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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, 348.

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

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.3 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. Franklin Falls Co., 49 N. H. 240.

State v.

* 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; Kendal v. Kingston, 5 Mass. 534; Fowler v. Chatterton, 6 Bing. 258.

4 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.

See Webb v. Den, 17 How. 577.

for the presentation by the parties of their rights before the courts in the future.

But there are fixed bounds to the power of the legislature over this subject which cannot be exceeded. As to what shall be evidence, and which party shall assume the burden of proof in civil cases, its authority is practically unrestricted, so long as its regulations are impartial and uniform; but it has no power to establish rules which, under pretence of regulating the presentation of evidence, go so far as altogether to preclude a party from exhibiting his rights. Except in those cases which fall within the familiar doctrine of estoppel at the common law, or other cases resting upon the like reasons, it would not, we apprehend, be in the power of the legislature to declare that a particular item of evidence should preclude a party from establishing his rights in opposition

to it. In judicial investigations the law of the land [* 369] requires an opportunity for a trial; and there can be no

trial if only one party is suffered to produce his proofs. The most formal conveyance may be a fraud or a forgery; public officers may connive with rogues to rob the citizen of his property; witnesses may testify or officers certify falsely, and records may be collusively manufactured for dishonest purposes; and that legislation which would preclude the fraud or wrong being shown, and deprive the party wronged of all remedy, has no justification in the principles of natural justice or of constitutional law. A statute, therefore, which should make a tax-deed conclusive evidence of a complete title, and preclude the owner of the original title from showing its invalidity, would be void, because being not a law regulating evidence, but an unconstitutional confiscation of property.2

1 Tift v. Griffin, 5 Geo. 185; Lenz v. Charlton, 23 Wis 482; Conway . Cable, 37 Ill. 89; ante, 362, note; post, 382-83 and notes.

2 Groesbeck v. Seeley, 13 Mich. 329; Case v. Dean, 16 Mich. 13; White v. Flynn, 23 Ind. 46; Corbin v. Hill, 21 Iowa, 70; Abbott v. Lindenbower, 42 Mo. 162; s. c. 46 Mo. 291. And see the well-reasoned case of McCready v. Sexton, 29 Iowa, 356. Also, Wright v. Cradlebaugh, 3 Nev. 349. As to how far the legislature may make the tax deed conclusive evidence that mere irregularities have not intervened in the proceedings, see Smith v. Cleveland, 17 Wis. 556; Allen v. Armstrong, 16 Iowa, 508. Undoubtedly the legislature may dispense with mere matters of form in the proceedings as well after they have taken place as before; but this is quite a different thing from making tax deeds conclusive on points material to the interest of the property owner. See, further, Wantlan v. White, 19 Ind. 470; People v. Mitchell, 45 Barb. 212; McCready v. Sexton,

And a statute which should make the certificate or opinion of an officer conclusive evidence of the illegality of an existing contract would be equally nugatory; though perhaps if parties should enter into a contract in view of such a statute then existing, its provisions might properly be regarded as assented to and incorporated in their contract, and therefore binding upon them.2

Retrospective Laws.

Regarding the circumstances under which a man may be said to have a vested right to a defence against a demand made by another, it is somewhat difficult to lay down a comprehensive rule which the authorities will justify. It is certain that he who has satisfied a demand cannot have it revived against him, and he who has become released from a demand by the operation of the statute of limitations is equally protected. In both cases the demand is

supra. It is not competent for the legislature to compel an owner of land to redeem it from a void tax sale as a condition on which he shall be allowed to assert his title against it. Conway v. Cable, 37 Ill. 82; Hart v. Henderson, 17 Mich. 218; Wilson v. McKenna, 52 Ill. 44; Reed v. Tyler, 56 Ill. 292; Dean v. Borchsenius, 30 Wis. 236. But it seems that if the tax purchaser has paid taxes and made improvements, the payment for these may be made a condition precedent to a suit in ejectment against him. Pope v. Macon, 23 Ark. 644. The case of Wright v. Cradlebaugh, 3 Nev. 349, is valuable in this connection. "We apprehend," says Beatty, Ch. J., "that it is beyond the power of the legislature to restrain a defendant in any suit from setting up a good defence to an action against him. The legislature could not directly take the property of A. to pay the taxes of B. Neither can it indirectly do so by depriving A. of the right of setting up in his answer that his separate property has been jointly assessed with that of B., and asserting his right to pay his own taxes without being encumbered with those of B. . . . Due process of law not only requires that a party shall be properly brought into court, but that he shall have the opportunity when in court to establish any fact which, according to the usages of the common law or the provisions of the Constitution, would be a protection to him or his property." See Taylor v. Miles, 5 Kansas, 498; s. c. 7 Am. Rep. 558.

1 Young v. Beardsley, 11 Paige, 93. An act to authorize persons whose sheep are killed by dogs, to present their claim to the selectmen of the town for allowance and payment by the town, and giving the town after payment an action against the owner of the dog for the amount so paid, is void, as taking away trial by jury, and as authorizing the selectmen to pass upon one's rights without giving him an opportunity to be heard. East Kingston v. Towle, 48 N. H. 57; s. c. 2 Am. Rep. 174.

2 See post, p. 403, note.

3 Ante, p. 365, note 5, and cases cited.

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