Bates, Judge,
delivered the opinion of the court.
John McCourtney, by deed dated January 1st, 1822, conveyed a tract of land in St. Louis county, Missouri, to his son Martin McCourtney, for the consideration of natural love and affection, and for the better maintenance, support, livelihood and preferment of Martin. This deed was recorded on the 24th day of April, 1822.
[154]*154' Subsequently suit was brought against John McCourtney on the 22d day of December, 1822, and this tract of land, attached as the property of John McCourtney on the 23d day of January, 1823, sold on the 25th March, 1829, to Josiah Spalding, and sheriff’s deed to him executed on 30th March, 1829. Spalding conveyed to Thomas Sloan and Solomon G. Krepps on the 28th October, 1829.
On the 11th of April, 1842, Sloan brought two actions of ejectment for the land, one against Martin McCourtney and the other against Henry Goodwin, in which last case Martin McCourtney was, on his own motion, made a co-defendant. On the 4th day of February, 1847, Martin McCourtney and Goodwin filed a bill in chancery praying that Sloan might be enjoined from further prosecuting said actions of ejectment, and that the title of Sloan and Krepps to the land should be vested by a decree of the court in the complainant. A temporary injunction was granted, and afterward a decree was rendered by the Circuit Court in favor of the complainant perpetuating the injunction, from which the defendants appealed to the Supreme Court, where the decree of the Circuit Court was reversed and the complainant’s bill dismissed at the October term, 1851. (The case is reported in 15 Mo. 95.)
Martin McCourtney died, and his death was suggested in the ejectment suits brought by Sloan, and the suits dismissed, on the ground that they did not survive against his representatives, on the 16th day of December, 1853.
On the 14th September, 1853, this suit was brought by Sloan and the heirs of Krepps for the same land, against Charles E. Bacon, (who held possession under Martin McCourtney,) and Ann McCourtney, the widow of Martin, has been made co-defendant. The petition sets out the title of the plaintiffs, and alleges that defendants hold under the deed of John McCourtney to Martin McCourtney, and charges that that deed was fraudulent and void as against the plaintiffs, who stood in the relation of creditors of John McCourtney. The answer puts in issue the sheriff’s sale and conveyance to [155]*155Spalding, and Spalding’s conveyance to Sloan and Krepps ; and also denies that the conveyance by John to Martin McCourtney was without consideration and fraudulent and void, &c. The answer also set up, in bar of the plaintiffs’ right, more than twenty years’ possession before the commencement of the suit adverse to the plaintiffs and all other persons.
At the trial, evidence was given that, about 1821, John McCourtney owed debts which it was impossible to collect from him. Evidence was given of possession by Martin McCourtney and his representatives for more than twenty years before the commencement of this suit.
The plaintiffs asked the court to give to the jury the following five instructions, all of which were refused :
1. If Martin McCourtney obtained possession of the land in controversy under a deed which the jury shall consider fraudulent and void, (according to the rule laid down in other instructions,) then he cannot avail himself of the statute of limitations in virtue of a possession thus obtained, as against these plaintiffs claiming under a deed not tainted with fraud.
2. The deed from the sheriff (Simpson) to Josiah Spalding, givenin evidence by the plaintiffs as the deed under which they claim the land in controversy, is a deed made by the sheriff under a judgment obtained by Jonathan Walton as one of the creditors of John McCourtney, and the deed thus made entitles the said Josiah Spalding, and all who claim under him, to all the protection which the law affords to creditors against the acts of their fraudulent debtors.
3. In estimating the time during which the statute of limitations would run against the plaintiffs the jury will not take into account the time during which the chancery suit, given in evidence, was pending between Martin McCourtney and Thomas Sloan and Krepps, their ancestors, of other plaintiffs in reference to said land.
4. If it appears from the evidence that the suit commenced by Thomas Sloan, one of the plaintiffs in this case, against Martin McCourtney, under whom defendants hold, the 11th day of April, 1842, was continued until the 16th December, [156]*1561853, and that the present suit for the same land was then commenced, defendants cannot protect themselves under the statute of limitations, unless they show that for twenty consecutive years prior to said 11th day of April, 1842, defendants, or those under whom they claim, had possession of said land adverse to plaintiffs and those under whom they claim.
5. If the' deed from John McOourtney to Martin, under which defendants hold, was not recorded until three months from its dato, then it is void as against the sheriff’s deed to Spalding, under which plaintiffs claim, if said deed is subsequent to the other deed, and was recorded within three months from its date.
