Shields v. Boone

Bell, J. The appellant, in this cause, was the plaintiff in the court below. He instituted suit to recover from the defendant, five hundred acres of land, part of the Samuel Highsmith league. The defendant claimed the whole league, under a conveyance from one Lockhart, who had purchased the same at sheriff’s sale. The plaintiff showed title in himself, and the defendant was forced to rely on the statute of limitation of five years. To repel the plea of the statute, the plaintiff offered in evidence the record of a suit instituted by one Holman, plaintiff’s vendor, against Roone. The suit, by Holman, was instituted in the spring of 185-3, and was dismissed, in the fall of that year, for want of prosecution. The question presented by the record is, whether or not, the suit of Holman was an interruption of the statute of limitations, which had begun to run in favor of Boone. If the time, during which Holman’s suit was pending, is to he carved out of the time during which Boone held the possession, using, cultivating, and enjoying the land in controversy, and paying taxes thereon, then the plea of the statute cannot be maintained: otherwise, if the suit instituted by Holman, and dismissed for want of prosecution, did not interrupt the running of the statute; for then, the plea of the statute was fully supported by the proof. The instructions of the judge to the jury do not appear in [197] the record. There was, however, a motion for a new trial, which purports to contain the charge of the court, as to the effect of Holman’s suit, upon the running of the statute. Another ground of the motion for the new trial, wa's, that the judgment is contrary to the law and the evidence. The record of Holman’s suit, is a part of the statement of faets, having been introduced in evidence by the plaintiff, to repel the plea of the statute of limitations. It thus becomes necessary to decide, what effect the suit of Holman had upon the running of the statute, in order to determine whether or not the judge below erred, in overruling the motion for a new trial. It is obvious, from the record, that the judge instructed the jury that Holman’s suit, having been dismissed for want of prosecution, did not interrupt the running of the statute of limitations, in fayor of Boone, the"defendant in possession. The general doctrine is well settled, that a suit voluntarily abandoned, does not interrupt the statute of limitations. (See Angell on Lim. § 327, and cases there cited.) But it is contended, on the part of the appellant, that the last clause of the 14th section of the Act of limitations of the 5th of February, 1841, furnishes an exception tG the general rule, and that it results from a proper construction of that clause, or rather from the very letter of the elause, that an adverse suit, to recover the estate from the party in ¡Possession, interrupts the running of the statute. The language of the statute is as follows: “Peaceable possession, within the scope of this act, is such as 15‘is continuous, and not interrupted by adverse suit to recover “the estate.” If this provision of the statute is to he understood according to its very letter, then it would follow, that an adverse suit by A, against B, might be pleaded, in a subsequent action by C, against B, for the same estate, as an interruption of B’s possession; even though no privity existed between A and O. Ho one would contend for a proposition so absurd; and the statement of the proposition, is an answer to the argument in favor of a strictly literal construction of the statute. But, even in a strictly literal sense, it may be said, that “a suit to [198] recover an. estate,” necessarily involves the idea of a prosecution of the suit to effect. It cannot he supposed, that laws would he enacted, in reference to a thing so idle as the commencement of suits, and the voluntary abandonment of them. It would be charging the legislature with great folly, to suppose that they ever intended to enact, that the institution of a suit, and the voluntary abandonment of it, could secure to a party any rights. Much less can we suppose that the legislature intended, in the enactment of a law for the avowed purpose of protecting persons who have held estates for a certain length of time, to declare that suits instituted and voluntarily abandoned, would have the effect to stop the running of the statute in favor of those, whose possession, it was the object of the law-makers to protect. The object of the law-makers, in the clause before us, was to define what is meant by a peaceable possession. Their minds were not particularly directed to the subject of the interruption of the statute. In the act of 20th December, 1836, it was said, that “a peaceable possession can only be interrupted by an actual suit being “ instituted, and prosecuted agreeably to the due forms of “ law,” &c. We do not think the legislature intended to change this rule. We are of opinion, then, that a suit, voluntarily abandoned, or dismissed for want of prosecution, will not interrupt the running of the statute of limitations, in favor of a defendant in possession. There are other errors assigned, which we do not .think it necessary to notice. The judgment is affirmed. Judgment affirmed.