Power v. Telford

Chalmers, J., delivered the opinion of the court. Certain property was set apart, in 1870, as exempt to the widow and children of one Duckworth, under and by virtue •of the exemption act of 1865. The widow married again, in 1874, and thereby, under the statute referred to, lost her interest in the property, which became exclusively the property of the children. Hardin v. Osborn, 43 Miss. 532. They brought this suit for it in 1881, and the court below charged that they could not maintain the action because more than one year had intervened between' the accrual of their exclusive right and the bringing of the suit. This was erroneous. Under the Code of 1880 there is no special statute of limitation governing the action of re-plevin, and it is barred only by the same lapse of time that bars other suits for the recovery of personal property, that is to say, by six years. It is true that more than one year intervened between the accrual of plaintiffs’ right and the change in the law by the adoption of the Code of 1880 ; but this does not affect the result. While it is not competent for the Legislature to so alter a statute of limitation as to divest a title acquired and made perfect under a pre-existing statute, this is ■only so where some right of property has been acquired under the pre-existing law, or where all remedies of every soi't have become barred at and before the adoption of the new statute. A party in possession of property may acquire a vested right in it by flow of time, but he can never acquire a vested right in or against any particular reitoedy. So long, therefore, as there remains to the owner any form of action by which the possession of the defendant may be divested, he has acquired no title, and no right of property. This being so, it is entirely competent for the Legislature to give the true owner additional remedies, or to restore to him •an old one which has been lost by time. Until the possessor [200] has obtained either title or immunity from all suit, the whole subject of remedies rests within legislative will and may be varied at pleasure. Coolejr on Const. Lim. 361. The widow, in the case at bar, held the property in question for more than one year under the Code of 1871, and so-long as that Code remained in force could not have been proceeded against by action of replevin, but she was always liable to deprivation of that possession by detinue or trover. Until the period of limitation against these and all other remedies had expired, it was entirely competent for the Legislature to extend the period of limitation for the action of replevin, and this it did by the Code of 1880. The instruction was incorrect and should have been refused. Two of the horses seized under the writ of replevin had ■been received by the widow in exchange for two of those which came to her hands from the estate of the deceased husband, and these the court correctly instructed the jury, could not. be recovered in replevin. Property which has undergone a change of form in the hands of the defendant may be recovered by the true owner only so long as it remains substantially the same, and the court is able to say that the one article is composed of the material of the other ; but replevin is never maintainable where there has been a complete change of articles, so that there no longer remains any identity. In such a case, the party aggrieved must resort to his action for damages, or other appropriaté remedy. . Wells on Replev., sect. 213, et seq.; Silsbury v. McCoon, 3 N. Y. 379. Eevei’sed and remanded.