The record shows that the defendant had been in the adverse possession of the demanded premises more than three years before the legislature amended section 325 of the Code of Civil Procedure by adding thereto the following proviso: “Provided, however, that in no case shall adverse possession be considered established under any section or sections of this Code unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, State, county, or municipal, which have been levied and assessed upon said land,” and such adverse possession continued until the commencement of this action, which was more than two years after the enactment of said proviso. Since the passage of said proviso the defendant is conceded to “have paid all the taxes, State, county, or municipal, which have been levied and assessed upon said land.” But it is contended by the appellant that in order to establish an adverse possession it was incumbent on the defendant to show that he had paid said taxes during the entire period of his occupancy of the land. In other words, that he must not only show that since the passage of said proviso he has fully complied with all of its requirements, but that in anticipation of its passage he did all which he would have been required to, if said proviso had been enacted three years before it was. That this would be giving to said proviso a retroactive effect is quite clear, and that it cannot have because no part of the Code of Civil Procedure “is retroactive unless expressly so declared.” (Code Civ. Proc. § 3.)
It is contended by appellant that by giving to this proviso a retroactive effect, i. e., by holding that the first three years of *265the respondent’s possession were not adverse, by reason of his not having paid the taxes levied and assessed on the land during those three years, would not be to destroy a vested right, because he could acquire no right as against the owner of the legal title by less than five years’ possession. The question in this case is not Avhether, if construed as the appellant insists it should be, the law would destroy a vested right, but whether if so construed the law would have a retroactive effect, which it cannot have because the legislature has not “ expressly so declared.”
And if it cannot have a retroactive operation it can in no Avay benefit the appellant in this case.
There is another provision of the same Code on which respondent’s counsel relies. It reads as follows: —
“When a limitation or period of time prescribed in any existing statute for acquiring a right or barring a remedy, or for any other purpose, has begun to run before this Code goes into effect, and the same or any limitation is prescribed in this Code, the time Avhich has already run shall be deemed part of the time prescribed as such limitation by this Code.” (Code Civ. Proc. § 9.)
But the counsel for appellant contends that these sections only apply to cases Avhich arose before the adoption of the Code in its original form. And that an amendment to the Code may, Avithout any express declaration, have a retroactive operation. In other words, that the amended section should be considered as though it had been originally enacted in its present form. Our OAvn views upon this point are very clearly expressed in Ely v. Holton, 15 N. Y. 598, from which we quote the following:—
“The form in which amendments, both of the Code and of the Eevised Statutes have generally been made by declaring that particular sections shall be amended so as to read in a given way, was adopted for the purpose of adjusting them to the original enactments, so that when the system should, after repeated amendments, become complete, the different parts might be put together without further revision, and thus form a perfect Code. The portions of the amended sections Avhich are merely copied without change are not to be considered as repealed and again enacted, but to have been the law all along; *266and the new parts, or the changed portions, are not to be taken to have been the law at any time prior to the passage of the amended act. ”
The Code, so far as it relates to the payment of taxes by persons holding lands adversely to the owners of the legal titles to such lands, did not go into effect until sixty days after April 1, 1878, and it did not in our opinion change the character of the defendant’s possession prior to that date, because it was not retroactive, and if not retroactive it could not; and because under section nine of said Code the time which had already run when the amendment of April 1, 1878, went into effect must be deemed a part of the time prescribed by the Code as amended.
Judgment affirmed.
Thorhtoh, J., McKihstry, J., and Myrick, J., concurred.