Southwestern Railroad v. Atlantic & Gulf Railroad

Triple, Judge. 1, 2, 3. The provisions of the Code on the subject of title by prescription to personal property, applicable to this case, are as follows: Adverse possession of personal property within this state for finir years shall give a title by prescription. No prescription arises if the property be concealed, or removed out of the state, or otherwise is not subject to reclamation. A prescription does not run in cases of fraud debarring or deterring the other party from his action, until the fraud is discovered: See Code, sections 2685 and 2688. Before the adoption of the Code, and the substitution of these provisions for those in the statute of limitation, it was prescribed by that statute that all suits for the recovery of personal property or for damages for the conversion of it, shall be brought within four years after the right of action accrues and not after. The exceptions — akin to those given in the law of prescription— were, that where any person against whom a right, to sue existed, should remove from this state, the time should cease to be computed in his favor from the timeof such removal and so continue until he should return and fix his residence in this state. Also, where the property should be carried away and secreted so that the owner did not know who was in possession of it, on where i^was, or against whom to bring his suit, the statute ceased running until the property was discovered, or who was in possession of it: Acts of 1855-6, page 233. There was also a provision on the subject of fraud substantially like that in the present law of prescription. The de [406] fendant in tins case is a railroad company, located in this state, was liable to be sued, and could have been sued at any time after it received the iron now claimed ; and the question is, did it lose all right to assert title to the iron by prescription, because it was sent, or loaned, or sold, so that it was taken out. of the state ? The court charged, that as to the portion that was taken to Alabama, no prescriptive title could be asserted, and a verdict was found for that much of the iron. We think there was error in the charge. Under the statute of limitation, we are not aware that it was ever held, that, because property for which a party was sued had been carried beyond the state, whilst the defendant resided hero all the time, and there had been no secreting or concealment of it, nor other fraud, so that the claimant did not know against whom to bring his suit, the defendant thereby lost all benefit of the statute. Did the change of the law frhm one of limitation to one of prescription, radically revolutionize such an important feature as this ? Before the adoption of the Code, it will not be questioned, that unless fraud of some sort were shown which prevented plaintiff' from suing, the defendant could have protected itself under the statute of limitation, although the iron had been sold and carried out of the State. The words of the Code are: “No prescription arises if the property be concealed, or removed out of the slate, or otherwise is not subject to reclamation.” Do not these last words furnish a key to aid in the construction of the whole provision ? Why should the statute cease to operate if reclamation be all the time at the command of the claimant? A party may have reclamation without obtaining the specific article or property. Webster defines reclamation to mean, “Recovery. 2. Demand; challenge of something to be restored ; claim made.” If reclamation means a regaining of the property i tself, then if the property be perishable and die, or is consumed, a defendant in such a case could never claim the benefit of the statute. So, if the property was to be destroyed, or placed beyond the power of the defendant to return it within the state, there would be a perpetual right of action against him, [407] and whatever might be his good failli lie could never have repose even against a doubtful claim. 'We think the true construction of the law on this matter is, that if the right of action on the part of the plaintiff exist all the time, and there be no disability preventing its assertion produced by tiie fraudulent acts of the defendant or resulting from any cause recognized by law, then the right of reclamation as meant by the Code continued without interruption, and the true intent and meaning of the provisions of the statute on the subject of title by prescription to personal property, are preserved by allowing the defendant in such a case to assert such a right. 4. Objection was made to the statement made by officers of plaintiff’s company, that the company never had knowledge or notice of certain facts. We think this was competent evidence. Really, it is about the only way they could prove such a fact. Of course it is not conclusive, and if the other party claim that this statement is merely a conclusion or opinion of the witness, he can show it to be so by cross-examination or other evidence. 5. As to the question involved in the last point, it is sufficient to say that it need not arise on another trial, and that the rule established in Wallace vs. Matthews, 39 Georgia, 617, and in Hargroves vs. Redd, 43 Georgia, 142, will be a guide, as they set’forth the correct principle to govern in such cases. Judgment reversed.