Mason v. Walker

The action was continued, for advisement, and the opinion of the Court afterwards drawn up by Shepley J. The title and seisin of the ancestor having been established within the period of time prescribed by the statute, ch. 62, <§> 1, the demandants have proved the issue on their part. Yet the tenant contends, that they are not entitled to recover, because their ancestor bad been disseised more than twenty years, and had thereby lost bis right of entry and of action. And he insists, that such is the true construction of the statute. Such a construction requires the insertion of an additional provision, or restriction, exacting of the heir not only proof of seisin within thirty years, but also proof, that the ancestor at the time of his decease, had a right of entry. It would become necessary also, to be consistent, to give a like construction to the second section, which would require the heir in a writ of entry upon the possession of the ancestor, not only to prove that possession within twenty-five years, but that the right of entry also remained. To require of the heir thus to prove a right of entry still existing in the ancestor to enable him to maintain a writ of right, or a writ of entry, would greatly impair and restrict bis rights, as they appear to exist by the language of the statute; and it would be taking great liberties to incorporate such a provision. If it bad been the intention of the Legislature to put such a restriction upon the uso of the writ of right, it would be reasonable to expect to find that intention clearly expressed. By the statute of 32 lien. 8, ch. 2, the beir was permitted to bring the writ of right within threescore years, and the writ of entry within fifty years, upon the seisin of the ancestor ; while the anees [166] tor could bring his suit only within thirty years after he was disseised. Different periods of time, for bringing these suits respectively, have existed from that time to the present, although the time for bringing each action has been at different times shortened. A course of legislation, extending through so long a period, allowing the heir or successor a right of action, for a time so long after the ancestor or predecessor had lost all right, cannot have been undesigned. The right of action being clearly not taken from the heir by the language of the statute, until thirty years have elapsed, it is not for the courts of law to restrict it within narrower limits by connecting it with the condition of the estate as held by the ancestor. Nor is it any anomaly in the law, that one may maintain an action, or make an entry, after he, or some ancestor, or predecessor, has once lost the right to do so. This happens often under statutes of limitation upon some new occurrence, as in cases'of contract upon an acknowledgment, or new promise, after the right of action was -lost. Supposing one to be barred of his formedon, yet he may not thereby be hindered to pursue his right of entry which accrued to him by tire death of tenant for life. 2 Salk. 422, Hunt v. Burn. It is further insisted, that the ancestor having been disseised more than twenty years before his death, no title could descend to the heir. Mr Justice Blackstone states, that the mere right of property may exist, without either possession, or the right of possession. And that still the person so long disseised as to lose the right of possession, or his heir, by proving his better right, may at length recover the lands. 2 Com. 197-8. The right and the possession being united, the title is perfect, but the loss of possession does not take away the right. 5 Mass. R. 233, Porter v. Perkins. If the right of property remains after the right of possession is gone, there is no difficulty in considering it as descending upon the heir, unless it is destroyed by the statute of limitations. The time when an action may be commenced, is a’ matter not relating to the contract or title. 2 Moss. R. 84, Pearsall v. Dwight; 4 Wheat. 200, Sturgis v. Crowninshield. Such is the doctrine of the common law, and of the civil law; and such is said to be the generally received doctrine of the continental jurists. Story’s Conf. of Laws, 486. It has been decided, that the general statute of limitations, 21 Jac. 1, operates by way of bar to the remedy and not to the [167] right. Hunt v. Burn, before cited; 3 Barn. & Ald. 413 Higgins v. Scott. And it is upon this principle that statutes of limitation are regarded as not repugnant to the constitution. Time being given to the party to enforce his rights, they do not impair the obligation of the contract or destroy the title. Upon the same principle, suits are maintained on simple contracts, more than six years after the right of action has accrued, if brought within six years after an acknowledgment of an existing debt, or after a new promise. If the contract were destroyed at the end of the six years, no subsequent admission or promise could restore it, for want of a consideration. It is stated to be a maxim of the law, “ that whatsoever was at common law, and is not ousted or taken away by any statute, remaineth still.” Co. Lit. 115, b. By the common law, the mere naked right descended, and the action is given; the statute has taken nothing from the heir, but the right to prosecute his action after the lapse of thirty years. Having brought the action within that time, and introduced the necessary proofs, the demandants are entitled to recover. Judgment on the verdict„