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THE TIME OF COMMENCING ACTIONS FOR THE RECOVERY
OF REAL PROPERTY.
SECTION 68. Limitation of actions for the recovery of real property.
$ 68. The provisions of the Revised Statutes, contained in the article entitled “Of the time of commencing actions relating to real property,” shall, until otherwise provided by statute, continue in force, and be applicable to actions for the recovery of real property.
The provisions proposed to be continued in force, are contained in 2 R. S. 3d ed. 391–393, séc. 1-15.
THE TIME OF COMMENCING ACTIONS, OTHER THAN FOR THE
RECOVERY OF REAL PROPERTY.
SECTION 69. Periods of limitation, prescribed.
70. Within twenty years.
§ 69. The periods prescribed in section 67, for the commencement of actions other than for the recovery of real property, shall be as follows:
§ 70. Within twenty years :
1. An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States.
2. An action upon a sealed instrument for the payment
This provision, as far as it goes, is founded on 2 R. S. 3d ed. 398, sec. 46–45. By those sections it was provided, that
presumption of payment should apply to all judgments of a toort of record in this state rendered before the third of April, 1821, and to all such judgments rendered before the chapter containing the provisions took effect as a law, in the same manner as the presumption applicable to sealed instruments;" (sec. 46;) that “every judgment and decree thereafter rendered in any court of this state, or of the United States, or of any other state or territory within the United States, should be presumed to have been paid and satisfied, after the expiration of twenty years from the time of the signing and filing of the judgment; bet tbat in a suit at law or in equity, in which the party against wbom the judgment or decree was rendered, or his heirs or persodal sepresentatives, should be a party, the presumption might be repelled by proof of payment, or of writien acknowledgment of inilebtešlness, made within twenty years, of some part of the amount recovered by the judgment or decree; and that in all other cases it should be conclusive ;” (sec. 47 ;) and that after the expiration of twenty years from the time a right of action should accrue upon a sealed instrument for the payment
of mosey, it should be presumed to have been extinguished by payment; but that the presumption might be repelled by proof of payment of some part, or by proof of a written acknowledgment of the right of action within that period. (Sec. 48.)
The section proposed differs from the existing statutes, in two important particulars.
First, it makes the lapse of twenty years an absolute bar, instead of a presumption of payment merely; and secondly, it excludes from the limitation, an action upon a judgment or decree of a court of this state, so as to conform it to the abolition s an action in any court of this state, upon such a judgment.
The propriety of the last of these changes is obvious, if the principle of abolishing actions upon judgments of the courts of his state be adopted.
The first involves only the expediency of making the lapse of twenty years an absolute bar, instead of leaving it as at present, a mere presumption of payment.
At common law, there was a presumption that a judgment debt, as well as debts of every other description, had been paid, after the lapse of twenty years, unless the creditor could show something to the contrary, to take the case out of the general rule. (Opinion of Chancellor Walworth, in Miller v. Smith's ex'rs, 16 Wend. 431.) The existing provisions, above referred to, merely declared the common law rule in this respect, by providing that the presumption of payment should apply to the cases enumerated in them. There seems to be no good reason, why the limitation of actions of this nature should not be as fixed and certain as in other cases-saving, of course, the rights of the plaintiff, either as respects disabilities to sue, or a revival of the debt by a new promise, as hereafter provided. The English Commissioners on the Practice and Proceedings of the Superior Courts of Common Law, in their Third Report, (p. 15, 16,) take this view of the subject, and recommend, in relation to actions on judgments, as well as on bonds and other deeds, (to which latter, as well as to actions on judgments there is no fixed legal limitation, but merely a presumption of payment,) that such limitation should be established. In referring to the subject of the statute of limitations, they say:-" This appears to be, in one respect, materially defective. Actions on simple contracts are subjected by statute, to an express limitation of six years. But with respect to bonds and other deeds, judgments and other matters of record, no statute of limitation exists. There is, consequently, no lapse of time, however long, which can be pleaded as a bar to the right of action upon them.
. But when a bond has been given, or a judgment has been in existence as much as twenty years, and no proof is given that interest has been paid, or the debt acknowledged within that period, nor any other circumstance shown, tending to rebut the supposition of payment, it has been thought reasonable in practice, to establish the rule that payment must be presumed. When, therefore, the bond or record is of that age, and no direct evidence can be given of payment, the course is, neverthe
less, to plead that it has been paid, and to rely upon the pre(P. & p.)
sumption. This is, however, an inconvenient substitute for a positive limitation. The shortest period for presumption, noi being fixed by any absolute rule of law, is subject to variation; for, in some cases, less than twenty years has been held to be sufficicnt, when other circumstances existed, however slight, to fortify the presumption.
“ This uncertainty is objectionable, and it would be better that parties holding such securities, should know precisely for what period they may forbear to enforce them, without affording any material ground for the presumption of payment. Besides, it has been truly stated, that the law of limitation is a wise and beneficial law, and designed not merely to raise a presumption of payment of a just debt, from lapse of time, but to afford security against stale demands, aster the true state of the transaction may have been forgotten, or become incapable of explanation, by the death or removal of witnesses.' (By Story, J., in Bell v. Morrison, i Peters' U. S. Rep. 360.) There are many cases, therefore, in which a jury may be satisfied that payment on a bond or judgment twenty years old has not in fact been made, when nevertheless, according to the true spirit of the law of limitation, the plaintiff ought not to be allowed to recover Yet in such cases the jury are bound, under a plea of payment, to find the same in his favor. For these and other reasons, we think it right to recommend the establishment, by statute, of a positive bar; and the period of twenty years seems that which is best adapted to the case, both because it is already recognized in practice, and because an analogy is thus preserved to the law of limitation, in matters which concern the realty.”
An additional reason for making the lapse of twenty years an absolute limitation, and not a mere presumption, is afforded by the existing statute, (2 R. S. 3d ed. 398, sec. 47,) which makes the presumption conclusive, unless repelled by payment, or a written acknowledgment within the twenty years.
$71. Within six years:
1. An action upon a contract, obligation or liability, express or implied; excepting a sealed instrument for the payment of money.
This is a substitute for the provision contained in 2 R. S. 3d ed. 394, sec. 18, by which the limitation of six years is extended to "all actions of debt founded upon any contract, obligation or liability not under seal, excepting such as are brought upon the judgment or decree of some court of the United States, or of this or some other state;” to “all actions upon judgments rendered in any court, not being a court of record;" to " all actions of debt for arrearages of rent not reserved by some instrument under seal;" and to "all actions of account, assumpsit or on the case, founded on any contract or liability, express or implied.”
The exception as to judgments, is rendered unnecessary by the provision contained in section 70.
The existing law is also changed, by bringing all cases arising on contract, excepting on judgments and on sealed instruments other than for the payment of money, within the limitation of six years.
2. An action upon a liability created by statute, other than a penalty or forfeiture.
This provision is new, and is intended to legalize a distinction, just in itself, and sustained by the weight of authority, upon the construction of the existing statutes, (although somewhat obscured by a discrepancy in the cases,) between a liability in the nature of a contract, created by statute, and a penalty or forfeiture. In order to render the object of this provision more clear, it must be taken in connection with the second subdivision of section 72, which applies the limitation of three years to “ actions upon a statute, for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the people of this state,"--with the second subdivision of section