Rawls v. Doe ex dem. Kennedy

The proviso to the first soolion of tlie act of 1843, (Clay’s Digest 329 §92,) applies only to that section, and docs not extend to the whole act. 2. The act of 1802, (Clay’s Digest 327 § 83,) which bars rights of entry after the lapse of twenty years, is not repealed by the act of 1843, (lb. 329 § 93,) which limits all actions for the recovery of lands to ten years after the accrual of the cause of action; possessions commencing under the old law are governed by the act which first effects a bar in their favor. 3. In ejectment, where separate demises are laid from several tenants in common or co-parceners, if tlm statute of limitations has effected a bar against one of the lessors, a recovery may be had on the demises from the others.

Error to the Circuit Court of Mobile. Tried before the Hon. John A. Outhbert. Ejectment for a lot of land in the city of Mobile. The declaration laid joint and several demises from Oscar Kennedy, Charles S. Shrieve and Mary, his wife, and Ella Walker, said Oscar, Mary and Ella being the heirs at law of Joseph Kennedy. The defendant having entered into the consent rule, and admitted possession of a portion of the land sued for, the counsel of the respective parties agreed on the 'following case : “1. That on the eighteenth day of January, 1817, Wm. E. Kennedy was the legal holder of a Spanish claim for lands in Mobile originally granted to Thomas Price, which was confirmed in 1829, to Joshua Kennedy, as his assignee. The claim, with all the evidence appertaining to it, is recorded in the records of this Circuit Court, and of the Supreme Court of this State, in the cases reported in 7 Ala. R. 882, 11 Ala. R., and 2 Ala. R. 574 ; and reference is made to this evidence, and to the third and fifth volumes of American State Papers (Public Lands) for the same. 2. That Wm. E. Kennedy, on the eighteenth day of January aforesaid, executed a deed of bargain and sale, by which, for one dollar, he granted, bargained and sold to Joseph P. Kennedy the undivided half of ten acres of land, situated about one mile and a half from the centre of the town of Mobile, at a place known and designated as the “ Spring,55 to include said Spring. It was understood that the said Joseph was to improve said lands in a short time, for the common- benefit. This deed contains a covenant of warranty, and was duly recorded in the County of Mobile. 3. That Joseph P. Kennedy entered upon said lands, but made no improvements of any consequence before his death. 4. That in 1824 Joseph P. Kennedy died, leaving three children, Oscar P. Kennedy, Glovina Kennedy, who afterwards married' Robert L. Walker, and died in 1842, leaving Ella Walker her heir at law, and Mary Kennedy, wife of Charles S. Shrieve; and that these, the heirs of Joseph P., are the lessors of the plaintiff. 5. That in December, 1824, Joshua Kennedy purchased from William E. Kennedy his entire interest in the Price claim, with notice of this deed, and prosecuted the claim to its confirmation by Congress, by the act of March 2, 1829. — 2 Clark’s Land Laws, p. 239. 6. That Joshua Kennedy, immediately after his purchase, claimed and possessed the land as his own, and in the year 1833 he conveyed it to William F. Cleaveland and others, by deed with warranty, who entered into possession immediately. 7. That the possession of said Cleaveland was adverse and continued; he divided this land into lots, and sold them among a large number of persons, who claim the fee simple, and have continuously occupied the same. 8. That John F. Rawls owns and occupies, at the date of the service of the ejectment, one lot in the Price claim aforesaid, described in his consent rule, in that portion embraced in the deed of William E. Kennedy to Joseph P. Kennedy aforesaid, and that his title to the same was regularly derived from Joshua Kennedy and William F. Cleaveland, under their conveyances. It is further agreed that Glovina Kennedy and Mrs. Shrieve were minors at the time of their father’s death, and became of age, the one in 1838, and the other in 1840. The parties hereto submit their rights to a recovery, either for the whole or a part of the lot above mentioned, upon the facts above stated, and reserve the right to appeal to the Supreme Court,” &c. Upon the case thus made, the court rendered judgment for the plaintiff, for the lot described in the consent rule, and this judgment is here assigned for error. The action was commenced in April, 1852. 1. The act of 1843 contains two sections. The first section refers to equities of redemption, and attached to it is a proviso. The second section declares the general rule ; it provides a bar of ten years after the cause of action accrues.