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ART. V.-THE LIMITATION OF REAL ACTIONS IN

TENNESSEE.

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It could never have entered into the minds of an English judge to decide, that the statute of 21 Jac. I. c. 16, s. 1, was intended to create a bar against any remedy for the recovery of the right of property. The words of the statute, in themselves alone, exclude such an idea. No person,' says the statute, shall make any entry into any lands, &c. but within twenty years next after his right or title first descended or accrued, and in default thereof, such person so not entering, and his heirs, shall be utterly disabled from such entry.'

As this statute operates by way of bar to the remedy,(a) so it bars such remedies only as require, for their successful assertion, an entry upon the land. Now an ejectment is a possessory action, wherein the title to lands and tenements may be tried, and the possession recovered, in all cases where the party claiming title has a right of entry.(b) It follows, that to maintain the action of ejectment, the party at whose suit it is brought must have been in possession, or at least clothed with the right of possession, and of course with the right of entry, at the time of the actual or supposed ouster. But, by this statute, no person shall make entry into any lands but within twenty years, &c. and as the right of entry is taken away, so the remedies provided by law for enforcing that right, and which are simply incident to that right, are likewise taken

away.

Such is the obvious import of the language itself of this law. But when viewed with reference to the system of which it is a part, no one could suppose it was intended to operate so as to toll any remedy for the right of property. For the statute of 32 Hen. 8. c. 2, which is in pari materia, and constitutes the remainder of the system which has been mentioned, fixes the limitation of time in a writ of right at three score years next before the teste of the writ. (c) The statute of James operates upon possession and possessory remedies, the statute of Henry upon rights and writs of right. (d) After the passing of the act of 32 Hen. 8, and before that of 21 Jac. I., although

(a) Sugd. Vend. 266. (d) Bac. Ab. Limit. B.

(b) Selw. N. P. 721.

(c) 1 Inst. 115 a.

a man had been out of possession of land for sixty years, yet if his entry was not tolled by descent, by discontinuance, or fine and non-claim, he might enter and bring an action on his own possession. The statute of James altered the rule in this respect, by superadding to those of the common law, a statutory mode of tolling an entry, namely by neglecting to enter for twenty years after the title or right descended or accrued, by which no person can now enter except within twenty years after his title accrues.(a)

If it should appear that the legislature of North Carolina had re-enacted both of these English statutes, we should very naturally conclude, that it was intended to maintain the distinction of those statutes between possessory and droitural actions. No English statute was in force in North Carolina passed after the fourth year of James I., in which year the charter to the colony of Virginia was granted, which included the territory afterwards called North Carolina. (b) It was for this reason, and the intrinsic necessity of the law, that the legislature in 1715 passed an act of limitations, c. 27, the third section of which is concluded almost in the very words of the first section of the statute of Jac. I. c. 16. (c) The statute of 32 Hen. 8. c. 2, was no doubt considered to be in force, and hence it was judged unnecessary to re-enact it in terms. Yet the legislature of 1715, in order to place the question, what laws of England were in force in the colony, beyond dispute, declared, c. 31, that all laws providing for the privileges of the people, and security of trade, as also, all statute laws made for the limitation of actions, and preventing of vexatious law suits, and for preventing of immorality and fraud, and for confirming of inheritances, and titles to land, are and shall be in force here, although this province, or the plantations in general are not therein named.'(d)

By this act the statute of Henry above mentioned is as clearly made the law of North Carolina as English words can do it, unless it were re-enacted by name. There is but one way of avoiding this consequence, and that is to say, that the legislature intended to repeal the statute of 32 Hen. 8. c. 2, by substituting in its stead their own act of 1715, c. 27. This however, was never pretended prior to 1793. Supposing therefore, both of these English statutes to have been in force

(a) 4 Co. 11, b. Sug. Vend. 270. (b) 1 Ten. R. 154. (e) 1 Scott, 14. (d) 1 Scott, 22.

in North Carolina, the one by special, the other by general re-enaction, what doctrine would we suppose a priori, to have prevailed in the courts of that state, as to the operation of their statute of 1715, c. 27, s. 3? The same, undoubtedly, that had prevailed in the English courts as to that of 21 Jac. I. Because the same reasons precisely, drawn both from the language of the act, and from its connexion with other laws operated in the former as in the latter case.

Accordingly we find it stated by one who was every way competent to determine, (a) that 'before the year 1793, and up to that period, the act of 1715, c. 27, received the same construction as did the statute of James the first, by the judges in England. Possession for seven years, barred the right of possession, which had been in the plaintiff, vested the same in the possessor, and barred the claim of ejectment founded on the right possession in the plaintiff. It left the right of property in the plaintiff, and an action founded on that right of property.' The possession here meant is a naked or mere possession, or such possession as a disseizor obtains. A disseizor who enters upon the land of another by force, and turns him out of possession, has mere possession; should the owner acquiesce for twenty years, the owner would lose his right of entry, and his remedy by ejectment, although his right of possession and of property would still reside in him; but after a lapse of thirty years the right of possession would vest in the original disseizor, and the owner would retain the mere right of property; and after an acquiescence of sixty years, the right of property in the former owner would wholly fail. (b) Such likewise, was the construction of the courts of North Carolina, upon their own act of 1715, c. 27.

