Casey v. Anderson , 17 Mont. 167 ( 1895 )

De Witt, J.

Were it not for the alleged interruption of the running of the statute of limitations, the time which defendants offered to prove that there had been an adverse possession would have been ample to bar the plaintiff’s recovery. The question now before us is whether the plaintiff can take advantage of his alleged interruption of the statute of limitations.

In the case of Armstrong v. Morrill, 14 Wall. 120, the title of plaintiff was forfeited for the nonpayment of taxes, by an act of the legislative assembly of the state of Yirginia. Some nine years afterwards, he, or his predecessors, were allowed, by a private act of the legislature, to redeem the lands, from said forfeiture. It was held by the majority of the supreme court of the United States that this forfeiture to the state broke the continuity. of the adverse possession of defendant and that such adverse possession, having- been thus broken, was neither restored upon the redemption, so as to be continuous in law, nor was it so affected that the persons holding adversely. could .tack-Jthe adverse possession, prior to the forfeiture to the adverse possession subsequent to the redemption, and so make out a term of adverse possession which the statute required in order to give title.

Without analyzing the decision of the court in that case, as applied to the facts herein, we are of opinion that the facts now before us come within the law as declared in the dissenting .opinion filed in that, .case :by Mr. Justice Strong, with whom concurred Messrs. Justices Davis and Bradley. The facts here differ from those in Armstrong v. Morrill. In that case-the title had become absolutely forfeited,' and had unquestionably and completely reverted to the state of Virginia. It was wholly out of the plaintiff’s predecessors, and they obtained title ’ again, many years afterwards, by virtue of a private. act of the legislature allowing them to redeem. The court held that the limitation must commence to run from the time of acquiring this new title.

But in the case at bar the alleged interruption of plaintiff’s title was by a judgment by the United States against his predecessors, which was subject to review by motion for new trial and appeal. The motion for new trial was made within the statutory time, and within eight days after the judgment, and granted within a few months. This seems to us to be a different state of facts than the absolute and unqualified forfeiture found in Armstrong v. Morrill. But, even with the facts in that case, the dissenting opinion held as follows :

“Concede that the plaintiff’s right of entry was suspended by the forfeiture, still it revived when the lands were redeemed, and if the defendants’ possession was adverse to his right, and continuous during If- years in which he might have entered or asserted his right by" action, I am unable to perceive why he is not barred. The fact that an owner’s right of .entry has been suspended, after the statute -has commenced running against him, can be of no importance, if he has had the statutory period within which to bring his action against the disseisor in adverse possession. If this is not so, then war might not only suspend the running of the statute, but render of no effect all adverse possession held before the war commenced. This has never been asserted. It is the uninterrupted, adverse possession alone which creates the bar. It is not essential to it that the right to enter or to bring suit should have suffered no interruption: Every reason for applying the statute which would have existed had there been no forfeiture, and consequently no suspension of the plaintiff’s right to.enter, exists in full force now. Statutes of limitation are dictated, mainly, by two considerations : One, that it is public policy to discourage stale claims; and the other, that it is not to be presumed that one having a right would delay asserting it for a long period in full view of another’s wrongful interference with it. Hence, the period was fixed at 14 years, in Virginia and West Virginia, within which a party out of possession may bring his action of ejectment against one in possession holding adversely. Assuming that the jury would have found the facts as stated in the points proposed, the plaintiff has had that entire period; and the public policy, as well as the presumptions arising from his laches, which gave birth to the statute, apply in all their potency to his case. And the statute is not only a bar to the assertion of a right of entry upon one in adverse possession after the expiration of the period fixed, but it gives a title to the disseisor. The law casts title upon him, and assures to him the privilege of asserting it, either aggressively or defensively. For the acquisition of this right the defendants have done all that the law contemplates. They entered under a claim of exclusive right, — that is adversarily,— and they held that adversary possession continuously until this suit was brought. That the Gallatin title was forfeited during their occupancy was no fault of theirs. It was due to the wrongful neglect of the plaintiff, or those under whom he claims, to enter the lands upon the commissioners’ books, and to pay the taxes. Can he now make use of a forfeiture, caused by his own neglect, to obtain or preserve rights which, confessedly would have no existence but for his neglect ? Yet this was, in substance, the instruction given to the jury. His laches, resulting in a forfeiture, is to have the same effect as an entry would have had, or as action brought. Thus he is allowed to secure an advantage through his own default. Thus he is allowed to make use of his own unlawful nonfeasance to break the continuity of the defendants’ hostile possession. I cannot assent to such a view of the law. ’ ’

