Limitation Laws.

Notwithstanding the protection which the law gives to vested rights, it is possible for a party to debar himself of the right to assert the same in the courts, by his own negligence or laches. *If one who is dispossessed "be negligent for a [* 365] long and unreasonable time, the law refuses afterwards to lend him any assistance to recover the possession merely, both to punish his neglect (nam leges vigilantibus, non dormientibus subveniunt), and also because it is presumed that the supposed wrong-doer has in such a length of time procured a legal title, otherwise he would sooner have been sued."1 Statutes of limitation are passed which fix upon a reasonable time within which a party is permitted to bring suit for the recovery of his rights, and which, on failure to do so, establish a legal presumption against him that he has no rights in the premises. Such a statute is a statute of repose.2 Every government is under obligation to its citizens to afford them all needful legal remedies; but it is not bound to keep its courts open indefinitely for one who neglects or refuses to apply for redress until it may fairly be presumed that the means by which the other party might disprove his claim are lost in the lapse of time.1

When the period prescribed by statute has once run, so as to cut

also opinion by Morgan, J., in the same case, pp. 314-317, and the opinions of the several judges in Wynehamer v. People, 13 N. Y. 395, 419, 434, and 468. Compare Campbell v. Evans, 45 N. Y. 356; Cook v. Gregg, 46 N. Y. 439.

1 3 Bl. Com. 188; Broom, Legal Maxims, 857.

* Such a statute was formerly construed with strictness, and the defence under it was looked upon as unconscionable, and not favored; but Mr. Justice Story has well said, it has often been matter of regret in modern times that the decisions had not proceeded upon principles better adapted to carry into effect the real objects of the statute; that instead of being viewed in an unfavorable light as an unjust and discreditable defence, it had not received such support as would have made it what it was intended to be, emphatically a statute of repose. It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against State demands after the true state of the transaction may have been forgotten, or be incapable of explanation by reason of the death or removal of witnesses. Bell v. Morrison, 1 Pet. 360. See Leffingwell v. Warren, 2 Black, 599.

* Call v. Hagger, 8 Mass. 430.

Beal v. Nason, 2 Shep. 344; Bell v. Morrison, 1 Pet. 360; Stearns v. Gittings, 23 Ill. 387; State v. Jones, 21 Md. 437.

off the remedy which one might have had for the recovery of property in the possession of another, the title to the property, irrespective of the original right, is regarded in the law as vested in the possessor, who is entitled to the same protection in respect to it which the owner is entitled to in other cases. A subsequent repeal of the limitation law could not be given a retroactive effect, so as to disturb this title. It is vested as completely and perfectly, and is as safe from legislative interference as it would have been if it had been perfected in the owner by grant, or any species of assurance.2

All limitation laws, however, must proceed on the theory that the party, by lapse of time and omissions on his part, has forfeited his right to assert his title in the law. Where they relate [* 366] to * property, it seems not to be essential that the adverse claimant should be in actual possession; but one who is himself in the legal enjoyment of his property cannot have hist rights therein forfeited to another, for failure to bring suit against that other within a time specified to test the validity of a claim which the latter asserts, but takes no steps to enforce. It has consequently been held that a statute which, after a lapse of five years, makes a recorded deed purporting to be executed under a statutory power conclusive evidence of a good title, could not be

1 Brent v. Chapman, 5 Cranch, 358; Newby's Adm'rs v. Blakey, 3 H. & M. 57; Parish v. Eager, 15 Wis. 532; Baggs's Appeal, 43 Penn. St. 512; Leffingwell v. Warren, 2 Black, 599. See cases cited in next note.

See Knox v. Cleveland, 13 Wis. 249; Sprecker v. Wakelee, 11 Wis. 432; Pleasants v. Rohrer, 17 Wis. 557; Moor v. Lisce, 29 Penn. St. 262; Morton v. Sharkey, McCahon (Kan.), 113; McKinney v. Springer, 8 Blackf. 506; Stipp v. Brown, 2 Ind. 647; Wires v. Farr, 25 Vt. 41; Davis v. Minor, 1 How. (Miss.) 183; Holden v. James, 11 Mass. 396; Lewis v. Webb, 3 Greenl. 326; Woart v. Winnick, 3 N. H. 473; Martin v. Martin, 35 Ala. 560; Briggs v. Hubbard, 19 Vt. 86; Thompson v. Caldwell, 3 Lit. 137; Wright v. Oakley, 5 Met. 400; Couch v. McKee, 1 Eng. 495; Atkinson v. Dunlap, 50 Me. 111; Girdner v. Stephens, 1 Heis. 280; s. c. 2 Am. Rep. 700; Bradford v. Shine's Adm'r, 13 Fla. 393; s. c. 7 Am. Rep. 239. But the statute of limitations may be suspended for a period as to demands not already barred. Wardlaw v. Buzzard, 15 Rich. 158; Caperton v. Martin, 4 W. Va. 138; s. c. 6 Am. Rep. 270; Bender v. Crawford, 33 Tex. 745; s. c. 7 Am. Rep. 270:

