Finley v. Hogan

Wood, J. It is within the power of the legislature to limit the period for the disturbance of one who holds the actual, adverse, open, exclusive and continuous possession of land under a donation deed. Cooley, Tax. 556; Florida Savings Bank v. Brittain, 20 Fla. 507. They have fixed the period at two years. Legislation of this character is not like that which attempts to make good by the lapse of time, as against the true owner in possession, that which was bad from the beginning. Section one of the act of January 10, 1857 (Sand. & H. Dig. sec. 4819), is a statute of limitation, and those who come within its terms acquire a perfect title against the world. Of course this does not affect the privilege of redeeming. Sand. & H. Dig. sec. 6615; Bender v. Bean, 52 Ark. 132. The legislature has made no exception in favor of the owner who has paid his taxes, and we can make none. What the eminent jurist said about this statute in Douglass v. Flynn, 43 Ark. 398, was not germane to the question there presented, and, as he frankly confesses, was but the expression of his individual views. A different principle prevails here. The owner has been deprived of the dominion over his property by one who entered under color of title, and, in this case, it is not contended that the deed is not good upon its face. Thus, by the actual occupancy of the adverse claimant, the owner is notified, or has the opportunity, upon inquiry, to know that one is excluding him from that possession to which he, as owner, is entitled. The law gives him the right to recover his own from the moment the adverse possession began, and this right continues until the two years have expired. The holder of the donation deed is certainly blameless for entering upon and taking peaceable possession of the land which it calls for, and which is unoccupied. If the owner, having the right of action for possession, neglects to put the law in motion for that purpose for the period of two years, and the adverse holder continues to enjoy the possession under his deed for that time, thereafter his title should be quieted, and the real owner forever barred. Mr. Blackwell, in speaking of limitation statutes in general, says : “ There must be a period of time fixed by positive law within which a right shall be prosecuted in courts of justice. Public policy demands the enactment of such laws, and they are universally sanctioned by the practice of nations and the consent of mankind ; especially those which give peace and confidence to the actual possessor and tiller of the soil.” Blackwell on Tax Titles, sec. 896. This is just as applicable to the statute under consideration as any other, where there is actual adverse possession for the time it prescribes. See the following: Cooley, Tax. 555, et seq.; Cooper v. Lee, 59 Ark. 460; Woolfork v. Buckner, ante, p. 163; Helena v. Hornor, 58 Ark. 151; Gates v. Kelsey, 57 Ark. 523. See also Kessinger v. Wilson, 53 Ark. 400, and authorities there cited, on short statutes of limitations; Groesbeck v. Seeley, 13 Mich. 330. It is unnecessary to discuss the other questions. No error in refusing to transfer to equity. The judgment is affirmed.