We will pause here for a moment to remark that the question now before us is not as to when the statute begins to run. It has long been adjudged in this court, — although the writer of this opinion, with whom is Mr. Justice Hunt, agrees to such adjudication only on the ground of stare decisis (Mayer v. Carothers, 14 Mont. 274; Clark v. Bernard, 15 Mont. 176)— that the statute of limitations commences to run against a mining claim only upon the issuance of a United States patent therefor. That question is not here involved. It can be conceded that the statute commenced to run when the Hesperus patent was issued in 1881.

The question now is whether the plaintiff can take advantage of the alleged interruption in the running of the statute caused by the judgment óf the United States against the Hesperus patentees. And in this connection the reasoning of the dissenting opinion above quoted from Armstrong v. Morrill is in point. As remarked in that opinion, so it is true here, that the adverse possession of the defendants, as offered to be proved, was wholly uninterrupted. Thew acts were continuous. Their possession was continuous. The only interruption was what plaintiff claims was an interruption in his title. He claims that the title was divested from his predecessors for a few months or days, and then revested. But may he rely upon that fact ? Justice Strong said, “That the Gallatin title was forfeited during- defendants’ occupancy was no fault of theirs.” So here, that the Hesperus title was adjudged a fraud for a time during defendants’ occupancy was no fault of theirs. Paraphrasing the language of Judge Strong to meet the facts in this case, we may say: “The interruption of the Hesperus title was due to the plaintiff alone. He, or, rather, his predecessors, were charged with fraud against the United States in obtaining the patent. They were adjudged guilty of such fraud. Can they now make use of this judgment of fraud against them to obtain or preserve rights which, confessedly, would have no existence but for this judgment of fraud ? The judgment in the ‘ United States against the Hesperus patentees declaring the-patent fraudulent, would, from plaintiff’s point of view,'have the-same effect as would an entry made or an action brought by him or his predecessors.- -Thus he is ■allowed' to 'secure an-advantage through his own fault. Thus he is allowed' to make use of a judgment declaring his predecessors guilty of a fraud to break the continuity of defendants’ hostile possession. ’ ’

The case seems to resolve itself into this dilemma: The Hesperus patentees were adjudged guilty of fraud in obtaining the patent. This judgment, of course, was afterwards set aside. But plaintiff, as their successor, seeks to take advantage of this judgment of fraud against his predecessors to now take himself out of the statute of limitations. The other horn of the dilemma is: If that judgment of fraud was incorrect (as, perhaps, it may be said to have been by reason of its having been set aside), then the full period of the statute has run.

We are of opinion that the plaintiff cannot take advantage of that judgment against his predecessors, declaring them guilty of fraud, in order to obtain an advantage which he confessedly would not have but for such judgment.

While it is perfectly true that the statute of limitations does not run against the government, and that this question has been settled for centuries, still it is also true that this is a mat-' ter to be” taken advantage of by the United States, and not by private parties where only private rights are involved. In this case the statute of limitations was not running against the United States^ but was running against the title, claims, or pretensions of this plaintiff and his predecessors only. It was running against the claim, whatever it may have been, of the plaintiff and his predecessors for these premises.

It was held in U. S. v. Beebe, 127 U. S. 338, 8 Sup. Ct. 1083: “The United States are not bound by any statute of limitations, nor barred by .laches of their officers ..in a suit brought by them, as sovereign, to enforce a public right, or to assert a public interest; but where they are formal parties to the suit, and the real remedy sought in their name is the enforcement of a private right for the benefit of a private party, and no interest of the United States is involved, a court of equity will not be restrained from administering the equities between the real parties by any exemption of the government, designed for the protection of the rights of the United States alone.” See, also, Curtner v. U. S., 149 U. S. 662, 13 Sup. Ct. 985, 1041.

We are of opinion that plaintiff cannot avail himself in this action of what he claimed to be an interruption of the running of the statute of limitations in favor of the - defendants. The testimony offered by the defendants should have been allowed. There are some other questions raised on the appeal, which, ,in view of our decision upon the proposition above discussed, do not seem necessary to decide.

The judgment is reversed, and a new trial is ordered.

Reversed.

Hunt, J., concurs. Pemberton, C. J., did not sit in the case.