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strictly accurate to require seisin in a person making cognizance; because that is founded on the right of another, by whose authority, or in whose behalf, the person pleading, acted. Varied, also, by introducing the word grantor, which seems necessary to conform the statute to the common understanding of it. The Revisers cannot refrain from suggesting, whether any reason now exists for allowing a longer time to bring a writ of right, than any other action brought for the recovery of lands ? and, whether certainty and security would not be attained, by prescribing the same time for all actions of the same nature substantially."
S 7. As reported ; materially varied 97 R. S.
Original note. “ 3 varied, by omitting the words 'or title,' in the seventh line, by which the sense of the statute is preserved and rendered more clear, while it will be conformed to the construction given by the supreme court, in 4 J. R., 390, that the act does not operate on a remainderman or reversioner, until he has a right of entry. The word claim omitted in the last clause, because there can be none without an actual and virtual entry.”
(S 8. Same as S 8 R. S., except that the first clause of the S, as reported, was as follows: “S 8. In every possessory action concerning real estate, the person establishing a legal title to the premises, shall be presumed to have made a lawful entry, within the time required by law,” &c.]
Original note. “ This section is supposed to express the result of the multifarious decisions of our courts, as to the presumption that every possession was under the legal title. 2 John. Ca., 124; 8 J. R., 220; 9 J. R., 163; 3d J. Ca., 124; 12 J. R., 365 ; 16 J. R., 293. The rules respecting adverse pessession, are rather subtle and refined; but they have been so long the subjects of judicial exposition, that many of them can now be stated with clearness and precision. In conformity to the uniform practice of the Revisers, they propose to fix those rules by legislative enactment: 1. Because they are essential to an understanding of the statute of limitations : 2. That they may be made permanent, and preserved from the fluctuations of opinions : and 3. That the community at large may have the means of knowing the most important laws respecting the enjoyment of their property."
CS 9. Same as enacted to the word “ adversely,” when the section as reported proceeded as follows: “Subject to the following exceptions,” in lieu of which the legislature substituted the last clause of the y as enacted.
“1. If the premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract.
“2. When only a part of a single lot or farm shall have been occupied, such occupation shall be deemed a constructive possession of not more than two hundred acres of the same lot or farm, which shall be contiguous to the part so occupied, and shall be estimated in a square form, as nearly as may be; but such presumption may be repelled by contrary proof.”]
Original note to first clause of $. “18 J. R., 40; do., 365; 13 do., 118; 1 Cowen, 216.” To sub. 1. “This qualification taken from 6 Cowen,
623." To sub. 2. “In 1 Cowen, 286, and 6 Cowen, 680, it is decided that the possession of a small portion of a large track, would not extend to the whole tract. This was intended as an equitable rule, to enable the court to apply or mitigate the statute, according to the merits of the case. But the difficulty of applying it in practice, is great, and has been much felt at the circuits ; for few men would agree as to what was a small portion of a tract, in reference to the whole. But besides, it is an uncertain and fluctuating rule, which may change with the members of the court, called on to apply it. It is supposed that a principle of such great importance, upon which the title to real property often depends, ought to be certain and fixed; and that this is one of those cases in which it would be better to have an imperfect rule settled, than to have none, or one that is uncertain and varying. An attempt has therefore been made in the above 2d subdivision, to give a rule, which, it is believed, will be found to be as equitable, generally, as any. The limitation of two hundred acres has been selected, as covering all ordinary cases, that being the extent of a moderate farm."
[S 10. Same as enacted, except that sub. 3 was reported as follows: “3. Where, although not enclosed, it has been used for the supply of fuel, or of fencing timber, for the purposes of a farm, of which it forms a part;" and except also that the words “in a newly settled district of country,” were prefixed to sub. 4.]
Original note. “It has been supposed that a more acceptable service could scarcely be rendered, than even an approach to some definite rule, as to what constitutes possession. To say that our fellow citizens who do not belong to the legal profession, are utterly confounded in the attempt to know what a possession is, would be stating a truism that is scarcely necessary. From the various decisions on the subject, it would not be hazardous to remark, that the members of the profession must be unable, in a large portion of the cases, to advise safely as to this important point, on which the title to real property rests, to a great extent. It has appeared to the Revisers that in a state comprising, as this does, portions of territory in various stages of agricultural improvement, no positive rule can be prescribed, which shall apply justly and equally to all those portions. And least of all, can the rules derived from England, where every foot of arable land is under a high state of cultivation, be applied to a country large parts of which are yet forests. The two first subdivisions of the above section are according to the present settled rules of our courts. The third is deemed so obviously just, as not to require remark. The fourth is adapted to a peculiar state of country, and is in conformity to the principles adopted by the supreme court in 6 Cowen, 679. Instead of an arbitrary rule, which the cunning may evade, and to which false witnesses may adapt their testimony, it presents the principle which governs in commercial and various other cases, of appealing to the common usage or custom; of which jurors will be the very best judges.”
