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All limitation laws, however, must proceed on the theory that the party, by lapse of time and omissions on his part, has forfeited his right to assert his title in the law. Where they relate to * property, it seems not to be essential that the [* 366) adverse claimant should be in actual possession ;? but one who is himself in the legal enjoyment of his property cannot have his rights therein forfeited to another, for failure to bring suit against that other within a time specified to test the validity of a claim which the latter asserts, but takes no steps to enforce. It has consequently been held that a statute which, after a lapse of five years, makes a recorded deed purporting to be executed under a statutory power conclusive evidence of a good title, could not be 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.

Rep. 131; McMerty v. Morrison, 62 erty to the claimant under the statuMo. 140; Goodman v. Munks, 8 tory sale in all cases, irrespective of Port. (Ala.) 84 ; Harrison v. Stacy, possession. See also Baker v. Kelly, 6 Rob. (La.) 15; Baker 0. Stone- 11 Minn. 480; Eldridge v. Kuehl, 27 braker's Adm'r, 36 Mo. 338; Shelby Iowa, 160, 173. The case of Leffing1. Guy, 11 Wheat. 361. But the well v. Warren, 2 Black, 599, is contra. statute of limitations may be sus- That case follows Wisconsin decipended for a period as to demands sions. In the leading case of Hill v. not already barred. Wardlaw v. Buz- Kricke, 11 Wis. 442, the holder of the zard, 15 Rich. 158 ; Caperton v. Mar- original title was not in possession ; tin, 4 W. Va. 138 ; s. C. 6 Am. Rep. and what was decided was that it was 270; Bender 0. Crawford, 33 Tex. not necessary for the holder of the tax 745; 8. c. 7 Am. Rep. 270.

title to be in possession in order to * Stearns v. Gittings, 23 Ni. 389, claim the benefit of the statute; ejectper Walker, J.; Sturgis v. Crownin- ment against a claimant being pershield, 4 Wheat. 207, per Marshall, mitted by law when the lands were Ch. J.; Pearce v. Patton, 7 B. Monr. unoccupied. This circumstance of 162; Griffin v. McKenzie, 7 Geo. 163; possession or want of possession in Coleman v. Holmes, 44 Ala. 125. the person whose right is to be ex

? Stearns v. Gittings, 23 Ill. 389; tinguished seems to us of vital.imporHill v. Kricke, 11 Wis. 442.

tance. How can a man justly be held 3 Groesbeck v. Seeley, 13 Mich. guilty of laches in not asserting claims 329. In Case v. Dean, 16 Mich. 12, to property, when he already possesses it was held that this statute could not and enjoys the property? The old be enforced as a limitation law in maxim is, “That which was origifavor of the party in possession, in- nally void cannot by mere lapse of asmuch as it did not proceed on the time be made valid ;” and if à void idea of limiting the time for bringing claim by force of an act of limitation suit, but by a conclusive rule of evi- can ripen into a conclusive title as dence sought to pass over the prop- against the owner in possession, the

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;' though what shall be considered

a reasonable time must be settled by the judgment of the (* 367] legislature, into the wisdom of * whose decision in estab

lishing the period of legal bar it does not pertain to the jurisdiction of the courts to inquire.2

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policy underlying that species of leg- of one year for bringing suits on islation must be something beyond municipal securities of a class genewhat has been generally supposed. rally sold abroad was unreasonable

1 So held of a statute which took and void. But a statute giving a new effect some months after its passage, remedy against a railroad company and which, in its operation upon cer- for an injury, may limit to a short tain classes of cases, would have extin- time, e. g. six months, the time for guished adverse claims unless asserted bringing suit. O'Bannon v. Louisby suit before the act took effect. ville, &c. R. R. Co., 8 Bush, 318. So Price v. Hopkin, 13 Mich. 318. See the remedy by suit against stockalso Call v. Hagger, 8 Mass. 423; Pro- holders for corporate debts, it is held, prietors, &c. v. Laboree, 2 Greenl. may be limited to one year. Adam294; Society, &c. v. Wheeler, 2 Gall. son v. Davis, 47 Mo. 268. 141; Blackford v. Peltier, 1 Blackf. 2 Stearns v. Gittings, 23 Ill. 387; 36; Thornton v. Turner, 11 Minn. Call v. Hagger, 8 Mass. 430; Smith v. 339; Osborn v. Jaines, 17 Wis. 573; Morrison, 22 Pick. 430; Price v. HopMorton v. Sharkey, McCahon (Kan.), kin, 13 Mich. 318; De Moss o. New113; Berry v. Ramsdell, 4 Met. (Ky.) ton, 31 Ind. 219. But see Berry v. 296; Ludwig v. Stewart, 32 Mich. 27; Ramsdell, 4 Met. (Ky.) 296. Hart v. Bostwick, 14 Fla. 162. In It may be remarked here, that the case last cited it was held that a statutes of limitation do not apply to statute which only allowed thirty days the State unless they so provide exin which to bring action on an exist- pressly. Gibson v. Choteau, 13 Wall. ing demand was unreasonable and 92. And State limitation laws do void. And see what is said in Auld not apply to the United States. r. Butcher, Kan. 135. Compare United States v. Hoar, 2 Mas. 311; Davidson v. Lawrence, 49 Geo. 335; People v. Gilbert, 18 Johns. 228. Kimbro v. Bank of Fulton, 49 Geo. And it has been held that the right 419. In Pereless v. Watertown, 6 to maintain a public nuisance cannot Biss. 79, Judge Hopkins, U. S. Dis- be acquired under the statute. State trict Judge, decided that a limitation v. Franklin Falls Co., 49 N. H. 210.

