Rawls v. Doe ex dem. Kennedy

23 Ala. 240

• Court: Supreme Court of Alabama
• Decided: June 15, 1853
• Status: Published

Opinion

GOLDTHWA1TE, J.

Under the decisions of this court in Hallett & Walker v. Doe, 7 Ala. 332, and Doe v. Jones, 11 Ala. 63, and Kennedy v. Kennedy, 2 Ala. 571, Joseph P. Kennedy, by virtue of the deed from William E. Kennedy, obtained title to an undivided half of the premises sued for.—This title, at his death, descended to his heirs at law, who are the lessors of the plaintiff; and the only question really made upon the record is, as to the effect of the statute of limitations in divesting the heirs of their title thus acquired.

In this aspect of the case, the first question is. whether the proviso which is found in the first section of the act of 1843 (Clay’s Dig. 329 § 92) applies to the whole act, or is to be confined to the section to which it is attached. As the natural and appropriate office of a proviso is to restrain or qualify some preceding matter, we think, upon sound principles of construction, it should be confined to what precedes, unless it is clear that it was intended to apply to subsequent matter. In the present case, we can perceive no good reason why the limitation of the proviso should be extended to the second section; on the contrary, the effect of such an application would be, to give to that section a partially retro-active operation, which, although it is allowed, is not a construction favored by courts.— The whole argument of the plaintiff in error upon this point, is based upon the use of the word “ act ” in the proviso; and although this word, in its ordinary acceptation, would include the entire statute, it is not so definite in its meaning that it may not be applied to a complete and independent section, if found in connection with it. We think it more probable that the word “ act” was used as the synonyme of “ section,” than that the proviso was intended to apply to subsequent matter. We do less violence to the usual meaning of the word in the one case, than to the objects of the proviso in the other. The case of Coxe v. Davis, 17 Ala. 714, supports the view we have taken, and although the decision upon this point may not have the force of an adjudication, we all concur that the correct construction was given to the proviso in that case, and that its application was properly confined to the first section.

The only remaining question is, whether that portion of the statute of limitations- (Clay’s Digest 827 § 83,) is repealed by the statute of 1843. (Clay’s Digest 329 §93.)

By the first of these acts it is provided, that “ no person who has any right or title of entry unto any lands, shall make an entry thereon, but within twenty years after such right or title has accrued.” The second section of the last act limits all actions for the recovery of lands to ten years after the accrual of the cause of action, but contains no repealing clause.

It is unquestionably true, that, although the law does not favor the repeal of statutes by implication, yet, if the provisions of two statutes are so inconsistent that they cannot both stand together, the law repeals the first.—Campbell v. Wyman, 2 Port. 219; Kinney v. Mallory, 3 Ala. 626. Are the provisions of the two statutes we are discussing so inconsistent that they cannot stand together 1 Wo have repeatedly held, that the act of 1848 was not retro-active in its operation, (Henry v. Thorpe, 14 Ala. 103; Doe v. Haskins, 15 Ala. 619; Coxe v. Davis, 17 Ala. 714;) and the correctness of these decisions upon this point is not questioned. The subject, therefore, on which the act of 1843 operates, can only be a possession which has continued ten years subsequent to its enactment. On wrhat does the act of 1802 operate? The answer is, upon a possession of the period it prescribes, and which is not covered by the act of 1843. We say “ not covered by the act of 1843,” for the reason, that when the possession, which is required to operate as a bar by that act, becomes complete, it is then brought within, and of course governed by its provisions; but, until then, the last act cannot operate upon it. If a possession can exist under the first act, separately and independently of that which is required under the last, then, although both acts may relate to the same subject, the matter on which they operate is not the same, and the rule laid down by Judge Collier in Campbell v. Wyman, supra, applies : “ that, although two statutes be seemingly repugnant, yet, if there be no clause of non obstante in the latter, they shall, if possible, have such construction as that the latter may not be a repeal of the former by implication.”

Upon the application of this rule, it would seem to follow, necessarily, that the act of 1302 remains in force as to possessions commenced under it, until the possession is covered by the act of 1843. This construction results from the prospective operation of the last act, and is in harmony with the general principles of law, and the spirit of the English as well as the American decisions, (Wilkins. on Lim. 140 to 147; Cochran v. Spiller, Vern. & Scriv. 468; Eakin v. Rawle, 12 S. &. R. 330; Williamson v. Field, 2 Sanf. Ch. Rep. 533 ;) and we may also add, that it is in conformity with the doctrine of the civil law.—Delvincourt Code Civil 633; 2 Vazeille Traite des Prescriptions, Art. 789, 790.

