Bohannon v. Chapman

DARGAN, C. J. When this cause was here at a previous term, we held that a plaintiff in an action of detinue had six years, within which he might sue in the courts of this State, where the cause of action accrued here, and that the time the defendant was absent from the State, whilst the statute of limitations was running, must be deducted in computing the time necessary to form the bar.^-Bohannon v. Chapman, 13 Ala. 641. That the defendant herself has always resided in the State affords her no protection, for in ascertaining the time, during which suit could have been brought, we must deduct the time, *that .those, through whom she claims, have been absent from the State and could not be sued. There must be an adverse possession of a chattel for six years within this State, in order to give a title by the statute of limitations.. (¿Thus, if A. converts a chattel of B. and removes without the State, and afterwards returns, and sells it to C., when C. is sued, he can add to bis own possession only the time that A. held it adversely in this State, deducting the time he was absent.^ Applying this rule to the evidence, to which the defendant demurred, it is clear that the bar was not complete when, the suit was brought. The cause of action accrued first against Randolph Mailett, who took the slave from the possession of the plaintiff’s intestate in February 1836. He, however, went directly to Mississippi, carrying the slave with him, and has never since returned to this State.— About the first of November 1838, as we infer from the evidence, Isaac N. Mailett brought the slave back to Alabama and had him in possession, until the fall of 1840, when he sold him to Young F. Bohannon. In'January 1.843, Bohannon, through whom the defendant claims title, went to Texas, carrying the [699] slave with him, and there died in June of the same year, and the slave returned to Alabama in December 1843, and went into the possession of the defendant. The suit was commenced on the 31st of December 1S44. Now if we allow a month from* the time Randolph Mallett took the slave until he reached Mississippi, and add it to the time when Isaac N. Mallett returned with the slave in the fall of 1838, and then deduct the time that Bohannon was absent from the State until his death, we will find the time, during which Randolph Mallett, Isaac N. Mallett, Bohannon, and the defendant, have had the adverse possession of the slave in this State is less than five years and ten months. There had not been an adverse possession of the slave for sij years, deducting the time the parties in possession were absent from the State. It is true, that this construction of the statute may in some cases enable a plaintiff to recover of the vendee, when the action would be barred against the original wrongdoer. Thus, if A. convert the chattel of B. and retain the adverse possession for five years, and then sell it to C., and C. should leave the State, A. remaining in it, C. may be sued after he returns, although the remedy against A. might be barred. Q.t must be borne in mind that the owner had o^ie year from the lime of the purchase of C., within which to commence suit against himjand C.’s leaving the State cannot deprive him of this right, but the time of the absence of C. from the State must be deducted; otherwise we should hold that the time, during which some defendants may be absent from the State, is not to be deducted in computing the bar. This it appears to me would be contrary both to the letter and intention of the act.— Clay’s Dig. 327, §84. We think the court correctly rendered judgment on the evidence in favor of the plaintiff. This view also shows that the court did not err in overruling the demurrer to the plaintiffs replications to the third and fifth pleas. But it is insisted that the court ought to have visited the demurrer to the replication to the sixth plea back upon the first count in the declaration, as this count was defective. We do not think it necessary to examine the sufficiency of the first count, for if it were admitted that the court should have sustained the demurrer as to this count, yet the second count is clearly good, and the evidence fully sustains it. The judgment would, therefore, have been the same, had the court held [700] the first count insufficient. If this was an error it did not injure the defendant, nor in the slightest degree affect the judgment that was rendered. Let the judgment be affirmed.