Coleman v. Holmes , 44 Ala. 124 ( 1870 )

B. F. SAFFOLD, J.

Statutes of limitation are serviceable, for the protection of debtors against stale demands, in discouragement of the laches of creditors, to restrain litigation, and for the purpose of quieting titles and giving proper latitude to the -disposition of property. They are said to affect the remedy and not the debt in actions ex contractu, but in reference to property, the prescription completed vests the title, extinguishing the adverse right as well as the remedy. Too nice a distinction has perhaps been made in this respect. The application of the' lex fori to them probably originated from the principle of comity on which the courts of one nation enforced the contracts made in another. Under the restrictions of our Federal and State constitutions a statute of limitations which should not give a reasonable time after its passage for the commencement of suits upon existing causes of action, would be void. — Cooley on Const. Lim. 366. So, a subsequent repeal of the limitation law under which title to property had been acquired could not be given a retroactive effect to disturb this title. — Brent v. Chapman, 5 Cranch, 358; Leffingwell v. Warren, 2 Black. 599; Cooley on Const. Lim. 365.

The convention of 1865 ordained that in computing the time necessary to create the bar of the statute of limitations and non-claim, the time elapsing between the 11th of January, 1861, and the passage of the ordinance shall nob be estimated. — Rev. Code, p. 53; Ord. 5, § 2. The legislature, on the 4th of December, 1868, repealed this section.— Acts 1868, p. 391.

Both of these enactments, on account of their sweeping character, are amenable to one or the other of the constitutional prohibitions above referred to. It is, however, insisted, with strong array of authority to support it, that the ordinance may revive the remedy, already barred, on contracts for the payment of money, as well as efface the specified time elapsed, on those not barred at the date of its passage. I doubt the wisdom and justice of the distinction which devotes the property, undoubtedly his, of a debtor to the payment of a debt he may not owe, while it leaves a trespasser in possession of property to which, he may be willing to admit, his only title is the prescription.

It is unnecessary to determine the effect of this legislation, as the conclusion to which the court has come may be maintained on other incontestable grounds of justice and precedent.

Section 2924 of the Revised Code suspends the statute of limitations during the continuance of war between the United States and a foreign power, when either party to a contract is a subject or citizen thereof. Section 2908 deducts the period of absence from the State during which a suit might otherwise have been commenced against a party. There is no express provision of our law for a case where the courts have been interrupted by civil commotion, or for one, like this, when the rightful power had been excluded from the State by force, and another, hostile to it and insurrectionary, substituted instead, We must therefore resort to analogy and a sense of justice for a proper determination of what is law.

, The spirit of section 2908 is, that a party against whom a suit may have been commenced, must have been all the time within the jurisdiction of the courts of the State having cognizance of the cause of action, and not merely within the territorial limits of the State. In the case of Smith, Adm'r, v. The Heirs of Bond, (8 Ala. 386,) the defendant had left the State, but had returned, and resided in the Choctaw nation within the State and in what is now called Sumter county, but without the jurisdiction of the courts of the State. This court held, that the debtor, to avail himself of the lapse of time, must have been all the time within the jurisdiction of the State so that he might have been sued. In the case of Slight v. Kane, (l Johns. Cases, p. 76,) the question was, whether the defendant was in the State of New York at a particular time. The portion of the State in which he was, was within the British lines during the war of the revolution. The court held, that he was not within the State within the meaning of the statute, because he was out of its jurisdiction, where the authority which was exercised was not derived from the State. No writ of the State could run there, consequently no suit could be brought against him there.

In Hanger v. Abbott, (6 Wall. 532,) the supreme court of the United States decided that the time during which the courts in the lately rebellious States were closed to the citizens of the loyal States, is, in suits brought by them since> to be excluded from the computation of the time fixed by statutes of limitation within which suits may be brought'; though exception for such cause be not provided for in the statutes. Justice Clifford delivered an elaborate opinion, which applies as fitly to this case as to that. We know judicially that at the time this note became due, and for more than four years afterwards, the courts of this State were in a position of hostility and revolt towards the United States and the Federal constitution. The courts of the rightful State government when restored, can not, with any propriety, hold a citizen bound to sue in the courts set up by the government of force in opposition to the rightful government.

The ordinance of September 21,1865, may be considered as a declaration by representatives of the people that the State courts, under proper authority, were again open for the transaction of business, and that the laws were taking their due course. It has been so regarded and acquiesced in by the people since that time.

We, therefore, decide that the statute of limitations was suspended in this State from thellth day of January, 1861, the date when the relations of the State with the United States were disturbed, to the 21st day of September, 1865 ; that being the period within which no legal civil courts existed in which the people of the State were compellable to have their cases adjudicated.

As six years had not intervened between the maturity of the note and the commencement of the suit, after deducting the period above mentioned, the judgment of the circuit court is reversed and the cause remanded.