A still stronger argument, however, in support of the conclusion to which we have arrived, is to be found in the intention of the legislature as deducible from the act of 1843- Upon this matter we think there can be no difference of opinion. The statute speaks for itself, and says, that the bar arising from adverse possession is to be diminished- in one class of real actions to one fourth, in writs of right to one third, and in all other real actions to one half of the time which had previously been required; thus being, in effect, a legislative declaration, that the time which was necessary under the old law to effect a bar, was too long ; and in the face of this declaration, we are called upon to sustain a construction directly the reverse of that which is indicated by the act, as the policy of the law — a construction which rvould, in many instances, have the effect of increasing the time required to complete a bar, and which, in extreme cases, would have tbe singular effect of adding to tbe possession the same number of years which the legislature, in effect, declare ought to be taken from it. It would present a singular anomaly, not to say absurdity in legislation, for the law-maker to declare that the period of possession required to bar an outstanding title was too long, and at the same moment enact a statute which would increase that period. To give to the statute the construction insisted on, would not only be in violation of well settled legal principles, but directly subversive of the will of the legislature, and if adopted must tend materially to impair the confidence of the community in the soundness and practical good sense of legal distinctions.

We have elaborated our views as to the operation of these statutes, more than we should have done, for the reason, that it has been urged, that the question we have discussed is not an open one in this court — that a different construction was given to the act of 1843, in the case of Henry v. Thorpe, 14 Ala. 103, and that the construction there given was recognized and affirmed in the later cases of Doe v. Haskins, 15 Ala. 619, and Coxe v. Davis, 17 Ala. 716. If this be so, and the construction thus given was made under such circumstances as to give to these eases the force of adjudications upon the questions here presented, whatever may be our own views as to their correctness, we should feel bound, from a just regard to the rights of others, who may be supposed to have acquired titles under them, to adhere to the rule which they have established. The evils arising from a -wrong decision, great as they may bo, would, in our opinion, weigh but little, in comparison with the consequences which might ensue to ■ the community from the establishment of a precedent, under which the most solemn adjudications of this court in relation to the titles of real property might be questioned and abrogated. The doctrine of the English courts is, to adhere to the authority of adjudged cases, “ where they have been so clearly, so often, or so long established, as to create a practical rule of property, notwithstanding they may perceive the hardship, or not perceive the reasonableness of the rule”. — 1 Kent 478.

“The absurdity of Lord Lincoln’s case,” said Lord Mansfield, “is shocking; however, it is now law.”—Doe v. Pott, Doug. 695. But we must he careful to confine this rule, as to the authority of adjudged cases, to the points actually decided, and the true principles of the decision. In every court, if a case varies from the facts and circumstances of preceding authorities, the judge is at liberty to found a new decision on these circumstances, (Lord Eldon, 8 Dow. 112); and it has never been asserted, that we are aware of, by any court, that every thing which is said by the judge, in delivering his opinion, is to be taken as law, or that his argument, upon legal questions, not properly arising upon the facts of the case, is to be regarded with the deference due alone to the true principles on which the decision should rest.—Best, C. J., in Richardson v. Mellish, 2 Bing. 229. With these remarks, we proceed to an examination of the several cases which are relied upon by the defendant in error, to sustain the position that the act of 1802 is repealed by the act of 1843.