About 1793, or soon afterwards, the design was conceived, of rendering this act a perpetual bar, not only to the action of ejectment founded on the right of possession, but also to all actions founded on the right of property, and to vest an absolute fee in the possessor. (c) It would seem that nothing less than legislative interference could effect this great change. Such in fact is actually the case; but in this instance, a power of a legislative character was used, not by the body in which the constitution has vested it, but by the judicial department.

(a) Judge Haywood, Peck's R. 218. (b) Stark. Ev. Pt. iv. 1191, note g Harg. Co. Lit. 239 a, n. 1; 325 a, n. 1.

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We are told, however, that the power of construing a statute is in the judges; who have authority over all laws, and more especially over statutes, to mould them according to reason and convenience, to the best and truest use. (a) But we are told, on the other hand, that by the rules which are laid down in England for the construction of statutes, and the latitude which has been indulged in their application, the British judges have assumed a legislative power; and on the pretence of judicial exposition, have in fact made a great portion of the statute law of the kingdom.

Our own judicial history will not be without its examples of judicial exposition which amount to actual legislation; and if the modification of the third section of the act of 1715, so as to make it bar droitural as well as possessory actions, be not one of them, perhaps every instance of strained judicial construction to be found in the English books, may claim an exemption from the severe imputation of usurpation of legislative power.

But at the late period of 1793, in the face of a contrary construction for one hundred and sixty-nine years in England, and for seventy-eight years in North Carolina; contrary to the unambiguous language of the act itself, and in direct opposition to a statute fixing the limitation of droitural actions to sixty years, how was the court, admitting that reason and convenience justified it, to mould a statute providing a bar of possessory actions only, so as to bar droitural ones, and to pronounce that this new application was its best and truest use? Were men to be told that a disseizor should, by his wrong, in the short space of seven years, ripen his naked possession not only into a right of possession, but also into a right of property, and that the former owner should be totally divested of title? Were they to be told this, when the legislature had said that a mere possession should not become rightful till the lapse of twenty years, and that this right of possession, gained by lapse of time, should not be clothed with the right of property till the expiration of sixty years? This indeed would have been an exertion of judicial power without a parallel in the annals of jurisprudence. Yet it was exerted; and its exertion produced the unexampled effect of repealing one statute, which, beyond all reasonable doubt, was in force, and of applying another to a

(a) Bac. Ab. Statutes H.

use for which it was never designed, if the slightest reliance is to be placed on a uniform practice of seventy-eight years.

Nevertheless all this was effected, in a way that manifested no small insight into human character. The first step was, to palliate the rule, which it was intended should be establishedto gild the pill that was to be administered. The possessor was to be clothed with color of title, and it was this subtle entity of imagination, to which was to be annexed the right of possession, and the right of property, to the total exclusion of the first grantor. The legislature intended, it was said, by the act of 1715, to supply the place of the statutes of Henry and James, and to make seven years possession a perpetual bar. But this bar was not to be operated in behalf of a naked trespasser known to himself to be so, but in behalf of one, who, having color of title, took possession of the land, believing himself to be the real owner.

As this doctrine was confessedly an innovation, and, if it should prevail, would be the foundation of a system, in every particular, opposite to that which had hitherto obtained, it was, of course, incumbent on its advocates to point out the expressions of the act of 1715, that authorized their construction. It will be impossible, it is apprehended, to understand this controversy clearly, without reference to the statute out of which it arose. As its provisions are short they are accordingly introduced.

Sec. 2. All possessions of, or titles to, any lands, &c. derived from any sales made either by creditors, executors, or administrators, or by husbands and their wives, or husbands in right of their wives, (a) or by endorsements of patents, or otherwise, of which the purchaser or possessor, or any claiming under them, have continued, or shall continue in possession seven years, without any suit in law, be, and are hereby ratified, confirmed, and declared good and legal, to all intents and purposes against all and all manner of persons.

Sec. 3. No person nor their heirs which shall hereafter

(a) Littleton tells us, sec. 594, if a man be seized of land as in right of his wife and thereof infeoff another, and dieth, the wife may not enter, but is put to her action which is called cui in vita. But this,' says Lord Coke, is altered since our author wrote, by the St. of 32 Hen. 8, c. 28, by the purview of which statute, the wife and her heirs after the decease of her husband may enter into the lands or tenements of the wife, notwithstanding the alienation of her husband.' This section of the act of 1715 therefore, it would seem, modified and restored the rule of the ancient common law, repealed by the statute of Henry.

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