more than ten years before the entry of lawful possession of any person holding the premises, which shall, or might be, claimed by another, and precludes any assertion of such claim, if it be shown that said claimant, or those under whom he deraigns title have not been in possession of said premises at any time within thirty consecutive years, and neither said claimant, nor those nnder whom he may hold, have paid any taxes for that period, nor within one year after its lapse, brought an action to recover the premises. The admission contained in section 9 of the agreed statement of facts shows that this case is within the plain language of the statute and is barred by the lapse of more than thirty-one years from the time plaintiff’s right to dower accrued upon the death of her husband in September, 1878, and the institution of her suit on the 28th of October, 1910. [Sec. 1884, R. S. 1909; DeHatre v. Edmonds, 200 Mo. 246, 275;. Crain v. Peterman, 200 Mo. 295, 299; Campbell v. Greer, 209 Mo. [398] 199, 216; Dunnington v. Hudson, 217 Mo. 93, 101; Collins v. Pease, 146 Mo., supra.] The judgment of the trial court was the only one which could have been rendered under the pleadings, and the facts admitted of record. It is therefore affirmed. All concur.