Korn v. Browne

The opinion of the court was delivered, by Read, J. — But one question has been argued in this case, whether the 7th section of the Act of the 27th April 1855 has a [57] retrospective as well as a prospective operation with regard to ground-rents. “ After a lapse of twenty years, bonds and other specialties, merchants’ accounts, legacies, mortgages, judgments, and indeed all evidence of debt excepted out of the statute, are presumed to be paid. The court will not encourage the laches and indolence of parties, but will presume, after a great length of time, some compensation or release to have been made.” “ The rule of presumption, when traced to its foundation, is a rule of convenience and policy, the results of a necessary regard to the peace and security of society.” The lapse of twenty years, without demand of payment, is evidence from which a jury may presume payment of the arrears of ground-rent. “Those only,” says Mr. Price, “who are accustomed to make or read briefs of title in Philadelphia, going back to the times of the first settlement, know how frequently occur ancient rent-charges and ground-rents, which the owners of the present day never heard of, and which generally have no doubt been honestly extinguished; while making this note the writer has such a single brief before him for an opinion, in which no less than three such charges occur as blemishes, grants or reservations more than a century ago, which no person living has any knowledge of.” “ The law raises a legal presumption that a mortgage on which interest has not been paid for twenty years has been paid, and bars the recovery; and why should a ground-rent have a greater immunity against the presumption of extinguishment ?” It will be observed that all these considerations apply most strongly to existing evils, where no payment, claim or demand had been made for thirty, forty, fifty or one hundred and fifty years, on account of or for any ground-rent, and it was a grievance which, after the lapse of three years, the 7th section of the Act of 1855 was intended to put an end to. The act was “ to amend certain defects of the law for the more just and safe transmission, and secure enjoyment of real and personal estate.” It was a clear defect in the law, and the legislature applied the limitation of twenty-one years as to other real estate, to this species of real property, so that twenty-one years’ adverse possession bars all title to both land and ground-rent. The 7th section did not go into effect for three years, and gave ample time to all owners of ground-rents to make claims and demands for the same, so as to prevent the bar of the statute. This prospective commencement makes the retrospective bar not only reasonable but strictly-constitutional. In Smith v. Morrison, 22 Pick. 430, it was held, the revised statutes providing that all actions upon judgments shall be barred, unless commenced within six years next after the causes of action shall accrue — such provision was not unconstitu [58] tional as impairing the obligation of contracts, since, as it was enacted on the 4th of November 1835, and did not go into operation until the 1st of May 1836, the creditor had an opportunity in the interval to bring his action on any such judgment, recovered more than six years before the 1st of May 1836. In Peirce v. Tobey, 5 Met. 172, the court say, “these statutes may well apply to contracts then in existence, allowing a reasonable time for creditors to institute their actions before the statutes took effect: Smith v. Morrison, 22 Pick. 430; Penniman v. Rotch, 3 Met. 216.” The case of Smith v. Morrison, 22 Pick. 430, is approved by Mr. Sedgwick, in his Treatise on Statutory and Constitutional Law, p. 691. A similar idea in a different form is expressed in Ross v. Duval, 13 Pet. 64: “ It is a sound principle,” say the court, “ that where a statute of limitations prescribes the time within which suit shall be brought or an act done, and a part of the time has elapsed, effect may be given to the act; and the time yet to run being a reasonable part of the whole time, will be considered the limitation in the mind of the legislature in such cases.” A pregnant example of a statute bar is to be found in the 6th section of the Act of 22d of April 1856, barring resulting trusts in five years, with its two years’ proviso. We therefore think it was error in the learned judge, in his answer to the defendant’s 3d point, to say, “ I do not think that the Act of 1855, upon which this point is based, applies to this case.” We think it did, and as the plaintiff did not prove any claim or demand or payment, or any declaration or acknowledgment of the existence of the ground-rent within twenty-one years, the statute presumption operated an extinguishment, and the ground-rent became irrecoverable. Judgment reversed, and venire de novo awarded.