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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 359 With a view of coming immediately to the question arising under the statutes of limitation, I shall avoid the discussion of several questions which have been elaborately argued at the bar, but which, in the view I have taken of the case, are not absolutely necessary to be determined in order to decide it. I shall not inquire, therefore, whether the several matters alleged in the complaint as fraudulent suggestions or concealments of material facts are in their nature sufficient to avoid a patent granted subject to quit-rents and conditions for the settlement of the land, nor whether the fact that the alleged fraud was committed, if at all, at a period so remote that no testimony now extant could be expected to be found to explain the transaction, if susceptible of explanation; nor whether the act of 1830 (Lawsof 1830, 404, ch. 323), by which "the right reserved to the state of vacating the grants made by patent founded upon the condition that actual settlements should be made within the period mentioned in the patents," was released by the legislature, applies to grants made by the crown before the revolution, or is confined to such as were subsequently granted by the state. For the same reason I shall reserve a final opinion upon the important question, whether the people of this state, by the revolution and the constitutional and statutory provisions of that period, succeeded to any rights which the crown may have possessed, of applying to the courts to vacate this grant on account of fraud. It is conceded that the patent was not void, but only voidable. (Jackson v. Lawton, 10 John., 23;Jackson v. Hart, 12 id., 77; The People v. Mauran, 5Denio, 389.) The title to the land, therefore, passed to the patentees. The statute affirming the transmission of the rights of the English government to the people of this state, declares the transfer to be of "all messages, lands, tenements and hereditaments, and all rents, royalties, franchises, prerogatives, privileges, escheats, forfeitures, debts due, duties and services." (1 *Page 360 Greenl., 31, § 14.) None of these words seem entirely appropriate to describe a right of action like this. The 36th section of the constitution of 1777 declares that nothing therein contained shall be construed to affect any grants of land made by the authority of the king, prior to the 14th day of October, 1775. The learned justice of the supreme court, whose able opinion in this case we are reviewing, a most respectable authority upon questions of title to land depending upon ancient grants, has declared that this provision of the constitution has always been regarded as confirming the royal patents granted before the revolution. It was this constitution which, as respects this state, dissolved the former political institutions by which the colony was governed, and organized the new sovereignty; and it is not a forced exposition of the provision to hold that it was intended to withhold from the government about to be created the right to affect or impair the grants of its predecessor. If in connection with this consideration we look at the provisions of the statutes recognizing the right of the state to the quit-rents and furnishing a system for their collection, and afterwards for their commutation, it will be difficult to maintain that such a suit as this is consistent with any fair construction of the acts of the first convention and of the early legislatures upon these patents. But, as before remarked, it is intended to pass over this branch of the case without expressing a definite judgment upon it.
The statutes of limitation which bear upon this case are those of 1788 and 1801. (Stat. of 1788, ch. 43, 2 Greenl., 93;Stat. of 1801, ch. 189, 1 Webst., 619.) The act last referred to was not revised in 1813, but continued the law until the revision of 1830. The new statute of limitations then passed was prospective, and does not apply to any case where the right of action had accrued prior to its passage. (2 R.S., 300, § 45;McCormick v. Barnum, 10 Wend., 104; Van Hook v.Whitlock, 3 Paige, 416; Cole v. Irvine, 6 Hill, 634.) The cases where the right of action had *Page 361 previously accrued were to remain subject to the laws then in force. So again when the Code of Procedure came to supersede the statute of limitations passed in 1830, there was a similar exception as to rights accrued, which were left to be governed by the antecedent provisions. (§ 73.) These two acts of limitation must, therefore, be laid out of the case. The right to impeach the patent for fraud accrued at the time it was issued, and the breach of the condition as to cultivation and settlement took place, at farthest, at the expiration of seven years from the date of the patent, or in 1744.
