Barrett v. Love

on rehearing.

Beck, J.

A rehearing having been granted upon the petition of 'plaintiff, this cause was again argued by counsel originally appearing in this court for the respective parties, as well as by others who are interested in eases which involve the questions discussed before us. These arguments have been elaborate and able, and have covered the field of dispute as marked out in the discussion.

We have again, with the patience and care demanded by the importance of the questions involved, considered the ease, and have reached the conclusion that our former judgment is correct.

We will proceed, with all brevity the nature of the case permits, to present another view of the questions involved, which leads us to a very satisfactory conclusion that the decision announced in our first opinion is correct.

I. We think that confusion, to some extent, has arisen in this discussion of the case, from the failure to discriminate between the statute we are called upon to construe, and other-statutes of limitations, which are the foundations of decisions that have become familiar legal precedents. This has led counsel to the application of rules to this case which are, indeed, inapplicable.

’ That we may have a clear apprehension of the question before us, we will state the controlling facts of the case. The plaintiff, claiming to be owner in fee of the lands in controversy, brings this action to recover possession thereof. His petition shows that his title is based upon a tax deed, executed *110January 6,1868, and recorded on the 28th day of the same month. The defendant admits, in his answer, the tax title set up by plaintiff, but interposes the statute of limitations as a bar to the action. The defendant claims title to the land by a regular chain of conveyance from the government. The action was commenced in 1874, more than five years after the tax deed was recorded. The defendant was in actual possession of the land for near one year before the action was commenced. Prior to his possession the land was wild and unoccupied.

The question for determination is this: Is plaintiff’s action barred by the statute of limitations (Code, § 902) applicable-to the case ? Counsel for plaintiff insist that it is not, for the reason that defendant was not in possession of the land for a time that would enable him to interpose the statute as a defense. They maintain that the statute will not run against plaintiff, unless defendant, for the whole period of limitation, was in the actual adverse possession of the land. This view is based upon the thought that the statute cannot be invoked for the protection of one who has not, for five years, the period of limitation, held the land adversely to plaintiff. It arises from overlooking the differences between this statute and other statutes of limitations, to which the rule and doctrine of adverse possession are applied by the courts. These statutes, like our own general statute of limitations (Code, § 2529), in most cases, follow the English Statutes of 21 James I., ch. 16, and 3 & 4 William IV., ch. 27, and provide for a limitation that shall arise within a prescribed time after -plaintiff’s cause of action accrued. Our general statute of limitations is in these words: “The following actions may be brought within the times herein limited respectively after their causes accrue, and not afterwards: * *

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*111Those brought for the recovery of real property, within ten years.” Code, § 2529.

Under the express language of this statute, the period of limitation begins at the time the cause of action accrues. The courts are required to determine in each case when this event occurred, that is, when the particular cause of action accrued. In suits to recover the possession of lands, it is uniformly held that the action accrues at the time adverse possession is taken and held by the defendant, or those under whom he claims. This rule is based upon the following clear Reasons and undisputed principles:

At the common law one holding the fee simple title of lands, not occupied adversely to him, is presumed to be seized, possessed thereof. We have a statute to the same effect. Code, § 1928. This presumption of seizure continues until the owner is disseized. Where the land is held under any form of tenancy, his seizure is not disturbed, for the possession of the tenant is the possession of the landlord. He may, by his assent, suffer the possession of the tenant to continue for any time, and as long as it is held under the tenancy, it is regarded by the law as his own possession. In such case no 'cause of action arises. As long as the occupancy continues, it is presumed to be at the sufferance of the land-owner, and that sufferance is only terminated by the commencement of the action.

In the ease of the unlawful possession of land taken by a trespasser, the law does not regard the owner as disseized, dispossessed ; he is still presumed to be in the seizure, possession of the land. The trespasser remains in the possession by the sufferance of the owner, and acquires no right thereby.

