Wheeler v. Brewer

[116] The opinion of the court was delivered by Royce, Cn. J. The statute of 1797 was designed to conform to the ancient rule of construction, that after a statute of limitation had commenced running upon a cause of action, it would continue to run, notwithstanding any practical impediment or legal disability, which might occur. And the saving provision of that statute, in reference to the matter now under consideration, was accordingly extended only to the case, where the defendant was absent from the state, when the right of action accrued. The statute of Nov. 9, 1832, changed that rule, by excluding from the computation of time, under the statute, the period of the defendant’s absence from the state, if he went away any time before the action was barred. The present statute» Rev. St. Ch. 58, sec. 14, has combined the two former provisions. And by all the statutes this saving of the plaintiff’s right has been limited to the case, where the defendant, while so absent from the state, has not had known property within the state, which could be attached by the common and ordinary process of law. The only question is, whether the present defendant had such property within the state, during the period of his absence. It was decided in Tucker v. Wells, 12 Vt. 240, that actual knowledge of the property and of the defendant’s title to it need not be possessed by the plaintiff, if by reasonable diligence he would acquire that knowledge. But in order to warrant this inference, and thereby to bar the action, it has been uniformly holden, that the defendant’s ownership of'the property must be notorious to such an extent, that it would not escape a reasonable search and inquiry on the part of the plaintiff. Hill v. Bellows, 15 Vt. 727. Sessions v. Bicknell, 6 N. H. 557. Dow v. Sayward, 12 N. H. 271. Dwight v. Clark, 7 Mass. 515. Little v. Blunt, 16 Pick. 359. In reference to the personal property the auditor reports, that it was not generally known, even in the neighborhood where the defendant had lived, in Highgate, that he owned any such property; though the fact'was known to “ several persons.” The plaintiffs lived some twenty miles distant, in another town. Now we must infer from the facts reported, that, had the plaintiffs gone or sent to Highgate to look after the defendant’s property, they would have been told by most of the people in the very neighborhood of his late residence, that he had no property there. If a different inference could be.justified^ the auditor would doubtless have so stated. And as reasonable [117] diligence could not exact an inquiry to be made of all persons, we think the property was not “ known,” within a just and practical construction of the statute. The omission of the plaintiffs to attach the land in Berkshire might properly be considered in reference to the sufficiency of the defendant’s title. That title appears to have originated in a collector’s sale, in 1847. And though the auditor refers to the vendue proceedings, he does not state, that he found them to have been regular, or even that they were shown before him. They do not appear to have accompanied his report. Neither does it appear, that the land has yet been in the actual possession of any one for the period of fifteen years. Now it has not been considered sufficient in this state, to show that a writ might legally have been served, for the mere purpose of keeping the demand alive, as held in Byrne v. Crowninshield, 1 Pick. 263, but we hold that the property must be capable of yielding a substantial benefit to the plaintiff. The language of Williams, Ch. J., in Hall v. Bellows, before cited,— is even stronger than .this; he says, — “ The defendant should’ prove that he had known and visible property, from which the plaintiff might have satisfied his demand. But the present being, at least, a stronger case on this point in favor of the defendant, than that of Hill v. Bellows, we prefer to waive a decision upon the apparent sufficiency of the title, and to inquire merely, whether the defendant’s ownership was sufficiently known to satisfy the statute. The report finds, that the defendant never lived upon the land, nor even in the town of Berkshire, after he took the deed.from his father, John G. Brewer. The father continued to occupy the land as before, had it regularly placed in the list in his name, and does not appear to have avowed himself to be the defendant’s tenant. It is found, that the plaintiffs had no actual knowledge of the defendant’s claim to the land. And if, under these circumstances, the plaintiffs were bound to search the town records in Berkshire, they must have been equally bound to search all town records throughout the state; for the statute does not go upon constructive notice, but upon knowledge in fact, either possessed by the party or to be attained by reasonable diligence. We think the Berkshire land was not “known property ” within the statute, and that the judgment below must be affirmed.