The doctrine of the common law was, nullum tempus occurritregi; and this principle, though it has a certain association with the idea of royal prerogative, has nevertheless been generally adopted in this country upon questions arising between the government and its citizens. (Jackson v. Winslow, 1John., 80; Jackson v. Gumaer, 2 Cow., 552; Stokes v.Dawes, 4 Mason C.C.R., 268; United States v. Hoar, 2Mason, 311.) But the doctrine both in England and in this country has been qualified by statutes limiting the time within which the government must assert its claims in the courts of justice. The first act of limitation of suits by the crown was the 21 James I., ch. 2. (Vin. Ab., Prerogative, H, e, 2;Coke, 3 Inst., 188.) It enacts that the king, "his heirs or successors, shall not hereafter sue, impeach, question or implead any person or persons, for or concerning any manors, lands, c., nor make any right, claim or demand, of, in or to the same by reason of any right or title accrued sixty years past or more and now in esse, c.," unless he "or some other under whom he claims have been answered (by force of such right or title) the rents, issues or profits thereof within sixty years next before the beginning of this parliament; or that the same have been duly in charge to the king or Queen Elizabeth within the space of sixty years." The time from which the space of limitation was to be reckoned backward, by this statute, being a fixed period, it *Page 362 gradually receded, till in the course of time it became so remote as to afford little if any protection against stale claims of the crown. Accordingly, in the early part of the reign of George III., it was reënacted in nearly the same terms, except that the time of commencing the "action, bill, plaint, information, commission or other suit or proceeding," is the period from which the time of computing the period of limitation is to commence. (Statute of 9 George III., ch. 16; Bac. Ab., D, 86; andsee Goodtitle v. Baldwin, 11 East, 488, for an abstract ofthe statute.) The first section of our act of 1788, is nearly a literal transcript of this act, except that the period of limitation is forty years, and except that the act does not take effect until the 1st day of January in the year 1800. The same comprehensive words are used: "The people, c., shall not nor will" "sue, impeach, question, or implead any person" "for or in any wise concerning any manors, lands," c.; and, as though this language might be held too narrow to embrace every method of attacking the citizen as to his lands, it is added, "or make any title, claim, challenge or demand, of, in or to the same;" and again, "within the space of forty years next before the filing, issuing or commencing of every suchaction, bill, plaint, information, commission, or other suitor proceeding."
The act of 1801 is substantially a reënactment of the one of 1788, but with considerable change and lopping off of the exuberant phraseology contained in the former statute, and in the English acts from which it was copied. It is obvious, however, that the design of the person who drew it was to embrace all the features of the former acts. All the words in those acts which are used to refer to the manner in which suits can be commenced are reduced to the two, "sue or implead." The words defining the subject of the suits to be barred are altered from "for orconcerning any manors, lands, c.," to "for or in respect to any lands," and the reference to the time of reckoning the period of limitation is "before any suit or other proceeding for the same *Page 363 shall be commenced." The exception relating to the taking of the rents and profits is changed from "have been answered the rents and profits," to "shall have received the rents and profits." The exception contained in the English acts, of the case where the premises "have been had in charge" within the time of limitation, is omitted, as it is inapplicable to any transaction known here. In short, the statute is the same enactment in a less antique dress, and in language more condensed and better suited to the fastidiousness of modern taste. It is a well settled rule that a change of phraseology in a revision of a statute will not alter the law, unless it evidently appears that such was the intention of the legislature; and this is especially so where the revised statute is an ancient one and has received a settled construction. (Taylor v. Delancy, 2 Cai. Ca., 151;case of Yates, 4 John., 359; matter of Brown, 21 Wend., 316; Theriat v. Hart, 2 Hill, 380.) There is not here the slightest reason to believe that any substantial change was intended; or, if there was, that it was of such a nature as to exempt from the scope of the enactment any description of legal proceedings respecting lands which were before embraced in it.
