Lambert v. Slingerland

Gtleilijan, G. J.

These are actions under the statute to determine adverse claims to real estate. In each, the defendant alleges, in his answer, a sale of the land for taxes, in June,. 1871, that the action is brought to test the validity of the tax. deed, and was not brought within three years after the sale.. The actions were brought in 1877. Gen. St. c. 11, § 154,— the statute relating to taxes and tax sales, — provided that-“actions to test the validity of any proceeding under this chapter, or to determine any claim made under or by virtue of any such proceeding, shall be commenced within three years after the sale of the land for non-payment of taxes, and not otherwise.”

Laws 1874, c. 1, § 168, repealed chapter. 11, with the exception, “that all rights heretofore acquired, under any act hereby repealed, shall not be affected hereby.” This section was repealed by Laws 1875, e. 5, § 52. This appeal did not however revive section 154, of chapter 11. See Gen. St. c. 4, § 3.

As we have before stated, the sale was made in June, 1871. The law of 1874 was approved March'9, so that when section 154 was repealed by the latter act, three years from the sale had not elapsed, and the right to bring an action to test the validity of the proceedings was not barred. The three years’ limitation fell with the passage of the act of 1874, and, after that, there was no limitation of the time to bring the action, except such as was afforded by the general statutes of limitation. The question whether the exception in the act of 1874 saves the right to a bar of the action under section 154 of chapter 11, does not arise; for, though a man may have a right of exemption from suit, where, during the life of a statute of limitation, the cause of action has become barred, no-one can claim a right to the continuance of such a statute until the bar shall be perfect. In these cases, a part only of the time limited by the statute had passed before its repeal; the right to bring the actions still existed. .

The proposition upon which the cases were argued, that the right of exemption from a suit already barred, under section 154, was one of the rights saved' in the exception to the repeal, has no foundation in the facts as presented by the record ; and we cannot conceive how it came to be assumed in the briefs that three years had elapsed, under section 154, before-its repeal in 1874, unless it was assumed that, there having been, in the Lambert case, a forfeiture to the state, in 1870, (there was no forfeiture in the other case,) the three years began to run from the forfeiture, as from a sale. We think that the time began to run, not from the forfeiture to the state, but from the sale to defendant.

The matter pleaded was no defence, and the demurrers were properly sustained.

Orders affirmed.