On motion of the plaintiffs, the court gave these four instructions :
' 1. If the jury believe from the evidence that, at the time of the execution of the deed of John McOourtney to his son Martin, the said John was in debt, it is a circumstance from which they may infer that the said deed to his son (being on the face of it a voluntary deed without consideration deemed valuable in law) was made with the intent to defraud, hinder or delay his creditors ; and if made with such intent, the said deed is fraudulent and void as against creditors.
2. If both plaintiff and defendant claim title from the same man, to-wit., John McOourtney, and if the deed under which defendants hold is void as against the deed under which plaintiffs hold, then, so far as the documentary or paper title is concerned, plaintiffs must prevail against defendants.
3. If Martin McOourtney, under whom defendants claim, has, at any time since his possession of said land, asserted that he claimed to own said land by virtue of a deed from his father, John McOourtney, then these defendants cannot deny the title of plaintiffs, if said plaintiffs show a deed to them from said John McOourtney for same land, and which deed, by the rules laid down in the other instructions, is to prevail over said deed from John to his son Martin.
4. If Martin McOourtney, under whom defendants claim, got possession of the land in controversy by virtue of a deed [157]*157from John McCourtney to said Martin, dated 10th January, 1822, and plaintiffs claim by virtue of a deed dated March 20, 1829, from said John McCourtney to Josiah Spalding; and if the jury are of opinion, from lhe evidence, that the said deed from John to his son Martinis fraudulent and void as against the deed from John by sheriff to Spalding, then the defendants cannot avail themselves of the possession so obtained under the plea of the statute of limitations, until the date of the execution of said deed of 1829.
On motion of defendants, the court gave the following five instructions, to-wit:
1.
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Bates, Judge,
delivered the opinion of the court.
John McCourtney, by deed dated January 1st, 1822, conveyed a tract of land in St. Louis county, Missouri, to his son Martin McCourtney, for the consideration of natural love and affection, and for the better maintenance, support, livelihood and preferment of Martin. This deed was recorded on the 24th day of April, 1822.
[154]*154' Subsequently suit was brought against John McCourtney on the 22d day of December, 1822, and this tract of land, attached as the property of John McCourtney on the 23d day of January, 1823, sold on the 25th March, 1829, to Josiah Spalding, and sheriff’s deed to him executed on 30th March, 1829. Spalding conveyed to Thomas Sloan and Solomon G. Krepps on the 28th October, 1829.
On the 11th of April, 1842, Sloan brought two actions of ejectment for the land, one against Martin McCourtney and the other against Henry Goodwin, in which last case Martin McCourtney was, on his own motion, made a co-defendant. On the 4th day of February, 1847, Martin McCourtney and Goodwin filed a bill in chancery praying that Sloan might be enjoined from further prosecuting said actions of ejectment, and that the title of Sloan and Krepps to the land should be vested by a decree of the court in the complainant. A temporary injunction was granted, and afterward a decree was rendered by the Circuit Court in favor of the complainant perpetuating the injunction, from which the defendants appealed to the Supreme Court, where the decree of the Circuit Court was reversed and the complainant’s bill dismissed at the October term, 1851. (The case is reported in 15 Mo. 95.)
Martin McCourtney died, and his death was suggested in the ejectment suits brought by Sloan, and the suits dismissed, on the ground that they did not survive against his representatives, on the 16th day of December, 1853.
On the 14th September, 1853, this suit was brought by Sloan and the heirs of Krepps for the same land, against Charles E. Bacon, (who held possession under Martin McCourtney,) and Ann McCourtney, the widow of Martin, has been made co-defendant. The petition sets out the title of the plaintiffs, and alleges that defendants hold under the deed of John McCourtney to Martin McCourtney, and charges that that deed was fraudulent and void as against the plaintiffs, who stood in the relation of creditors of John McCourtney. The answer puts in issue the sheriff’s sale and conveyance to [155]*155Spalding, and Spalding’s conveyance to Sloan and Krepps ; and also denies that the conveyance by John to Martin McCourtney was without consideration and fraudulent and void, &c. The answer also set up, in bar of the plaintiffs’ right, more than twenty years’ possession before the commencement of the suit adverse to the plaintiffs and all other persons.
At the trial, evidence was given that, about 1821, John McCourtney owed debts which it was impossible to collect from him. Evidence was given of possession by Martin McCourtney and his representatives for more than twenty years before the commencement of this suit.
The plaintiffs asked the court to give to the jury the following five instructions, all of which were refused :
1. If Martin McCourtney obtained possession of the land in controversy under a deed which the jury shall consider fraudulent and void, (according to the rule laid down in other instructions,) then he cannot avail himself of the statute of limitations in virtue of a possession thus obtained, as against these plaintiffs claiming under a deed not tainted with fraud.