(S 11. Same as enacted.] Original note. “ The principle of this section is now settled, vide 9 J. R., 180, from which the language of the
section is partly borrowed. The doctrine will be found in almost any volume of John. Rep."
[S 12. Same as enacted.] Original note. “From the time of the decision in 2 J. R., 230, this has been the settled law respecting a possession not founded on a claim under color of title."
[S 13. Same as enacted.] Original note. “New. The principle has been repeatedly recognized, that a tenant cannot acquire or set up a title hostile to his landlord, and that his possession can never become adverse, although it must be admitted that there are some dicta which seem to admit exceptions to the general rule. But the last decision of the supreme court in 7 Cowen, 323, adopts it unequivocally. Still there seems to be great reason for imposing some limitation on the landlord, that he should not lie by unreasonably; and that afforded by the statute itself has been adopted.”
[S 14, 15. Same as enacted.] Original note. “Section 4, 1 R. L. 185, was borrowed from the English statute, 32 Hen. VIII, ch. 33, and was intended to ameliorate the severity of the common law rule. By that rule, when a disseisor, that is, a person who enters by force or other wrong, entered upon lands, and died, leaving heirs upon whom a descent was cast, the right of entry of the lawful owner was absolutely barred, or as it is technically called, was tolled. 3 Black. Com. 176. One of the chief reasons assigned for the rule, 'that it was admirably adapted to the military spirit of the feudal tenures,' has not only ceased, but such an entire change has occurred in the tenure of real property, that a principle which was so peculiar to the old law, and interwoven with it, has become inconsistent with the modern law. “Our ancestors,' says Ch. J. Mansfield, speaking on this subject in 1 Taunton, 613, 'got into very odd notions on these subjects, and were induced by particular causes, to make estates grow out of wrongful acts. The effect of the rule itself, and of the modification of it by the statute, is to compel the claimant to bring a writ of right, instead of an action of ejectment. The advantage of such a consequence either to the tenant or the claimant, is not perceived. For these and various other reasons, which will probably occur, the Revisers suggest the propriety of abolishing the ancient feudal rule, and of course the statutory provision which qualified it. The effect would be, that the statute of limitations would operate upon property which had descended from the disseisor, in the same manner as upon all other property, and a possession acquired or preserved by force or wrong, would not, as now, be better protected than any other possession. See a strong case in 5 Cowen, 371."
(S 16. Same as enacted.]
Original note. “This is a consolidation of the provisos of the sections 2, 3 and 5 of the act. 1 R. L., 186. There is at present some difference in their language: the proviso to the 2d section does not require that the title should accrue, &c., during the disability, while the 3d and 5th sections very distinctly prescribe it. The English statute 32 Henry VIII, ch. 2, from which g 2 of the present law is copied, made provision for those who were under disabilities at the time of the passing the act; but not for subsequent disabilities. In the revision of Jones and Varick, 2 vol. 262, subsequent disabilities
were provided for as in the present law, and the same difference in the language of the exceptions between writs of right and possessory actions, exists. Whether it was accidental or designed, there are now no means of determining. The Revisers have not met with any decision on the point; but the general language of the court is, that a statute bar, having once begun to run, will continue to run, notwithstanding a subsequent disability. (10 J. R. 214; 20 J. R. 306; 3 John. Ch. Rep. 129.) There seems no reason for the distinction, but much for uniformity. In the above section, the exceptions have therefore been applied to all actions relating to real estate.
“The 3d subdivision, is varied from the present law, which excepts all persons imprisoned. When the act was first passed, the term imprisonment meant such a confinement of the person as disabled him from doing any thing in vindication of his rights; for then debtors were closely confined. At the present day, if the term includes all who are on the limits of a jail, it is obviously too large. A modification has been proposed which it is supposed will reach the case intended to be provided for. Persons sentenced to the State Prison for life, are civilly dead, and there is of course no need of specifying that cause of disability, and it would be inconsistent with the next section."