The present suit is in the nature of a bill in equity to set aside the patent for fraud in procuring it. It also resembles a suit by scire facias to vacate a patent; but in this last aspect it cannot be sustained. By the Code of Procedure the writ of scire facias, c., are abolished; and the remedies heretofore obtainable in those forms may be obtained by civil actions under the provisions of tit. 13, chap. 2, § 428. Section 433 provides for an action by the attorney-general in the name of the people for the purpose of vacating or annulling letters patent granted by the people of this state in certain cases, and among them cases of fraud in obtaining it; but there is no provision for any such action relating to a patent of the crown of Great Britain. A similar provision, giving a scire facias in terms, was contained in the Revised Statutes before *Page 364 it was made unlawful to call judicial writs by their right names. (2 R.S., 579, § 12.) It need not, however, be insisted that this is not a suit by scire facias, as the most favorable aspect of it to the appellants is to consider it in the nature of a bill in equity. It was long ago determined that such a suit by bill would lie in the English court of chancery; and the supreme court of this state has frequently assumed that such a bill would lie to vacate a patent for fraud. (Attorney-General v.Vernon, 1 Vern., 277, 383; 10 John., 23; 12 id., 77.)
The objections of the appellants to the application of the statute of limitations are, 1st, that this is not a suit, within the meaning of the act; and, 2d, that it is not "for or concerning any lands." In common parlance as well as in legal language a proceeding in chancery by bill is a suit in that court. Indeed that was the most appropriate term, for prior to the Code the term action was appropriated to proceedings in the courts of law. It would be easy to collect from precedents and reports instances enough of such use of the word, but I am sure it is unnecessary. Then as to its relation to land; for if it has not that feature the statutes certainly do not apply. If it is "for or in any wise concerning" any lands, it is within the act of 1788, or if by the proceeding the people "make any title, challenge or demand, of, in or to" any land, it is equally within it; and if it is within that statute, it has been shown that it is also within the act of 1801. It is true that it is not technically an action to recover the possession of land. It merely seeks to annul the only title which the defendant has to the premises patented; and the only effect, if the plaintiffs prevail, will be, that the land will belong to the state in its political and sovereign capacity as the owner of all ungranted lands, and that the commissioners of the land office will be bound to sell it to any one who will offer a fair price. (2R.S., 580, § 25.) Whichever set of words are used, they embrace in my opinion this proceeding. But we are not without *Page 365 authority upon the very point in question. Lord COKE, in the third Institute, has a commentary on the statute of James, which it has been seen is identical in language with our act of 1788. After citing the words, "that the king's majesty, his heirs or successors, shall not at any time hereafter sue, impeach," c., he says: "1. This clause extendeth to all manner of suits, c., either in law or in equity; 2. To all manner of courts whatsoever; 3. It extendeth not only to all manner of suits, but to all impeachments, questionings, impleadings, making of title, claims, challenges or demands." "6. So as to all suits of scirefac' or other process upon any record." It is to be presumed that when the legislature of 1788 used this same phraseology, they did so with a knowledge of the interpretation put upon it by this eminent sage of the law; and so, when the act was revised in 1801, preserving all its essential features, but pruning it of its redundant words, it is not to be supposed that it was designed to limit it in such a manner that certain legal proceedings in which the title of a citizen to his estate might be taken away, should be without the protection of the statute. So far as the allegations of fraud in obtaining the patent are concerned, the forty years, deducting seven years for the period of the war, which is excluded from the computation of both the acts, expired in 1790. The alleged breaches of conditions subsequent took place, as to one of them in three and to the other in seven years afterwards. When, therefore, the act of 1788 took effect on the 1st day of January, 1800, the people were absolutely precluded from maintaining their suit on any right which they had arising out of the alleged fraud in obtaining the patent. They could not allege the breach of condition as to clearing and cultivating the land after 1793, or that respecting the occupation of it by settlers after 1797. This suit is therefore barred by the statute of 1788. There is a provision in each of the acts prior to the revision of 1830, declaring in effect that when the government is barred by the statute, the other party shall *Page 366 quietly and freely have, hold and enjoy the land, c., against the government. This point, Lord COKE says, "is affirmative, and establishes the estate of the subject." (3 Inst., 189.) But this is unimportant, as it is a sufficient defence to this suit that the statute has run against it.
The 27th section of the Code, providing a limitation of twenty years to the people, after a patent issued by them has been declared void, is undoubtedly a qualification of the act of limitation therein contained. It is inapplicable to this case, because that statute of limitation does not apply, and also because it relates expressly to patents granted by this state, and does not extend to grants from the crown.