2. The deed from the sheriff (Simpson) to Josiah Spalding, givenin evidence by the plaintiffs as the deed under which they claim the land in controversy, is a deed made by the sheriff under a judgment obtained by Jonathan Walton as one of the creditors of John McCourtney, and the deed thus made entitles the said Josiah Spalding, and all who claim under him, to all the protection which the law affords to creditors against the acts of their fraudulent debtors.
3. In estimating the time during which the statute of limitations would run against the plaintiffs the jury will not take into account the time during which the chancery suit, given in evidence, was pending between Martin McCourtney and Thomas Sloan and Krepps, their ancestors, of other plaintiffs in reference to said land.
4. If it appears from the evidence that the suit commenced by Thomas Sloan, one of the plaintiffs in this case, against Martin McCourtney, under whom defendants hold, the 11th day of April, 1842, was continued until the 16th December, [156]*1561853, and that the present suit for the same land was then commenced, defendants cannot protect themselves under the statute of limitations, unless they show that for twenty consecutive years prior to said 11th day of April, 1842, defendants, or those under whom they claim, had possession of said land adverse to plaintiffs and those under whom they claim.
5. If the' deed from John McOourtney to Martin, under which defendants hold, was not recorded until three months from its dato, then it is void as against the sheriff’s deed to Spalding, under which plaintiffs claim, if said deed is subsequent to the other deed, and was recorded within three months from its date.
On motion of the plaintiffs, the court gave these four instructions :
' 1. If the jury believe from the evidence that, at the time of the execution of the deed of John McOourtney to his son Martin, the said John was in debt, it is a circumstance from which they may infer that the said deed to his son (being on the face of it a voluntary deed without consideration deemed valuable in law) was made with the intent to defraud, hinder or delay his creditors ; and if made with such intent, the said deed is fraudulent and void as against creditors.
2. If both plaintiff and defendant claim title from the same man, to-wit., John McOourtney, and if the deed under which defendants hold is void as against the deed under which plaintiffs hold, then, so far as the documentary or paper title is concerned, plaintiffs must prevail against defendants.
3. If Martin McOourtney, under whom defendants claim, has, at any time since his possession of said land, asserted that he claimed to own said land by virtue of a deed from his father, John McOourtney, then these defendants cannot deny the title of plaintiffs, if said plaintiffs show a deed to them from said John McOourtney for same land, and which deed, by the rules laid down in the other instructions, is to prevail over said deed from John to his son Martin.
4. If Martin McOourtney, under whom defendants claim, got possession of the land in controversy by virtue of a deed [157]*157from John McCourtney to said Martin, dated 10th January, 1822, and plaintiffs claim by virtue of a deed dated March 20, 1829, from said John McCourtney to Josiah Spalding; and if the jury are of opinion, from lhe evidence, that the said deed from John to his son Martinis fraudulent and void as against the deed from John by sheriff to Spalding, then the defendants cannot avail themselves of the possession so obtained under the plea of the statute of limitations, until the date of the execution of said deed of 1829.
On motion of defendants, the court gave the following five instructions, to-wit:
1. If the jury find from the evidence that the defendants, and those under whom they claim, have had possession of the premises sued for twenty years consecutively next before the commencement of this suit, holding the same for themselves and against all other persons, the plaintiffs are not entitled to recover.
2. Unless the jury shall find from the evidence that the land attached, in the case against John McCourtney, in the St. Louis Circuit Court, is the same land described iii the plaintiffs’ amended petition, the plaintiffs cannot recover in this action.
3. The institution of the suits of Mrs. Sloan against Henry Goodwin, and of Mrs. Sloan against Marlin McCourtney, the records of which have been given in evidence by the plaintiffs, did not save the running of the statute of limitations against these plaintiffs.
4. If the jury find from the evidence that the deed from John McCourtney and wife was executed and delivered by them to Martin McCourtney at the time it bears date, then the plaintiffs are not entitled to recover in this action, unless they shall have satisfied the jury by the evidence in this case, that said deed was made by malice, fraud, or in collusion, or guile, to the intent, or for the purpose of hindering, delaying or defrauding the creditors of the said John of their lawful claims.
5. The institution or the prosecution of suit in chancery [158]*158■by Martin McCourtney against Thomas Sloan and Solomon G-. Krepps, the record of which has been given in evidence by the plaintiffs in this case, did not prevent or save the running of the statute of limitations against the said plaintiffs in this suit.
The plaintiffs took a non-suit, with leave to move to set it aside; which motion having been overruled, they appealed to this court.