Disseizin occurs only when an entry is made upon lands, i. e. possession taken, unlawfully and without assent of the owner, with the intent to hold the estate therein under elaim adverse to him. This is the meaning of the word disseizin, as used by the writers of the common law. When such an •entry is made, it is not with the assent of the owner, nor held *112by his sufferance. The possession of the usurper is not under the owner, but independent of him. The owner is, therefore, said to be ousted of his freehold, because the presumption of law that he is in possession of the land no longer exists. This presumptive possession is terminated by the entry of the adverse claimant who turns him out of possession — ousts him of. the freehold.

Now, in the case of a tenant, or one whose entry was with the assent of the owner, or lawful (congeable, as the .'old writers call it), the possession held by him, as we have seen, was in subordination of the owner, and by his sufferance, which was only terminated by suit brought, and the cause of action, therefore, arose at the commencement of the suit. But in the case of the disseizor, the entry is not congeable (with assent of owner or lawful) and the iiossession is not held by sufferance of the owner, but by claim in conflict with his title. An action at once accrued; the entry of the disseizor marked the time of its accruing.

A few additional remarks, by way of illustration, may be added, if it be worth while to attempt to make clearer that which is so very plain. One holds my land with my assent, or by my sufferance. His possession in law is my possession as long as my assent or sufferance continues. I may at any time resume the possession in myself, in the maimer pointed out by law, namely, by action. It is clear that my cause of action to acquire in myself the possession held for me arises when my assent or sufferance is terminated, which only happens when I take the proper steps to acquire the possession by instituting suit. But where one holds my lands adversely to my title, his possession is not regarded by the law as my possession, for he holds not by my consent or sufferance. My cause of action arises against him upon his entry under adverse claim.

For these reasons, and upon these principles, it has been uniformly held, under statutes limiting actions for the recovery of land to a period commencing with the time when the *113cause of action accrued, that the bar did not exist, and the limitation did not run except in favor of disseizors, namely, those who entered or held land under a claim adverse to the party bringing the action. Hence, adverse possession is held by the courts to be necessary to support the, plea of the statute of limitations in an action to recover land.

It is entirely unnecessary to enter into a discussion of the doctrine of adverse possession, and inquire when it exists. For the purpose of this case, it may be admitted that defendant at no time, after the acquisition of the tax title by plaintiff, held the land adversely to him.

II. It cannot be doubted that the Legislature may so form a statute that, in eases of this character, an action for lands held by the assent or sufferance of the owner, not adversely, wül be barred within a prescribed time. The Legislature may, in such cases, require titles to be enforced by the acquisition of the possession of lands, against those who do not hold adversely, within a prescribed period, and bar recovery thereafter. Of this there can be no question. Seasons founded upon sound policy may be adduced to support such statutes when the titles barred thereby are based upon judicial or tax sales, or upon other methods of alienation without the assent of the party whose lands are thereby conveyed.

The statute invoked by defendant in this ease is of this character, as we shall now proceed to show. It is in the following language: “No action for the recovery of real property sold for the non-payment of taxes shall lie, unless the same be brought within five years after the treasurer's deed is executed and recorded.” Code, § 902.

The commencement of the period of limitation is fixed by the words of the statute at the time when the title fully vested under the tax deed, namely, the recording of that instrument. It is not, as the general statute of limitations of our State and those of most other States, the time when plaintiff’s cause of action accrued. Under the rules of law above stated, the holder of the fee simple title is presumed to be in possession, *114if the land be not held adversely to him. But the holder of the tax title can recover in himself the actual possession, if the land be held by the former owner, only under the tax deed by action. This action cannot 'be brought, under the express words of the statute just quoted, after the expiration of five years from the day the tax deed was recorded. The character of the possession of the defendant, whether it be adverse or not, has nothing to do with plaintiff’s right of action, if defendant resists recovery. Of course, if defendant admits the tax title, and that he holds under plaintiff, and offers no defense to recovery, plaintiff would be entitled to judgment.