— Without the addition of the general proviso attached to the first section, it is admitted that, under the general rule applied by the courts to regulate the operation of statutes, the enactment contained in the second section would be held to have effect only as to the future after the passage of the act. — 7 Johns. R. 477 ; 8 Wend. 661; 10 ib. 363 ; 2 Greene 181 j 1 ib. 338 ; Wilkins. on Limitations 140. In general, the operation of a new law is confined to the future, but this is not always the case; it is competent for the legislature to provide that a nery law, operating upon a remedy, may have a retrospective operation ; and where this intention appears, effect will be given to it, but not so as to defeat vested rights. — 1 Ala. R. 661; 13 Peters’ R. 45, 64; 2 Louis. Ann. R. 611; 3 ib. 526; 3 McLean’s R. 568 ; 2 Gall. 103, This principle is expressly recognized in Henry v. Thorpe, 14 Ala. R. 103. We contend, that the legislature has made such provision in the act of 1843. That act is either prospective only, or it is both prospective and retrospective. The body of the first section clearly looks to a retrospective operation, while the language of the second section may very properly be construed to operate in either way ; but, without more, under the general rule, it would be held to a prospective operation. If the proviso found in the first section be applied to both sections, there can be no doubt of the meaning the enactment speaks. It was prepared in the very spirit of the language used by the Supreme Court in 13 Peters’ R. 64. It declares the operation of the act to be partially retrospective, and permits any part of the ten years, not exceeding five, to be counted before the date of the act. No possession existing at the date of the act should be defended by that act, against a claim made within five years after its passage. By the use of the proviso, the language and operation of the two sections are made harmonious. Does this proviso apply to the whole actl The proviso itself says that it does. “ Where I find the words of a statute perfectly clear, I shall adhere to the words,” says Lord Denman, in 4 Nev. & M- 426. Where a well known word is used, the well known meaning shall be applied. — 1 Kent’s Com. (7 Ed.) 511; 20 Wend. 561; 13 M. & W. 511; 9 Iredell 149, 150. The proviso says, it governs the whole “ act,” that is, the “ act to amend the law in relation to limitations.” Certainly, with this language, nothing can justify the court in deciding that “ act ” means “ section.” 2. The claim of Oscar P. Kennedy was barred by the operation of the act of 1802. The acts of 1802 and 1843 both operate, and both may stand together.; and if either of them, by its terms, bars a claim, that bar is perfect. This is undeniable, if the act of 1802 is unrepealed ; and it is nowhere expressly repealed. The act of 1848 does not expressly repeal it; it is an act “ to amend,” not an act to repeal; the intention to amend excludes, ex vi termini, the intention to repeal, unless the two acts conflict with each other; it does not operate a general repeal, though it may work a partial and particular repeal in specific points of conflict. Repeal by implication is not favored by the law. In the absence of express words of repeal, the presumption is against such an intention, and the two acts shall stand together as far as possible. — 24 Pick. 297, and ancient authorities there cited ; 3 Ala. R. 628 ; 6 Porter 231; 9 Iredell 496, 500; 2 Barb. R. 316 ; 2 Saund. Ch. R. 533. In cases of apparent contradiction.in the operation of acts in The defendants in error rely upon the act of February, 1843, and upon the construction given to it by this court in three several cases, which came before it at different times, to the effect that it operated a repeal of the former law on the same subject, and destroyed its effect in toto; and that the new law, in all cases where prescription had commenced before its passage, but was not then complete under the old law, created a bar in ten years only after its passage. — Henry v. Thorpe, 14 Ala. R. 103 ; Niekles v. Haskins, 15 ib. 619 ; Cox v. Davis, 17 ib. 714. It is a familiar principle, that the decisions of the Supreme Court, giving a construction to statutes, become incorporated into the law itself, and constitute a part of it; and this is especially the case in the construction of statutes relating to real estate. Successive determinations make the law. — 3 Atk. 762; 11 Wheaton 367 ; 2 Peters 18 ; 5 ib. 264; 2 Brock. 288.