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 ; 1 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 in suits to testify, might lawfully apply to existing causes of action. So may a statute which modifies the common-law rule excluding parol evidence to vary the terms of a written contract;3 and a statute making the protest of a promissory note evidence of the facts therein stated.4 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.5

· Kendall v. Kingston, 5 Mass. effect is Southwick v. Southwick, 49 533; Ogden v. Saunders, 12 Wheat. N. Y. 510. And see Cowan v. Mc319, per Marshall, Ch. J.; Fales v. Cutchen, 43 Miss. 207; Carothers v. Wadsworth, 23 Me. 533; Karney o. Hurly, 41 Miss. 71. Paisley, 13 Iowa, 89; Commonwealth 3 Gibbs v. Gale, 7 Md. 76. v. Williams, 6 Gray, 1; Hickox v. * Fales v. Wadsworth, 23 Me. 553. Tallman, 38 Barb. 608 ; Webb v. 5 Per Marshall, Ch. J., in Ogden Den, 17 How. 576; Pratt v. Jones, 25 0. Saunders, 12 Wheat. 249; Webb Vt. 303. See ante, p. *288 and note. v. Den, 17 How. 577; Delaplaine v.

2 Rich v. Flanders, 39 N. H. 323. Cook, 7 Wis. 54; Kendall v. KingA

very full and satisfactory examina- ston, 5 Mass. 534; Fowler v. Chattertion of the whole subject will be ton, 6 Bing. 258 ; Himmelman v. found in this case. To the same Carpentier, 47 Cal. 42.


[* 368] * A strong instance in illustration of legislative control

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 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

1 Hand v. Ballou, 12 N. Y. 543; 140 ; Wright v. Dunham, 13 Mich. Forbes v. Halsey, 26 N. Y. 53; Dela- 414; Abbott v. Lindenbower, 42 Mo. plaine v. Cook, 7 Wis. 54; Allen v. 162 ; s. c. 46 Mo. 291. The rule once Armstrong, 16 Iowa, 508; Adams v. established may be abolished, even as Beale, 19 Iowa, 61; Amberg v. Rog- to existing deeds. Hickox v. Tallers, 9 Mich. 332; Lumsden v. Cross, man, 38 Barb. 608. 10 Wis. 289; Lacey v. Davis, 4 Mich. ? See Webb v. Den, 17 How. 577.

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 requires an opportunity for a trial ;) and there * can be no [* 369] 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. And a statute which should


1 Tift o. Griffin, 5 Geo. 185; Lenz for the legislature to compel an owner v. Charlton, 23 Wis. 482; Conway v. of land to redeem it from a void tax Cable, 37 III. 89; ante, p. *362, note; sale as a condition on which he shall post, pp. *382–*383 and notes.

be allowed to assert his title against 2 Groesbeck v. Seeley, 13 Mich. it. Conway v. Cable, 37 III. 82; Hart 329 ; Case v. Dean, 16 Mich. 13; v. Henderson, 17 Mich. 218; Wilson White v. Flynn, 23 Ind. 46; Corbin 0. McKenna, 52 Ill. 44 ; Reed v. v. Hill, 21 Iowa, 70; Abbott v. Lin. Tyler, 56 Ill. 292; Dean v. Borchsedenbower, 42 Mo. 162; 8. c. 46 Mo. nius, 30 Wis. 236. But it seems that 291. And see the well-reasoned case if the tax purchaser has paid taxes of McCready v. Sexton, 29 Iowa, 356. and made improvements, the payment Also Wright v. Cradlebaugh, 3 Nev. for these may be made a condition pre349. As to how far the legislature cedent to a suit in ejectment against may make the tax-deed conclusive him. Pope v. Macon, 23 Ark. 644. evidence that mere irregularities have The case of Wright v. Cradlebaugh, not intervened in the proceedings, see 3 Nev. 349, is valuable in this connecSmith v. Cleveland, 17 Wis. 556; tion. " We apprehend,” says Beatty, Allen v. Armstrong, 16 Iowa, 508. Ch. J., “ that it is beyond the power Undoubtedly the legislature may dis- of the legislature to restrain a defendpense with mere matters of form in ant in any suit from setting up a the proceedings as well after they good defence to an action against have taken place as before; but this him. The legislature could not diis quite a different thing from making rectly take the property of A. to pay tax-deeds conclusive on points mate- the taxes of B. Neither can it indirial to the interest of the property rectly do so by depriving A. of the

See further, Wantlan V. right of setting up in his answer that White, 19 Ind. 470; People v. Mit- his separate property has been jointly chell, 45 Barb. 212 ; McCready v. assessed with that of B., and asserting Sexton, supra. It is not competent his right to pay his own taxes without


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