The award of costs against the people in the court below is said to be erroneous. Costs may be awarded against the people when they fail in a suit, as well as against a citizen. (Code, § 319.) We think it is a case in which an extra allowance might be made under § 308 of the Code, upon sufficient facts shown. Whether the amount allowed was proper under the circumstances, is a question not before us, as the papers upon which that point was determined have not been returned on this appeal. (Decker v.Gardiner, 4 Seld., 29.)
The judgment of the court below ought to be affirmed.
TAGGART, J. The first question I propose to examine in this case is whether the statute of limitations is a bar to the action. It is very clear that neither the Revised Statutes nor the Code has anything to do with the case. The action is barred by the act of 1801, if barred by any statute of limitations. The right of action accrued either in 1737, or on the day after the first Monday of May, 1745, or at the expiration of three years from the date of the letters patent.
If the right of action accrued either on the ground that the letters patent were obtained upon false suggestions, or that the interest of the Lieutenant-Governor, George Clarke, in procuring the letters patent was concealed from the council and from the crown, or because the names of twelve of *Page 367 the patentees were made use of in trust for William Corry, such right of action accrued immediately upon the granting of the letters patent. If the right of action accrued on the ground that three acres of every fifty acres of the land were not effectually cultivated within three years, it accrued in 1740; and lastly, if the right of action accrued upon the ground that thirteen families were not settled on the land within seven years after the 1st of May, 1738, such right accrued on the 2d day of May, 1745.
Unless the act of 1801 is a bar, the answer is bad and the plaintiff is entitled to judgment. It is objected that there is no statute of limitations which bars the proceedings instituted in this case.
The case of The People v. Arnold (4 Comst., 508) was an action to recover the possession of fifty acres of land. The complaint alleged that the plaintiffs had good title in fee simple and were entitled to the immediate possession of the land. The defendant answered "that no right or title to the lands and premises described in the complaint accrued to the plaintiffs within the space of forty years before the commencement of the action, and that if any right or title ever accrued to the plaintiffs the same accrued more than forty years before the commencement of the suit, and that neither the plaintiffs nor those under whom they claim have received the rents and profits of said lands or any part thereof within the space of forty years before the commencement of the suit." This court decided that the answer was a good one, but said that to constitute a bar there must be such a holding for forty years as would constitute a good adverse possession if the land had been held by an individual instead of the state.
The answer in this case is as full and complete as in that; the words "and that if any right or title ever accrued to the plaintiffs the same accrued more than forty years before the commencement of the suit," add nothing to the validity of that answer. The answer in this case goes still farther than *Page 368 in that. It sets up an adverse possession by averring that, during the whole space of forty years before the commencement of the action, the defendant and his father, and those deriving title from the defendant, have respectively been in the uninterrupted, exclusive and actual possession and enjoyment of the lands, and have received the rents and profits thereof, claiming in good faith to own and be seized of the said lands and all the hereditaments thereunto belonging, adversely to the said plaintiffs and every person whatsoever.
Judge BRONSON in the above case of The People v. Arnold, says: "The statute says nothing about adverse possession, and that is not a matter to be pleaded."
I am unable to perceive any objection to the answer in this case upon the grounds relied upon in the demurrer, if the action itself is such a one that the statute of limitations is a bar to it. Were this an action to recover the possession of lands, the case would be clearly within the principle of the one above cited. But this is an equitable action, brought, not to recover the possession of lands, but to vacate letters patent, and it is insisted on the part of the plaintiffs that it is not a suit; that the words "suit" and "action" have always been confined to proceedings at law.
The language of the act of 1801 is broad and comprehensive. "The people will not sue or implead any person for or in respect to any lands, tenements or hereditaments:" also, "the persons,c., holding such lands, tenements and hereditaments shall freely hold and enjoy the same."