— The above cited decisions therefore, on the act of 1843, have become a part of the act, and a rule of property, “ and ought not to be disturbed, except for very cogent reasons.” — 20 Johns. 721; 16 ib. 402 ; 8 Durn. & E. 504; 1 East 741; 7 Durn. & E. 419. Besides, these decisions have been suffered to remain, until the very moment when the act, by lapse of time, has had all its effect; when, by its repeal, it can only remain to regulate rights acquired or lost under it; and when a change of its construction, if made, could never operate on the future, but only on the past, to affect vested rights, and would be liable to all the objections that could arise from giving to the act a retroactive effect. The construction heretofore placed on the act of 1843 is correct on principle. That act and the act of 1802 have the same general object, and cover the same field, to-wit: the limitation of actions for the recovery of lands. The terms of the later act are even more general and comprehensive than those of the former ; it provides a uniform limitation of ten years, instead of the old prescription of twenty or thirty years. Here, then, are two acts, passed at different times, relating to the same subject, but containing provisions repugnant to each other ; and it follows, from the principle universally recognized from the earliest times, that the two acts cannot stand together, but the former is repealed by the latter. “ Statutes introduetive of a new law, penned in the affirmative, do always repeal former statutes concerning the same matter, as implying a negative.” — Harcourt v. Fox, 1 Show. 520. For further illustrations of this rule, see Dwarris on Statutes 673; 3 B. & Ad. 818; 1 M. & W. 135; 8 Blackf.' 581 ; 5 English 588; 3 McLean 212; 4 Wash. C. C. 691; 1 Iowa 338 ; 3 Howard’s U. S. R. 635 ; 13 ib. 429; 3 Greenl. 22; 10 Pick. 37; 9 N. H. 59; 2 Bibb 96; 6 B. Mon. 146 ; 7 S. & M. 9 ; 1 Kelly’s. R. 32 ; 3 Dess.-135.— And the same doctrine has been recognized and acted on in this court. — Kinney v. Mallory, 3 Ala. 626 ; Cole v. Flournoy, 9 Ala. 402 ; Jordan v. The State, 15 Ala. 746 ; Hirschfelder v. The State, 18 Ala. 112 ; 8 Porter 434. But the act of 1843 is not merely an affirmative statute, introductory of a new law, implying a negative ex vi termini ; it contains express negative words, thus indicating a clear intention to make it exclusive as well as imperative, and bringing it within this modification of the rule above laid down, that, “ if a subsequent statute, contrary to a former act, have negative words, it shall be a repeal of the former act. — Dwarris 679 ; 7 B. & C. 12. If, then, so much of the act of 1802 as relates to the subject is repealed, how is it to be regarded after such repeal 1 Does it wholly cease to operate at the moment of its repeal, or does it still affect a certain class of cases, and cease to operate as to others 1 An act of limitations is intended to bar the enforcement of a right, unless legally asserted within the time prescribed ; and its effect is, in one case, the acquisition of a right of property by the possession of a thing during the time limited, and, in another case, the extinction of a right which is not legally enforced during the same prescribed time. No right of property can be acquired or extinguished by virtue of such an act, unless the whole time prescribed has elapsed -without any interruption. The repealed statute, then, does not wholly cease to operate at the moment of its repeal, but still governs all cases where the entire time prescribed by its terms as a bar had elapsed before its repeal, and may bo invoked at all times to protect or discharge those affected by it. But in all cases where prescriptions had commenced, but were not comple ted at the time of repeal, the repealed law can have no effect; as to them, it wholly ceases to operate; for, if it was powerless to aid or protect before its repeal, much less could it have any such effect after its repeal. It is the well settled rule of the common law, that a repealed act must be considered, except as to transactions passed and closed, as if it had never existed. — Dwarris 676; 9 B. & C. 752 ; 7 Bing. 582. This doctrine has been recognized as established law, wherever the point has been raised in this country. — 8 Blackf. 581; • 7 Mass. 140; 17 ¿5. 