The right of action of the plaintiffs, or those under whom they derive title, occurred on the 30th day of March, 1829. More than twenty years had elapsed from that time to the commencement of this suit, and there being evidence tending to prove an adverse possession by defendants, or those under whom they derive title, during all that time, it rested upon the plaintiffs to show the reasons why that possession was not an effectual bar to the plaintiffs’ action.
They propose several different reasons, which will be considered in the same order in which they were proposed.
1. They insist that, as Martin McCourtney entered into possession under a fraudulent deed, he cannot avail himself of the statute of limitations. This view is supported by a number of decisions in other courts ; but this court has heretofore given so great an effect to twenty years’ possession, uninterrupted and adverse to all the world, (subject to the exceptions mentioned in the statute,) that now it can scarcely be permitted to impair the effect of such a possession by an objection, however meritorious, to its origin. The question is not whether a fraudulent conveyance can be made valid by lapse of time, butwhether (an adverse possession beingshown) the court will permit any inquiry into the manner of its beginning.
So regarding that subject, the first instruction prayed by the plaintiffs was properly refused.
2. They insisted that the time during which the chancery suit of Martin McCourtney against Sloan and Krepps was pending should not be counted against the plaintiffs, and
3. That the statute ceased to run against them from the [159]*159timo that Sloan commenced his two actions of ejectment, thát is, the 11th April, 1842.
These two reasons may be considered together, and without determining what would have been the consequences if both Sloan and Krepps had been, by the proceeding in chancery, enjoined from prosecuting their claims, or if they had both been plaintiffs in the actions of ejectment, it suffices that as Sloan alone was the plaintiff in the ejectments, and Sloan alone was enjoined by the proceeding in chancery, he alone can derive any advantage from them, or be protected in any right by them. Krepps and his heirs cannot avoid the bar of the statute of limitations by reason of the disabilities of his co-tenant Sloan; and as this action is brought jointly by Sloan and the heirs of Krepps, they cannot avail themselves of the privileges which belong only to one of them. (Keeton v. Keeton, 20 Mo. 544.) Therefore, the third and fourth instructions refused the plaintiffs were properly refused, and the third and fifth instructions given for the defendants were properly given.
The first instruction given for the defendants states the general principle correctly, and though the exceptions to the principle are numerous there do not appear to have been any in this case which should have been stated to the jury.
Having thus disposed of the instructions having reference to the defence of the statute of limitations, it is necessary to examine all the others, the giving or refusal of which is assigned for error. The second and fourth, given on motion of the defendants, are in accordance with the plaintiffs’ own view of the case, and contain no error.
The second instruction prayed by the plaintiffs and refused, might well have been given, but its refusal is not such an error as will authorize a reversal of the judgment; the matter of it was not disputed by the defendants, and was in effect given to the jury by the other instructions, particularly the second, given for the plaintiffs.
The fifth instruction asked by the plaintiffs and refused, was inapplicable to the case stated in the petition, which [160]*160charged that the deed of John McCourtney to Martin was void for fraud, but did not assail it because it was not recorded within three months from its date.
Note. — It will be observed that the amended petition in this case has the aspect of an ejectment, or writ of right, setting out the title, and partially of a bill in equity. While the petition alleges that the deed under which the defendants claim was made in fraud of creditors, and therefore void, they pray no relief against it whatever, but simply ask for possession of the land and damages for the detention thereof, so that it is really an ejectment only. The present suit was commenced in 1851, when the act of March 12, 1849, (Acts 1849, p. 51; continued in the ejectment act of 1855, § 10,) was in force, which provides that in an ejectment where there are two or more plaintiffs, they may recover in the same manner as if they had brought separate action, &c., and that it shall be no objection to a recovery that one or more do not prove any interest in the premises, &c. Query: Does it make any difference that one of the plaintiffs, being under disability, may recover by avoiding the bar of the statute, while the other cannot? or, in other words, is the statute confined to the case of failure of proof upon the part of the plaintiff; or does it protect the title which remains good because no valid defence is shown, the defence being apparent only ?
In Keeton v. Keeton, cited, the judgment was reversed and the case remanded, so that the plaintiff might amend, and thus the party under disability be saved the consequences of the suing jointly with a party barred by statute. — Rep.
The plaintiffs offered in evidence several records, which, on motion of the defendants, were excluded by the court. If they had all been given in evidence, the condition of the case before the jury would not have been material^ changed, and, as upon the principles governing the case the judgment below should be affirmed, it is unnecessary to examine into the propriety of the exclusion of that testimony.
Judgment affirmed.
Judges Bay and Dryden concur.