The plaintiffs in this case have either sued or impleaded the defendant. The word "implead" is defined in Bouvier's LawDictionary to be "to sue or prosecute by due course of law." Admit that this term applies to a suit or proceeding at law more properly and strictly than to a proceeding or suit in equity, yet this is not, I apprehend, a sufficient reason to allow it to defeat the operation of the statute. The statute speaks also ofproceeding, in the clause, "forty years *Page 369 before any suit or other proceeding for the same be commenced." The word "proceeding" is a more general and comprehensive term than "suit" or "implead," and must include an action like the present. This is certainly a proceeding "in respect to" lands, although not a suit or proceeding for lands. There appears, then, to be no reasonable doubt that the statute of limitations is applicable to this case. If, however, there remains any doubt upon the point, such doubt is dissipated by the decision of the court of errors in the case of Humbert v. Trinity Church (24Wend., 587). In that case the plaintiffs filed their bill to settle the boundaries of certain lands in the city of New-York, and also to take an account between the plaintiff and defendants of certain other lands alleged to be held by the parties as tenants in common. The bill was filed in 1834, and the defendants had been in actual possession of the lands since 1785. The defendants demurred to the bill and the demurrer was sustained, the court holding, among other things, that the statute of limitations was a bar to the action. Mr. Justice COWEN, in delivering an opinion in this case, cites from the case ofCholmondely v. Clinton, as reported in 4 Bligh'sParliamentary Cases (old series), at page 119, where Lord REDESDALE, speaking of the statute limiting an ejectment to twenty years, says: "I take it to be a positive law which ought to bind all courts; and for that reason I have taken the liberty in another place to say that I considered it not simply a rule adopted by courts of equity by analogy to what had been done in courts of law under the statute, but that it was a proceeding in obedience to the statute, and that the framers of that statute must have meant that courts of equity should adopt that rule of proceeding." The learned justice then says: "This, it appears to me, is substantially giving up the right to qualify the statute by cases not provided in itself, even while we stand exclusively on equitable grounds." *Page 370
Both upon reason and authority, then, the defence is a valid one. The action to vacate the letters patent under which the defendant derives and holds his title is an action "in respect to lands, tenements or hereditaments." It is not, nor does it purport to be, an action to recover the possession of lands, and the act of 1801 is not confined to actions of that character, but applies where the decision of the case can in any way involve or affect the title to lands. The construction contended for by the plaintiffs would in many cases utterly defeat the beneficial operation of the statute. The plaintiffs might, in a case like the present, at the end of a thousand years after granting the patent, file their bill to vacate such patent on the ground of concealment, and recover in that action. This judgment furnishing conclusive evidence of their right to recover, the people might within forty years thereafter maintain their action for the possession of the lands. This construction, therefore, would lead to great injustice and cannot be sustained; and the judgment of the court below, so far as relates to the right of the plaintiffs to recover, must be affirmed.
The plaintiffs, however, object that the extra allowance of $1100 costs was erroneous. Section 308 of the Code provides, that if the action be for the recovery of money or of real orpersonal property, and a trial has been had, the court may in difficult or extraordinary cases make an allowance of not more than ten per cent on the recovery or claim, as prescribed in § 309, for any amount not exceeding $500, and not more than five per cent for any additional amount. It is claimed that this action is substantially for the recovery of real property, and the allowance of $1100 is attempted to be sustained on that ground. This is clearly erroneous. This is not an action for the recovery of money or of real or personal property; it does not, therefore, fall within the part of § 308 above cited. There can be no extra allowance under that part of the section in equity *Page 371 actions (so called), although such actions may be difficult or extraordinary. The phraseology of this part of the section is not like the act of 1801. That act had relation to suits for or inrespect to lands: the Code relates to actions for lands or real property. But it does not appear by the case upon what grounds the allowance was made. It rests upon the appellants to show that the allowance was an improper one. (Decker v. Gardiner, 4Seld., 29.) It does not appear from the case but that the allowance might have been made under the clause of the section authorizing an extra allowance where the prosecution or defence has been unreasonably or unfairly conducted. The judgment must be affirmed as to the costs as well as upon the merits.
All the other judges concurring in the above conclusions,
Judgment affirmed.