3 Stearns v. Gittings, 23 Ill. 389; per Walker, J., Sturgis v. Crowninshield, 4 Wheat. 207, per Marshall, Ch. J.; Pearce v. Patton, 7 B. Monr. 162; Griffin v. McKenzie, 7 Geo. 163; Coleman v. Holmes, 44 Ala. 125.

Stearns v. Gittings, 23 Ill. 389; Hill v. Kricke, 11 Wis. 442.

valid as a limitation law against the original owner in possession of the land. Limitation laws cannot compel a resort to legal proceedings by one who is already in the complete enjoyment of all he claims.1

All statutes of limitation, also, must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing right of claimants without affording this opportunity: if it should attempt to do so, it would be not a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions. It is essential that such statutes allow a reasonable time after they take effect for the commencement of suits upon existing causes of action; 2 though what shall be considered a

'Groesbeck v. Seeley, 13 Mich. 329. In Case v. Dean, 16 Mich. 12, it was held that this statute could not be enforced as a limitation law in favor of the party in possession, inasmuch as it did not proceed on the idea of limiting the time for bringing suit, but by a conclusive rule of evidence sought to pass over the property to the claimant under the statutory sale in all cases, irrespective of possession. See also Baker v. Kelly, 11 Minn. 480. The case of Leffingwell v. Warren, 2 Black, 599, is contra. That case follows Wisconsin decisions. In the leading case of Hill v. Kricke, 11 Wis. 442, the holder of the original title was not in possession; and what was decided was that it was not necessary for the holder of the tax title to be in possession in order to claim the benefit of the statute; ejectment against a claimant being permitted by law when the lands were unoccupied. This circumstance of possession or want of possession in the person whose right is to be extinguished seems to us of vital importance. How can a man justly be held guilty of laches in not asserting claims to property, when he already possesses and enjoys the property? The old maxim is, "That which was originally void cannot by mere lapse of time be made valid;" and if a void claim by force of an act of limitation can ripen into a conclusive title as against the owner in possession, the policy underlying that species of legislation must be something beyond what has been generally supposed.

So held of a statute which took effect some months after its passage, and which, in its operation upon certain classes of cases, would have extinguished adverse claims unless asserted by suit before the act took effect. Price v. Hopkin, 13 Mich. 318. See also Call v. Hagger, 8 Mass. 423; Proprietors, &c. v. Laboree, 2 Greenl. 294; Society, &c. v. Wheeler, 2 Gall. 141; Blackford v. Peltier, 1 Blackf. 36; Thornton v. Turner, 11 Minn. 339; Osborn v. Jaines, 17 Wis. 573; Morton v. Sharkey, McCahon (Kan.), 113; Berry v. Ramsdell, 4 Met. (Ky.) 296. In the last case cited it was held that a statute which only allowed thirty days in which to bring action on an existing demand was unreasonable and void. And see what is said in Auld v. Butcher, 2 Kansas, 135. But a statute giving a new remedy against a railroad company for an injury, may limit to a short time, e. g., six months, the time for bringing suit. O'Bannon v. Louisville, &c., R. R. Co., 8 Bush, 318.

reasonable time must be settled by the judgment of the [367] legislature, into the wisdom of *whose decision in establishing the period of legal bar it does not pertain to the jurisdiction of the courts to inquire.1

2

Alterations in the Rules of Evidence.

