Abell v. Harris

delivered the opinion of the court»-

In the first bill of exceptions, in the record before us, the instruction asked for and granted by the court was, “that if the jury find from the evidence, that defendant or the person under whom he claims, had been in possession of the negro boy, John Lloyd, in controversy, for more than three years next before the institution of this suit, claiming title adverse to the plaintiff or her intestate, and that said adverse claim of title, was known to said plaintiff for three years before the institution of this suit, then the- plaintiff was barred by the plea of imitations.”'

*371As far as respects the adverse holding and claim of the person under whom the defendant claims title, in the view we are now taking of the instruction, the appellant has no ground <of complaint; there was ample testimony before the jury, to warrant their finding such adverse holding and claim. But the court erred, when it instructed the jury, that the statute of limitations was a bar to the plaintiff’s action, if they found three years adversary possession, and claim by the defendant, because there was no testimony before them, on which such a finding could be based. The instruction complained of, is erroneous on another ground. It directs the jury that the statute of limitations is a bar to the plaintiff’s recovery, if they find three years possession and claim of title, by the defendant or person under whom he claims, adverse to the plaintiff or her intestate, and that said adverse claim of title, was known to the plaintiff for three years before the institution of the suit. According to the instruction, the plaintiff is barred by the defendant’s three years adverse possession and claim, in the life time of the intestate, although the intestate had no knowledge of such possession and claim; the bar being made to depend, not as it should have been, upon the intestate’s knowledge, if the running of the statute commenced in his life time, but upon the knowledge of the plaintiff, who may have been a mere stranger during nine-tenths of the time, creating the bar, having no connexion with, or title to, the property in question.

The court erred in granting the instruction for another reason. The jury are instructed, that the statute of’limitations is a bar, if the defendant or person under whom he claims title, had three years adverse possession claiming title, if the adverse claim of title, was known to the plaintiff for three years before the institution of the suit. Thus barring the plaintiff of his right to recover simply upon the knowledge of the adverse claim of title, unaccompanied by any possession. The principle upon which the operation of the statute of limitations is predicated, is not that the party in whose favour it is invoked, has set up an adverse claim for the period specified in the statute, but that such adverse claim is accompanied by such inva*372sion of the rights of the opposite party, as to give him a cause pf action, which having failed to prosecute within the time limited by law, he is presumed to have extinguished or surrendered. A mere claim of title, unaccompanied by adverse possession, gives no right of action to the person against whom jt is assprtpd, and consequently his rights are unaffected by the statute.

We think tlje court were right in refusing the plaintiff’s first prayer in the second bill of exceptions. It required the court to determine on the existence of matters of fact, of which the jury only, are the proper judges. The court’s refusal also of the second prayer in that bill of exceptions, rpeets our approbation, as there is no such principle or inference of law, that the pendency of the proceedings in equity referred to, necessarily postponed till after the decree, the commencement of the adverse possession of Henry Abell. The refusal of these prayers is the only matter appealed from in the second bill of exceptions. It was also argued under this exception, that the statute of limitations could be no obstacle to the plaintiff’s recovery; because until after the depree of 1835, she was ignorant of her rights to negro John Lloyd. In answer to this novel argument, it might be replied, that we have never met with a replication in a trial at law, where the plaintiS’s ignorance of his rights, has been held to defeat the bar of the statute of limitations. No such case has been referred to. If such a principle of law existed, authorities upon the subject could readily have been found.

But there are other answers to this argument. There are no facts in testimony in the cause from which either court or jury could impute such ignorance to the plaintiff; and if there were, the point not appearing to have been decided in the court below, by the apt of 1825, it is excluded from our consideration.

We concur with the county court in their refusal to grant the plaintiff’s prayer in the third bill of exceptions, The prayer calls on the court to declare th,e statutory bar removed, if the ’ jury believe a fact wholly immaterial to its operation. The bar *373of the statute does not depend upon the plaintiff’s admission of knowledge of the defendant’s adverse claim of title; but upon the fact to be determined by the jury, whether she possessed such knowledge, and if she possessed such knowledge, whether she ever made any admission of it or not, is wholly immaterial to the operation of the statute.

We concur with the county court in the refusal to grant the plaintiff’s prayers in the second and third exceptions, but dissenting from its instruction to the jury in the first bill of exceptions, we reverse their judgment.

JUDGMENT REyERSED, AND PROCEDENDO AWARDED.