The petition in this case alleges that defendant is in the possession of the land. Indeed the action could not be maintained unless such averment were made and proved, if put in issue. The act of plaintiff in bringing the suit and his averments in the petition, as well as the allegation of defendant’s answer and the proof, show defendant to be in the actual possession of the lands. By his pleadings he resists plaintiff’s right to recover. The character and nature of his possession, whether adverse or otherwise, and the time of its duration, we have seen are immaterial.

III. Something has been said in argument as to the right of the holder of a tax title to maintain an action to recover possession, when the land is wild and unoccupied. If no one is in actual possession, there is no necessity for the action, for the holder of the title may'enter without it. But, if in such ease, an action is brought and the possession is alleged to be in defendant, and the fact is admitted by his answer, the plaintiff is bound by the case made by the pleadings, and cannot be permitted to show that defendant is not in actual occupancy of the land.

IV. There has also been something* said as to the rule which must govern in the application of the statute under consideration to cases where actions are brought to quiet titles, by the holders of the tax titles, when not in possession of the *115land, -which they may do under Code, § 3273. The questions presented in the discussion upon this point need not be considered, as they do not arise upon the facts of this case.

Y. It is proper here to notice objections urged against the conclusions we have reached, which, as we believe, are based upon misapprehension and misapplication of the doctrines we recognize.

The seizin of land not held adversely is in the holder of the title. If it be unoccupied, the owner has the const/rucbive possession. But it will be remarked that this is a presumption of law, and the rights of the owner are not the same under this constructive possession as under actual possession.

If lands are unoccupied, one who enters upon them under a bona fide claim of title does not violate the law. Indeed, the law respects the -possession thus taken, and the statute of limitations, after the time prescribed has expired, will bar an action against him.

But one who enters, under like claim of title, upon occupied lands, does violate the law, and the possession he acquires will be restored to the owner in an action of forcible entry and detainer. It is a grave error to regard the holder of the patent title as a violator of law, when he enters upon the actual occupancy of lands, before unoccupied, upon which a tax title rests. If, therefore, our conclusions serve as an invitation to the holders of patent titles to take possession of unoccupied lands sold for taxes, they are invited to do no more than the law sanctions. The owners of unoccupied lands hold them subject to the right of bona fide claimants to enter upon their possession. There can be no exception in favor of holders of tax titles.

YI. Actual possession under a tax title is protected by the law as possession under other titles. No right would be defeated, nor the title made invalid by the unlawful disturbance of the actual possession of one holding a tax title. The law gives the holder of such title a remedy for the re*116covery of the actual possession of land of which he was unlawfully deprived.

YII. It is said that, under our decision, a case may occu in which the'tax title holder will be’ remediless. It is this : Four years and three hundred and sixty-four days have expired since the tax deed was recorded. On the last day of the five years, in which, under the statute, the action may be brought by the holder of the tax deed, the former owner enters upon the occupancy of the land. The action is barred the next day, and the tax title is defeated. The owner, it is said, lost the land because he had one day and no more in which to bring his action! This proposition of fact is supposed to demonstrate the injustice of our conclusion, and afford a firm foundation for an argument which overthrows it. The proposition, as to its facts, maj be fully admitted. It will be readily seen that the holder of the tax title is in precisely the same condition he would occupy, as to the alleged injustice, in ease the former owner had been in actual possession when the tax deed was recorded, and continued his occupancy for five years. In such a case, it is admitted on all hands, the tax title is barred in five years. Now the holder of the tax title did not bring his action on the last day of the five years, and lost his land because he had that last day and no more —no time after the last day — in which to bring his action. It is true he had five years in which he could have brought his action and secured the land. And he had four years and three hundred and sixty-four days, in the other case, in which he could have taken possession of the land, without even the cost of an action, for no action was necessary, and one day in which an action was necessary. We fail to see that inj ustice is suffered in either ease. The holder of the tax title neglected to resort to the remedies the law provided, in the one ease by an action, in the other by his own act, during the time given him by the statute for the commencement of his suit, and the recovery of his land. He cannot afterwards have his action at law. The remedy by his own act in enter*117ing upon the occupancy of the land, is secured him by the law. There is no greater hardship wrought him by the rule which defeats recovery 'of the land after he has neglected this remedy, than he suffers in the application of the same rule in bar of his action, when the land has been held adversely for the period of limitation.