It must also be evident that a right to have one's controversies determined by existing rules of evidence is not a vested right. These rules pertain to the remedies which the State provides for its citizens; and generally in legal contemplation they neither enter into and constitute a part of any contract, nor can be regarded as being of the essence of any right which a party may seek to enforce. Like other rules affecting the remedy, they must therefore at all times be subject to modification and control by the legislature; and the changes which are enacted may lawfully be made applicable to existing causes of action, even in those States in which retrospective laws are forbidden. For the law as changed would only prescribe rules for presenting the evidence in legal controversies in the future; and it could not therefore be called retrospective even though some of the controversies upon which it may act were in progress before. It has accordingly been held in New Hampshire that a statute which removed the disqualification of interest, and allowed parties to suits to testify, might lawfully apply to existing causes of action. So may a statute which mod

Stearns v. Gittings, 23 Ill. 387; Call v. Hagger, 8 Mass. 430; Smith v. Morrison, 22 Pick. 430; Price v. Hopkin, 13 Mich. 318; De Moss v. Newton, 31 Ind. 219. But see Berry v. Ramsdell, cited in preceding note.

It may be remarked here, that statutes of limitation do not apply to the State unless they so provide expressly. Gibson v. Choteau, 13 Wall. 92. And State limitation laws do not apply to the United States. United States v. Hoar, 2 Mas. 311; People v. Gilbert, 18 Johns. 228. And it has been held that the right to maintain a nuisance cannot be acquired under the statute. State v. Franklin Falls Co., 49 N. H. 240.

2 Kendall v. Kingston, 5 Mass. 533; Ogden v. Saunders, 12 Wheat. 349, per Marshall, Ch. J.; Fales v. Wadsworth, 23 Me. 533; Karney v. Paisley, 13 Iowa, 89; Commonwealth v. Williams, 6 Gray, 1; Hickox v. Tallman, 38 Barb. 608; Webb v. Den, 17 How. 576; Pratt v. Jones, 25 Vt. 303. See ante, p. 288 and

note.

3 Rich v. Flanders, 39 N. H. 323. A very full and satisfactory examination of the whole subject will be found in this case. To the same effect is Southwick v. Southwick, 49 N. Y. 510.

ifies the common-law rule excluding parol evidence to vary the terms of a written contract;1 and a statute making the protest of a promissory note evidence of the facts therein stated.2 These and the like cases will sufficiently illustrate the general rule, that the whole subject is under the control of the legislature, which prescribes such rules for the trial and determination as well of existing as of future rights and controversies as in its judgment will most completely subserve the ends of justice.3

*A strong instance in illustration of legislative control [*368] over evidence will be found in the laws of some of the States in regard to conveyances of lands upon sales to satisfy delinquent taxes. Independent of special statutory rule on the subject, such conveyances would not be evidence of title. They are executed under a statutory power; and it devolves upon the claimant under them to show that the successive steps which under the statute lead to such conveyance have been taken. But it cannot be doubted that this rule may be so changed as to make a tax deed prima facie evidence that all the proceedings have been regular, and that the purchaser has acquired under them a complete title. The burden. of proof is thereby changed from one party to the other; the legal presumption which the statute creates in favor of the purchaser being sufficient, in connection with the deed, to establish his case, unless it is overcome by countervailing testimony. Statutes making defective records evidence of valid conveyances are of a similar nature; and these usually, perhaps always, have reference to records before made, and provide for making them competent evidence where before they were merely void. But they devest no title, and are not even retrospective in character. They merely establish what the legislature regards as a reasonable and just rule

1 Gibbs v. Gale, 7 Md. 76.

2 Fales v. Wadsworth, 23 Me. 553.

3 Per Marshall, Ch. J., in Ogden v. Saunders, 12 Wheat. 249; Webb v. Den, 17 How. 577; Delaplaine v. Cook, 7 Wis. 54; Kendall v. Kingston, 5 Mass. 534; Fowler v. Chatterton, 6 Bing. 258.

Hand v. Ballou, 12 N. Y. 543; Forbes v. Halsey, 26 N. Y. 53; Delaplaine v. Cook, 7 Wis. 54; Allen v. Armstrong, 16 Iowa, 508; Adams v. Beale, 19 Iowa, 61; Amberg v. Rogers, 9 Mich. 332; Lumsden v. Cross, 10 Wis. 289; Lacey v. Davis, 4 Mich. 140; Wright v. Dunham, 13 Michigan, 414; Abbott v. Lindenbower, 42 Mo. 162; s.c. 46 Mo. 291. The rule once established may be abolished, even as to existing deeds. Hickox v. Tallman, 38 Barb. 608.

5 See Webb v. Den, 17 How. 577.