240; 11 Pick. 350 ; 1 N. H. 51; 1 Watts 258 ; 5 Crunch 283 ; 3 Hals. 48 ; 7 Barr 174; and it has been recognized by this court, in 17 Ala. 823 ; 4 ib. 487 ; 14 ib, 435 ; 6 Porter 372 ; 1 Stewart 347. If this, then, be the empire and limit of the repealed law, the new law must commence where the old one ceases, and must control and regulate all matters within its purview upon which the old law had ceased to operate ; or, in other words, the new law must regulate all things within its purview, except such rights as were vested under the old law. A new statute of limitations, then, must govern all causes of action existing when it went into effect, and not then barred by the former act. This is not giving the statute a retro-active or retrospective effect. A statute retro-acts, when it returns to the past, and changes it to the prejudice of some one, by taking from him rights actually acquired or vested. — 3 Dallas 391; 7 Johns. 593 ; 2 Gall. 139; 2 Cranck 272. 'What, then, are vested rights ? Are prescriptions commenced under the old law, but not completed, vested rights, which the new act cannot regulate ? A prescription commenced, but not completed, is neither a vested or acquired right, nor a right at all. — Vazeille on Prescriptions, 2 vol. 451 § 790; Troplong, 2 vol. 692; Theveneau 696; 24 Merlin’s Repert. 95. Statutes of limitation affect only the remedy, and not the right; and so far as rights have not been already acquired under them, they are subject, at all times, to be changed or modified by the legislative will. — 2 Mass. 84; 3 Johns.- 264; 2 Vermont 540; 13 East 439; 10 B. & C. 903; 2 Bing. N. C. 202, 209, 216 ; 5 Clark & Fin. 13, 17 ; 4 Watts & Serg. 218 ; 4 Humph. 14 ; 9 S. & M. 310; 1 Hill 325; 4 Wheaton 207 ;■ 3 Peters 280; 9 Howard 526 ; 8 Porter 84; 1 Ala. 312 ; Story on Con. of Laws, § § 576,577, 578; 2 Kent’s Com. 472. But justice and sound policy indicate, that, whenever a prescription is shortened by statute,-there should always be allowed, between its passage and the limit which it establishes, a sufficient time for those against whom it operates to prosecute their rights. Statutes of limitations are always prospective in their operation: they always loook to a future limit, but not exclusively to future causes of action ; they apply to all causes of action pending, and not already barred when they go into effect, whether originating at that moment or previously, unless otherwise expressly provided. These views are sustained by the civilians, and by the following common law authorities. — 3 Peters 289 ; 2 Denio 579, 585 ; 10 Wend. 363. In applying statutes of limitations to prior causes of action, the time elapsed before the statute goes into effect cannot be counted as any part of the prescription : such causes of action only accrue, in the contemplation of the act, when it commences to operate on them, and consequently the prescription required must commence with the act, and from that moment run out entirely under it. A cause of action cannot accrue, in the contemplation of the act, before the act exists, nor before it goes into effect. — Lewis v. Lewis, 7 Howard 776 ; Ross v. Duval, 13 Peters 62. The case of Lewis v. Lewds, supra, overrules the decision in 3 McLean 568, which is relied on by plaintiff in error. But, it is said, the legislature intended to shorten the time of limitations, and therefore a construction of the act which would, in many cases, prolong it, would be contrary to such intent, and clearly against the primary rule of interpretation. It is admitted that the intention was to limit all actions to ten years after the passage of the act, because this'is the express language of the act; but not that any actions should be barred in less than ten years from its passage, for there is nothing in the language of the act to indicate such intent, and no necessity for a construction so repugnant to its plain terms. The intention must govern, but that intention must be discovered from'the words of the act, where they are plain and unambiguous.— Dwarris 694, 702; 6 B & C.715; lib. 560; Vattel255 § 257. But the objection itself recoils on those who make it; for, they say, the proviso to the first section applies also to the second, and thus prolongs the prescription, to a certain extent, on prior causes of actions. It lies not, then, with the plaintiffs in error, to make this objection, unless they can give a construction to the act which will not present it. The proviso to the first section applies only to that section. There was a necessity for its application to that section, to prevent a retro-active effect and a sudden extinguishment of all remedy in a large class of actions to which it would apply ; but there was no necessity for its application to the second section, which took away no remedy, and interfered with no vested rights. Besides, the two sections are wholly separate and distinct in subject matter ; there is no necessary connection between them; each may be considered a separate and distinct act. — Bridgman on Judgments 315.