[S 17. Same as enacted.] Original note. “Part of $ 3, 1 R. L. 186. The words in italic, new; taken from 32 Henry VIII, ch. 2, 9, from which our act was originally taken. The use of these words is, to protect the public against a claim which a person under disability may have presented, and in which he has failed. There seems no propriety in allowing his heirs to revive such a suit.” " ARTICLE II.—Of the time of commencing actions for the recovery of any debt or demand, or
for damages only." [S 18. Same as enacted, except that the first four subdivisions of the section as enacted, were substituted by the legislature, for the following:
“1. All actions of debt; excepting such as are brought upon the judgment or decree of some court of record of the United States, of this state, or of some other state of the United States.
"2. All actions of covenant, account, assumpsit, or on the caso, founded upon any contract or liability express or implied."]
Original note. “Part of § 5, 1 R. L. 186. The legislature having abolished the preferences to demands arising on sealed instruments, there seems no reason for allowing a longer time for the bringing of suits on such demands, than upon others. Indeed, it is difficult at this day to perceive any solid reason for giving any greater sanctity to a seal, than to a signature. By adopting a simple and uniform rule, much uncertainty and consequent litigation will be prevented.
"In the first subdivision, judgments are excepted, because by our statutes, laws of 1821, p. 246, § 4, they are presumed paid after twenty years. Judgments in other states stand on the same footing, 19th J. R. 163. The second subdivision is so far varied as to include sealed instruments, and also the cases of trust in which an action may be maintained at law, according to the decision of the court of errors in 20 J. R. 585.
“The other subdivisions conform to the existing statutes. Should it be preferred to retain the existing law, the following may be substituted for the foregoing 1st and 2d subdivisions:
"1. All actions of debt founded upon any contract, obligation or liability, not under seal, excepting such as are brought upon the judgment or decree of some court of record of the United States, or of this or some other state.
“This subdivision would include some actions of debt, now held not to be within the statute, as debt for an escape, 1 Saunders, 38, &c.; debt on award, 1 Lev. 273, 2 Saunders, 63; debt against a sheriff for money levied on a fi. fa. 3 Mod. 312, which it is conceived are within the policy of the statute. “2. All actions upon judgments rendered in any court not being a court of record.
“In 14 J. R. 479, it was decided that judgments in justices' courts, were not within the statute. It is supposed that they should be included.
“3. All actions of debt for arrearages of rent.
“4. All actions of account, assumpsit, or on the case, founded on any contract or liabiliiy express or implied.
(S 19, 20. Same as enacted.]
Original note to § 20. “The first subdivision is from $5, 1 R. L. 186, except slander of title, which the court, in Cro. Cha. 141, seemed to think not to be within the statute. The reason of the distinction is not very obvious; the policy of the law undoubtedly is to avoid the frailty of imperfect recollection, and the danger of false testimony in relation to verbal declarations; and it is not perceived why the special damage, which must be averred and proved in an action for slander of title, should except the case from the same dangers.
“The second subdivision is new. The courts have held, that when special damage was the ground of the action, it was not within the statute, 1 Sid. 95, Ray, 61. But it is believed to be most clearly within the mischief which the statute intended to reach."
[S 21, 22. Same as enacted.] Original note to $ 21. “Ş 26, 1 R. L. 427, varied in language from the former law;" to $ 22. “New; proposed in order to relieve the sureties of sheriffs."
(S 23. Same as enacted.]
Original note. “ This section is proposed instead of the expression in $ 5,1 R. L. 186, other than actions which concern the trade of merchandize between merchant and merchant, their factors or servants.' This has given occasion to numerous decisions, some of them contradictory, which left the law for many years quite uncertain. It is now decided.
"1. That the exception in the statute extends to all persons, whether merchants or others, 20 J. R. 583, and most of the modern cases support this remark.
“2. That when all the accounts have ceased for six years, the demand is barred : and consequently, that when there is an open, current, mutual account, within six years, the whole account may be recovered. 2 J. R. 201 ; 5 J. Ch. Rep. 522; 2 Saunders 127; 6 Cowen, 695.
“3. That the limitation in the statute applies as well to accounts between merchants, as others, notwithstanding the exception. 18 Vesey, 286.