'Yin. We fail to see any advantage to.be gained by either party in forcibly taking possession of the land, after the period of- limitation has expired. We think, therefore, that the. objection based upon the ground that “physical force” would be resorted to, in order to gain possession of lands, is without foundation.

IX. It will be understood, we do not hold that possession acquired by the former owner, after the expiration of the period of limitation, will enable him to set up the statute as a bar to an action by the holder of the tax title. The point is not in this case, and we do not decide it.

X. We may admit, as fully as the claim is made in argument, for the purpose of our present discussion, that the cause of- action of the holder of a tax title does not accrue against the former owner until the latter enter upon the actual occupancy of the land. This admission, were the statute of the character and force which the advocates of the view adverse to ours insist on giving it, would dispose of the case. But the statute provides that the peridd of limitation begins when the deed is executed and recorded. The accruing of a right of action has nothing to do with the running of the statute. We know of no authority which courts possess to interpolate the statute with words giving it a meaning not intended by the Legislature. Its reading is, that the period of limitation begins at the execution and recording of the tax deed. We cannot interpret its words to mean that the period of limitation shall begin when a cause of action at law accrues ; nor can we give it such an interpretation, by the interpolation of words to that effect. Binding the meaning of the statute plain, and that it is not in conflict with the con*118stitution, no objection on that ground being made to its provisions, we must give it such force as its true meaning, demands. Its probable effect in cases that may be imagined, and its policy, are not to be considered in order to defeat its provisions. It is sufficient for this court to know that the statute is the expression of the legislative will; ita lex scripta. So it must be enforced.

XI. Statutes limiting actions to recover lands upon tax titles, containing provisions similar in character to our statute upon the same subject, prevail in Wisconsin and in Pennsylvania. In the State first named, it is held that the execution and recording of a tax deed draws after it the possession of unoccupied lands. The former owner, in order to plead the statute, must be in actual occupancy of the land. Dean v. Early, 15 Wis., 100; Jones et al. v. Collins et al., 16 Wis., 594. But it is not held that such actual occupancy must have continued for the whole period of limitation.

It is also held, in the same State, that when lands are actually unoccupied during the period of limitation, the tax title becomes absolute against the former owner, and he cannot afterwards take possession of the land, and plead the statute to an action by the holder of the tax title. Lawrence v. Kinney, 32 Wis., 281. These decisions are not in conflict with our conclusions in this case.

In Pennsylvania it was held, in an action to recover lands upon a tax title, that the statute only ran from the time the purchaser entered into possession of the lands. The ground of the decision seems to be that the former owner had no remedy by action to test the tax title, the holder of that title not being in possession. Waln v. Shearman, 8 S. & R., 357. A subsequent statute authorized the former owner to bring an action to test the tax title, notwithstanding the holder of that title was not in possession of the land. It was thereupon held that an action by the owner would be barred, though the holder of the tax title was not in actual possession of the land. Robb v. Bowen, 9 Penn. St., 71. The decision is reconciled with *119Waln v. Shearman, on the ground that the subsequent statute gives the former owner an opportunity to test the validity of the tax title by action, though he be in possession of the land. A similar statute, as we have before stated, exists in this State. Code, § 3273. The ease last cited supports the views we have adopted.

It will be remembered that the statute in question applies equally to actions brought by the holders of tax titles and the former owners.

We remain well satisfied with the conclusion announced in our first opinion, and adhere to it.