Summary
In Morrison v. Connelly, 13 N.C. 237, Ruffin, J., discussing the Act of 1715, and stating the sound reason for extending the terms of that statute to include cases of nonsuit and abatement, said, "The plaintiff, therefore, shall be heard until he can get a trial on the merits, provided he was diligent enough in the first instance to sue before time barred him, and renews his suit in a reasonable time."
Summary of this case from Blades v. R. ROpinion
(December Term, 1829.)
1. The proviso in the sixth section of the statute of limitations (Act of 1715, Rev., ch. 2), whereby the operation of the act is suspended upon a judgment for the plaintiff and its reversal for error, or upon an arrest of judgment upon a verdict in his favor, provided he bring a new action within a year, has been extended by construction to the cases of an abatement and a non-suit.
2. The proviso is founded upon the idea of merits in the plaintiff, although inartificially ascertained; its extension by construction, upon the fact that the merits are indifferent, and the plaintiff has been diligently endeavoring to assert them.
3. It seems that the proviso extends only to "actions and suits," and does not include a right of entry or claims to land, and as the action of ejectment depends upon the right of the lessor of the plaintiff to enter, that it is not within the proviso.
4. But, if the action of ejectment be within the proviso, yet the pendency of a former action between the same parties, for the same premises in which the plaintiff recovered only a part of them, will not prevent the operation of the statute as to that part of which a verdict passed in favor of the defendant.
EJECTMENT for 400 acres of land, tried on the last circuit, before MARTIN, J.
No counsel for the appellant.
Gaston, for the defendant.
FROM BURKE.
The defendant having protected himself by showing seven years' actual possession, with color of title, the lessor of the plaintiff, to avoid the bar, produced the record of a former ejectment between the same parties for the same premises, in which the plaintiff had recovered a verdict and judgment for two acres of land, and proved (234) that the present action was brought within a year of the determination of the former.
His Honor instructed the jury that the pendency of the former suit did not prevent the operation of the statute of limitations, and a verdict being returned for the defendant, the plaintiff appealed.
It is the settled course in personal actions to allow a new suit to be brought after a nonsuit in a former action, though the time of limitation hath expired, provided the first was commenced in due time, and the second within a year after the determination of the former. This is not within the words of the act, but it is established by a long train of decisions to be within the equity of it.
The idea of the plaintiff seems to be that this case is within the like reason, because in ejectment a verdict in one suit is not a bar to another action.
The doubt (if indeed there be a doubt) is whether the equity alluded to extends to ejectment at all. Had there been a nonsuit in the first action, would the plaintiff have been better off? The reason why the statute is suspended during the pendency of a personal action, which has abated or terminated by nonsuit, is that the new action is a continuation of the former. In legal contemplation both make but one. It is precisely the reverse in ejectment. This is the very cause why a verdict in one ejectment is not a bar to another ejectment. Both are fictitious; and the new demise laid in the second action gives the fictitious plaintiff a new and different title. If, then, the real plaintiff in ejectment claims to elude a bar, arising out of a former verdict, upon the ground that John Doe is now suing on a different title from that stated in his (235) first declaration, shall he be allowed to impugn a distinct bar of the defendant to the present action, by showing that this John Doe is the same person who was before plaintiff, and the title the same that he before had? The two privileges are incompatible. They cannot stand together. Ejectments cannot be connected together for any purpose. Hence it follows that the mode of the termination of one cannot help as it cannot injure another. There is a difference between this and other cases. The action of ejectment is not barred by time. In other cases the right is held to continue, though the remedy be barred. It is not so with ejectment. It is not mentioned in the statute. The entry, the right itself on which the action is founded, is divested. The proviso in section 6 speaks only of actions or suits, and is silent as to entries of claims to land. It seems to refer to the actions mentioned in the section immediately preceding, to which it is a proviso. It cannot refer to the action of ejectment; for that is nowhere mentioned in the act. Indeed, in the nature of things, it could not so refer; for in ejectment the question is not whether that action is barred, but whether the lessor could enter. He could have no right to enter unless he, or some one under whom he claimed, had been in possession within seven years. It is not sufficient to show that John Doe, upon the demise of the same lessor, had sued the defendant for a term in the land. It has already been observed that being by a distinct demise, it is a different title. It is the same as if the demise had been made by another lessor. If it be said that the confession of lease, entry and ouster in the first action admits the possession within seven years, the answer is that such confession has never been held to affect the statute of limitations. If it did, we need not go back to the first action; for the same confession is made in the second. And so the statute could never bar a plaintiff in ejectment. Besides this reason would itself fail if the first (236) action pended seven years; and thus would be most inefficient where the greatest needed for the rule existed.
