Blackmore v. Gregg

The opinion of the Court was delivered by Sergeant, J. The Act of 26th of March 1785 has been considered as our Statute of Limitations, in respect to real estate, as well for rights accruing by descent, as by other means of acquisition. It has uniformly been the guide on the subject, and estates have been adjusted and divided according to the tenor of its provisions. Its enactments are clear and positive: they embrace rights descended or accrued, and apply to those derived from ancestors and predecessors; and its title is, an Act for the limitation of actions to be brought for the inheritance or possession of real property. It cannot readily be conceived that more than half a century should have elapsed without its having been suggested before, that it was controlled by the provisions of the 18th section of the Act of 1794, had there been any ground for such suggestion. Nor has any satisfactory reason been given, why an heir should have twenty-one years allowed to him, before he is barred of his [188] right, as against a stranger who takes adversary possession, and yet should be cut off, as against a co-heir, if he makes no claim within seven years. The truth is, the Act of 1794 was passed for a different purpose. Its object was, as is recited in the title, to provide for the descent of intestates’ real estate, and distribution of their personal estates. It proceeds therefore to regulate the descent from the intestate, but there is nothing in it to show that the legislature intended to repeal or modify the Act of 1785. To give it this construction, the words of tíre Act of 1794 should be clear and positive; yet there is nothing to found an argument upon, but some loose and ill-chosen expressions in the Act of 1794, in which the draftsman has used certain words more appropriate to real than personal estate, such as title accrued, heirs, &c., though at the .same time he uses the word shares, which has throughout the Act been applied to both real and personal estate; and in the commencement of the section confines it to the intestate’s “ relations and persons concerned,” which are applicable, when properly used, to personal estate only. In making the Act of 1794, there was no necessity for a limitation law, as to real estate — that had been fixed by the Aet of 1785. The legislature, therefore, say nothing of the Act of 1785, though they repeal expressly the intestate Acts of 1705 and 1764; and re-enact the provisions of the Act of 1705, as to the seven years, with modifications. The Act of 1705, when examined, shows clearly the distinction between real and personal estate, in the minds of the legislature of that day. For, in the 12th section, it provides, in case of escheat, for a restoration of the personal estate, where claims are made within seven years after the decease of the intestate by his relations; but as to the heir, it allows twenty-one years to appear and traverse the inquisition. The construction, then, of the words, relations and persons concerned, in the Act of 1705, is obviously confined to the claimants of the personal estate, and the Act of 1794 employs the same terms of which the meaning no doubt had long been established and acted upon. What was the construction of the Acts passed prior to 1700, of which several have been cited by the counsel for the plaintiff in error, seems not to be very clear. Acts were at that time reenacted every few years, probably on account of repeals by the king and council. The laws prior to 1700 were all repealed in that year, and none of them have been found since amongst our editions of the laws, except as matters of history. If these ancient enactments did apply to real as well as personal estates, they were soon abandoned as inconvenient; for the Act of 1705, which is the year when our Acts of Assembly first began to assume a scientific cast, makes a clear distinction between them; and it has subsisted in general understanding and practice ever since, so far as we have any knowledge on the subject. [189] We are of opinion that the court below was right in holding that the 18th section of the Act of 19th of April 1794 extends only to the personal estate of the intestate, and that the object of it was to enable the administrator or executor, at the expiration of that period (subject to the savings in the proviso), to pay over to the other representatives of the intestate, the balance in his hands, with safety to himself; in analogy to the same period of time given by other Acts to creditors to make claims, in order to preserve their liens against the estate; and to those which create the presumption of death after an absence of seven years without being heard of. The second and third errors are not substantiated. The court below' stated the principles of law applicable to the case by reading to the jury their own opinion in 10 Watts 164, 165, 166, so far as the opinion did not refer to a state of facts not in evidence in this case; and also the opinion of the Supreme Court, 10 Watts 189, 190; and then told them it was for them to say from the testimony, whether O. Ormsby entered in hostility to the claim of his niece, or whether they could discover, from the acts or declarations of O. Ormsby before 1825, any ouster of Mary Swazy. I cannot perceive the grounds of the objection to the judge’s reading the principles of law from a reported case, where the very doctrine on the subject had been discussed and settled. And according to those principles the question was one of fact, whether Oliver Ormsby had entered in hostility to, and ousted Mrs Swazy, which the judge properly left to the jury to judge of from the whole testimony, and not from a partial view of some of the circumstances of the case, as it appears to have been presented in the defendant’s point. Judgment affirmed.