Howell v. Hair , 15 Ala. 194 ( 1849 )

COLLIER, C. J.

The only question in this case is, whether, if property be taken from the possession of the rightful owner, in Florida, by “fraud, force, or felony,” carried to Georgia, and there purchased by a third person, for a valuable consideration, without notice of the circumstances of the abduction, or the want of title, in the party who removed it, the possession of the vendee, if continued, in the latter state, for a longer period, than the statute of limitations of that state prescribes, as a bar to an action for its recovery, will give the vendee a title, on which he may recover the property of the original owner, who “covertly” took it into possession, and removed it into this state ? The solution of this question must depend upon the act of limitations of Georgia, which, so far as is disclosed by the record, is as follows :— “All actions of trespass quare clausum fregit, all actions of trespass, detinue, actions of trover and replevin for taking away goods and cattle, all actions upon accounts and upon the case, (other than such accounts as concern the trade of merchandize, between merchant and merchant, their factors or servants,) all actions of debt grounded upon any lending, or contract without specialty, all actions of debt for arrearages of rent, and all actions of assault, menace and battery, wounding and imprisonment, or any of them, which shall be sued, or brought at any time after the passing of this act, shall be commenced and sued within the time and limitations hereinafter expressed, and not afterwards ; that is td*say¡ the said actions upon the case (other than for slander,) and the said actions for account, and the said actions for trespass, debt, detinue and replevin for goods and cattle, and the said action of trespass quare clausum fregit, within three years next after the passing of this act, or within four years next after the cause of such actions or suits, and not after ; and the said actions of trespass, assault, battery, wounding imprisonment, or any of them, within one year after the passing of this act, or within two years next after the cause of such action or suit, and not after, and the said actions upon the case for words, within six months next after the passing of this act, or within six months next after the words spoken, and not after.”

This enactment, it will be observed, contains no saving or exception, under the influence of which a plaintiff’s right of action is continued beyond the period of prescription, and we are not authorized to presume that any such exists in the legislation of Georgia, applicable to the present case. If there is such a provision, it was incumbent upon the defendant to have produced it, and not upon the plaintiff to negative its existence.

In respect to such statutes, it has been so often decided, as to be now indisputably settled, that an exception will not be implied for the purpose of arresting their operation; that unless there can be found in the statute itself some ground for restraining it, it cannot be restricted by arbitrary addition. Ang. on Lim. 2d ed. 205, 518, et seq. This being the law, the residence of the defendant’s intestate in Alabama, even coupled with his ignorance where the slave might be found, did not relieve him from the necessity of instituting his action in Georgia, within four years after the sale, in order to prevent the operation of the statute we have cited, when applied to such a case as the present. If solicitous for the recovery of his rights, it devolved upon him to inquire diligently to what point his property had been removed ; and if he prosecuted such an inquiry unsuccessfully, it was his misfortune. Bowman v. Wather, 1 How. Rep. (U. S.) 189. If, in the scale of moral justice, his claim was more meritorious than the plaintiff’s — a question not presented for our decision — it is a sufficient answer to say, that the legislature have prescribed a period after which it cannot be made available, and that period had elapsed before the plaintiff’s possession was disturbed.

It is needless to consider whether a possession, commenced and continued by “fraud, force or felony,” can ripen into a title by prescription, as the plaintiff’s possession cannot be assigned to either of these categories. The bill of exceptions explicitly states, that he was a bona fide purchaser for value, without notice that even suspicion rested upon the title he acquired. These facts being conceded, his possession became adverse the very instant it was acquired, and from that time the statuté of Georgia began to run.

Detinue or trover may be maintained upon the mere ground of a previous possession, originally acquired without force or fraud, and enjoyed for a sufficient length of time to make the statute of limitations an available bar. So it has been often decided, that where the possession of personal property has been held in one State for a period prescribed by the laws of that State, beyond which an action cannot be maintained for its recovery, if the possessor afterwards removes into another State, which has a longer period of prescription, the original owner cannot successfully assert a title against him in the latter State. Goodman v. Munks, 8 Port. Rep. 84, and cases there cited. None of these citations'seem to consider it essential to the operation of the act, that the plaintiff resided in the same State, in which the property was enjoyed for the period prescribed, unless the statute contained an exception in favor of persons “beyond seas,” &c.,' but the reverse, if not explicitly decided, is clearly inferable from the reasoning they employ.