A case easily supposed may put the position that one ejectment cannot be aided by another in a clearer light. Suppose seven years to expire pending the first action; that the defendant leaves the possession, and that a third person enters, not in privity with the defendant, and then the plaintiff is nonsuited. No new ejectment can be brought against the former defendant because he is not in possession. The tenant now in possession cannot be affected by the first action, being neither party nor privy. This stranger, then, would protect himself by showing the former possession, by means of which the lessor of the plaintiff had been prevented from entering within seven years. Why should not the same possession form a bar in favor of the possessor himself? It seems, upon good authorities, that it does. Mr. Justice Buller says ( Nisi Prius, 102), that if an ejectment be brought and the plaintiff be nonsuited, the case is not brought out of the statute of limitations; for there must be an actual entry for that purpose. This passage is commented on and explained by Sergeant Williams in his note to Clerk v. Pywell, 1 Saund., 319, b. He shows, indeed, that an actual entry is not necessary to prevent the operation of the statute of limitations in the sense in which it is required to avoid a fine — that is to say, that it must be made in every case of an adverse possession before an action can be brought at any period. A fine divests the estate; and the statute of fines expressly requires an entry to revest it. No action can, therefore, be instituted at any time before an entry to avoid the fine, because until an entry the estate is out of the plaintiff. Not so under the statute of limitations. A possession does not divest the estate until by a lapse of the whole time the right of entry is taken away, and then even an actual entry is unavailing, because made without right. The meaning, therefore, of the passage in Buller is, not that an actual entry must appear (237) in every case in ejectment under the statute of James, to have been made after the defendant's possession commenced; but it is to be understood that in every case an actual or legal possession in the lessor of the plaintiff, or one under whom he claims, within twenty years before suit brought, must be shown; and, therefore, if the twenty years are near expiring the claimant ought actually to enter to avoid the operation of the previous lapse of time, and take twenty years more to assert his right by action. That such would be the consequence of the entry is shown by statute 4 Anne, ch. 19, sec. 16, by which it is enacted that no claim or entry upon lands shall be sufficient within the statute 21 Jac., I, unless an action shall be commenced within one year thereafter, and prosecuted with effect. It was seen that without such a provision the statute of limitations might be rendered useless by entries made every nineteen years forever. To prevent that the statute 4 Anne limits again the time upon this new entry to one year for bringing suit, and requires suit to be prosecuted with effect, thereby cutting off the claimant from any further entry or action. Hence, although the actual entry is not, in the opinion of Sergeant Williams, necessary in ejectment, under statute 21 Jac., as it is under statute 4 Hen., VII; yet it is advisable, when the twenty years are nearly out, so as to give the party; for the suit, given after the twenty years, is not one to be commenced within a year, after a former suit brought within the twenty years, but within a year after an actual entry, made within the first twenty years.
It is to be regretted here, perhaps, that any claim of reasoning should reach this result; since the period fixed by our statute of limitations is so short, and the statute of Anne, being one of those for the amendment of the law, is in force in this State. It will operate severely here; for it confines us to eight years, as the utmost limit of time, (238) though the party be prosecuting his claim at law during the whole period, unless the suit pending at the expiration of the seven years, or brought within one year after an entry within the seven years, be effectually prosecuted. A century ago the period of seven years was probably wisely fixed on. The state of the country required that titles should be settled by a short possession; and wild lands being abundant, not much was lost to the true owner. But things have since much altered. And it is likely that the conviction of that led the Courts to create the doctrine of color of title, with the view of rendering the statute less effectual and injurious. It is to be doubted whether the remedy is not the greater of the two evils. And after all it may be found necessary for the legislature once more to interfere, by enlarging the term beyond seven years, and abolishing the notion of color of title, or explaining what it is. An enlargement of the time seems to be thought necessary by the profession generally. But the restriction in the statute of Anne is certainly salutary; for but for that, except in the case of the entry being tolled by descent cast, the party out of possession would be set at large without any effectual limitation, since his power to sue would be renewed continually by entries from seven years to seven years.
If, therefore, in the case before us the first action had terminated by nonsuit, the defendant would have been protected by the statute of limitations.
But being by verdict the point is still clearer. The Court does not feel the force of the suggestion that a new ejectment after a verdict stands upon a footing with personal actions after a nonsuit; because the former suit is not a bar to the second in either case. That principle relates to a matter very different from the present. The cases specified in the proviso in the act of 1715, section 6, are where there has been a verdict for the plaintiff and the judgment has been arrested. or where a judgment for the plaintiff has been reversed for (239) error. Both of these instances imply merits on the part of the plaintiff, which the law does not allow to be defeated merely by the time flowing while he is in the act, though inartificially, of prosecuting his claim. By construction Judges have raised a further equity in the cases of a nonsuit and an abatement; but it is an equity analogous to the rule of the statute. It is founded upon this, that the merits stand indifferent between the parties, as far as judicial proceedings show them. The plaintiff, therefore, shall be heard until he can get a trial on the merits, provided he was diligent enough in the first instance to sue before time barred him, and renews his suit in a reasonable time. But this can never apply to a case in which the merits have been tried and a verdict given. This precise question can never arise in a personal action, because the right of the plaintiff is barred by the verdict in the first action. No adjudication is found adopting it as to ejectments. And the reason of the rule in other cases shows that it ought not to be applied to this. The failure must be presumed to have arisen from defect of title, when a verdict is rendered against the plaintiff. It is wholly unlike a nonsuit, or an abatement, or arrest of judgment, or reversal of judgment. In these last the right has either been found for the plaintiff or has not been tried at all. The Court does not, therefore, perceive that the plaintiff failed to recover, under any circumstances, which will allow the second suit to be benefited by the first.
PER CURIAM. No Error.
Cited: Long v. Orrell, 35 N.C. 127; Straus v. Beardsley, 79 N.C. 64; Wharton v. Comm'rs, 82 N.C. 15.
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