In Henry v. Thorpe, supra, which was a writ of right barred in thirty years under the ninth section of the act of 1802, the action was brought in Í845, and the adverse possession commenced in 1818. Collier, C. J., who delivered the opinion of the court, in stating the question presented, says : “ We come now to consider the case with respect to the statute of limitations. The statute of thirty years had not completed a bar in 1845, when the present action was instituted, and the question is, whether that statute, in connection with the act of February, 1848, or the latter in itself, constitutes a bar. It is contended by the defendants that the acts of 1802 and 1843 must operate proportionally, and that, as five-sixths of the period of limitations prescribed by the former had elapsed before the latter was enacted, one sixth of the time prescribed by the act of 1843 being added, the bar would be perfect.” The judge then proceeds, “We have not been able to find any decision of a court recognizing the common law, in which the time elapsed under a repealed statute of limitations has been taken into account, to help out the prescription of the new law, when the period required by the old enactment had not expired previous to its repeal. Such a doctrine is not supported by the civil law. The citations of the counsel for the plaintiff show, that civilians 'do not entirely concur in their opinions on this question ; yet the majority of them, and the best reasoned discussions, maintain that it is competent to modify the terms of prescription at pleasure, and where the prescription has not been completed when the law was changed, the past shall be effaced, and the substituted law shall determine the time, that bars a recovery. It is certainly allowable, and perhaps would be altogether just, that effect should be given to the time past, whenever a change is made in the statute of limitations, so that the term may not be protracted ; but, if no such provision is made by tho new law, we cannot perceive by what authority the courts can give to both statutes a proportional operation. The latter, if not an express, will operate as an implied repeal of the former, and thus destroy its effect in totoP It is obvious from the statement of the case, that the question as to the repeal of the act of 1802 by that of 1843, was not presented upon the facts. The possession commenced in 1818 ; the action was brought in 1845 ; so that thirty years, the time required under the first act, had not then expired. The bar was not complete under the second act, because it had not then been passed ten years. The only question presented wTas, the one stated in the opinion of the court, which we have quoted. The decision was correct, for the reason, that the bar was complete under neither act, when the action was commenced. The question as to the repeal of the first statute does not appear to have been made by the counsel, nor did it properly arise upon the record ; and the conclusion that such was the case, was simply stated by the judge by way of argument, and appears to have been based upon the analogies of what he wrongly conceived to be the doctrine of the civil law in relation to prescriptions. — Delvineourt and Vazeille, supra. The vice of the opinion is not in the result, but in the course of reasoning by which the result is arrived at. It is evident that this case cannot be regarded as an adjudication of the question.

In Doe v. Haskins, 15 Ala. 620, the time of the commencement of the action does not appear from the statement of the case in the reports; but we have looked into the record, and find that the action was brought in 1847. The defendant relied on possession under a bond for titles executed in 1836, coupled with the payment of the purchase money. His possession not being sufficient under the act of 1802, or under the act of 1843, unless the latter operated retrospectively, the question was simply as to the operation of that act. Collier, C. J., rests the case on Thorpe v. Henry, supra. Here, also, the decision was correct; but the question as to the repeal of the act of 1802 was not involved, and the reiteration of a portion of the opinion in the former case does not render it authoritative as a precedent, except as to the point actually decided. The last case, that of Coxe v. Davis, 17 Ala. 714, does not present the question at all, and the decision, at the most, goes no further than to sustain the prospective operation of the act of 1843.

We recur again to the question, has the point under discussion-been adjudicated in either of the three cases which we have examined! We have shown, that, in neither of them, was the point directly presented, nor was its decision incidentally involved, or required to be made in order to reach the point presented. In neither of the cases had the period of possession prescribed by the act of 1802 been consummated. Under such circumstances, we cannot regard these adjudications as conclusive of the question presented upon the present record. We must regard it as before us for the first time, and give to the expressions in the opinions relied on only such weight as is properly due to them upon principle and authority.

Upon the fullest consideration of the question, we are satisfied that the doctrine argumentatively asserted in Thorpe v. Henry, supra, that a change of the period of prescription, of itself effaces the time which has passed under the old law, if not sufficient to perfect the title, and that prescriptions commenced under the old law, in all cases in which they were not complete at the time of the change, must be determined by the new law, cannot be sustained. We hold that the statute of 1802 is not repealed by the act of 1843, and that prescriptions commenced under the first act are governed by it, until they fall with the operation of the last; and the consequence is, the possession of the defendants below for more than twenty years before the commencement of the action, furnished a full defence as to Oscar Kennedy.

The result is, that upon the case made by the record, the plaintiff was entitled to recover, on the separate demises laid in the declaration from Charles G. Shrieve and Mary his wife, and Ella Walker, one undivided sixth of the lot described in the consent rule, on each demise; the rule being, that where the statute runs against one tenant in common or co-parcener, its operation as to him does not affect the co-tenants who are within the saving of the statute, upon separate demises by them.—Roe v. Rawls, 2 Taunt. 441; Lewis v. Barksdale, 2 Brock. 426; Jackson v. Sample, 1 John. Cases, 231; Doolittle v. Blakely, 4 Day 265; Sanford v. Button, ib. 310; Cullen v. Motzen, 13 S. & R. 350. The court, therefore, erred in giving judgment for the whole of said lot, and its judgment must be reversed, and, under the rule established in Edmonds v. Edmonds, 1 Ala. 401, the cause must be remanded.