If the defendant’s testator had instituted his action in Georgia more than four years after the plaintiff purchased the slave, he must have failed, though during all that time, he resided in Alabama; for the reason that the statute of that State is peremptory in its terms, without any saving in favor of non-residents. The bar then being complete in Georgia, the statute (as we have seen) gave a title which may be asserted in any other State, unless it be held to be unconstitutional or inoperative extra territorivm. We cannot deny to it effect for the first reason; because, not only the constitutionality, but the policy of such enactments, is too well settled to be now controverted. Ang. on Lim. 18 to 20, and cases cited, 2d ed.; McElmoyle v. Cohen, 13 Pet. Rep. 312. The cases collated in Goodman v. Munks, conclusively show that the statute having run in the State where the property was, the title of the possessor is complete every where. Mr. Justice Story, upon this point, says: “Suppose, for instance, (as has occurred) personal property is adversely held in a State for a period beyond that prescribed by the laws of the State, and after that period has elapsed, the possessor should remove into another State which has a longer period of prescription, or is without any prescription; could the original owner assert a title there, against the possessor, whose title, by the local law and the lapse of time, had become final ? It has certainly been thought that in such a case, the title of the possessor cannot be impugned. This subject may be deemed by some persons still open for future discussion. It has however, the direct authority of the supreme court of the United States in its favor, and its correctness has been recently recognized by the court of common pleas in England.” Story’s Confl. of L. § 581, and notes. This being the law, as this court has repeatedly held, it is needless to inquire what influence statutes of limitation professedly upon other interests or causes of action have, when invoked in a foreign jurisdiction. Id., and § 582; Don v. Lippman, 5 Clark & Pin. Rep. 1.

It is however insisted by the defendant, that the statute of this State must be looked to as furnishing the period of limitation, and the time of the plaintiff’s residence in Georgia cannot be computed; and the Sth section of the act of 1802 has been cited as specially applicable. That section declares, that if a party against whom there shall be any cause of action as specified in the act, “shall be out of this State at the time of the cause of such action accruing, or at any time during which a suit might be sustained on such cause of action, then the person or persons who is, or shall be entitled to such action, shall be at liberty to bring the same against such person or persons, after his, her, or their return into this State; and the time of such person’s absence shall not be accounted or taken as a part of the time limited by this act.” Clay’s Dig. 327, § 84. The view we have taken of the effect of the plaintiff’s possession in Georgia, makes this enactment wholly inapplicable: besides, the terms used, indicate that it was intended to apply to defendants who resided, or at least had been in this State; or if to a plaintiff, such must have been the fact in respect to him. If the party had not been here previously, how could he “return.” But we will not extend this view, as the act is foreign to the point in hand.

The case of Towns v. Bardwell, 1 Stew. & Por. Rep. 36, bears no analogy to the present. There, the defendant pleaded the statute of limitations of this State, to an action on a promissory note; to which the plaintiff replied, that the maker of the note resided in North Carolina at the time it was made, and had not resided in Alabama six years before the writ issued. The replication was held good on demurrer, without reference to the 8th section above cited. It is perfectly clear that the Alabama act of limitations did not begin to run until the defendant removed within the State. But if the North Carolina statute had completed a bar to an action there, then the principle settled in Goodman v. Munks would have applied, if it had been relied on. Watson v. Brazeal, 7 Ala. Rep. 451, and Smith v. Bond’s heirs, 8 Ala. Rep. 386, decide no •question in respect to the effect of a foreign statute of limitations, and do not lend any aid to the defence set up in the present case.

The argument that, although the statute designates the action of trover, it does not limit the time within which it must be instituted, cannot be supported. That action is said to belong to the class of actions on the case, and was doubtless so considered by the legislature of Georgia. The result of these views is, that the circuit court erred in the charge to the jury. Its judgment is consequently reversed, and the cause remanded.