Raimond v. Eldridge

By the Court, Crockett, J.:

On motion of the defendant a nonsuit was granted in this case upon the plaintiff's opening statement of the facts which he expected to prove. These facts were: First—That the land in controversy was within the limits of the Van Hess Ordinance. Second—It was admitted that the plaintiff had not been in possession of the demanded premises within five years next before the commencement of the action, and that the action was not commenced within one year next after the passage of the Act of March 5th, 1864. Third—That five years had not elapsed between the time when the title of the city to this land was finally confirmed and the com *508 mencement of the action. Fourth—That the defendant was in possession when the suit was brought.

The motion for nonsuit was made and granted solely on the ground that the plaintiff had not commenced his action within one year from and after the passage of the Act of March 4th, 1864, and had not been in. the actual possession of the premises within five years before the commencement of the suit, and because his action was barred by the Act entitled “An Act to limit the time for the commencement of civil actions in certain cases,” passed March 4th, 1864.

In his opening the plaintiff failed to state any title or right of possession in himself, and if the motion for nonsuit had been made on this ground, it ought to have been granted. But the defendant did not see fit to rely on this as a ground of nonsuit. If he had, the Court might have permitted the plaintiff to amend his statement and cure the defect. Having omitted to rely upon this ground of nonsuit in the Court below, he will not be allowed to raise the question for the first time here. We can only review the action of the Court on the defendant’s motion as he made it; and I think the Court erred in granting the motion on the grounds stated. To enable the defendant to avail himself of the Statute of Limitations as a defense, it must have appeared that he was in the adverse possession for the period required by the statute, to bar the plaintiff’s right of action. This fact was not shown or admitted to be true, but only that the defendant was in possession when the suit was brought. Hor was it any ground of nonsuit, that the action was commenced more than one year after the passage of the Act of March 4th, 1864. (Stats. 1863-4, p. 149.) The Act only provides that if the action shall be commenced more than one year after its passage, and the plaintiff shall not have been in possession within the next preceding five years, he shall not be entitled to rely upon the Van Hess Ordinance as a muniment of title. But it may be that the plaintiff had a perfect *509 title or right of possession independent of the Van Hess Ordinance. Hothing appeared to the contrary in the plaintiff’s opening statement.

Judgment and order reversed, and cause remanded for a new trial.