Select Cases and Other Authorities on the Law of Property

especially if the residence was that of the place where the contract was made; and the courts of some jurisdictions so held. Brown v. Parker, 28 Wis. 21, 30; Goodman v. Munks, 8 Port. 84, which is overruled in Jones v. Jones, 18 Ala. 248. See LeRoy v. Crowninshield, 2 Mason, 151, 168. This view was, however, generally abandoned, and was never the law of this Commonwealth, of the English courts, of the Supreme Court of the United States, or of the courts of most of the States. A distinction was made in some of the Southern States between debts and chattels; and in suits for the recovery of slaves, it was held that adverse possession for the statutory period of limitations of personal actions created a title. In some of the decisions it is said that the possession must be bona fide, and acquired without force or fraud, and must be peaceable and adverse. It was held, however, that where there had been successive purchases of a slave, the possession of the successive purchasers could not be tacked, so as to create a title by adverse possession, because each purchase, if the purchaser took possession, was a new conversion; but such a title acquired by one person could be transferred to another. In some of these States, at the time of these decisions, it was also held that the statute of limitations of personal actions extinguished debts. Cockfield v. Hudson, 1 Brev. 311; Howell v. Hair, 15 Ala. 194; Clark v. Slaughter, 34 Miss. 65; Winburn v. Cochran, 9 Tex. 123; Wells v. Ragland, 1 Swan, 501; Bryan v. Weems, 29 Ala. 423; Seay v. Bacon, 4 Snced, 99; Bernard v. Chiles, 7 Dana, 18; Moffatt v. Buchanan, 11 Humph. 369; Newby v. Blakey, 3 Hen. & M. 57; Beadle v. Hunter, 3 Strob. 331. See Goodman v. Munks, ubi supra.

In Preston v. Briggs, 16 Vt. 124, and Baker v. Chase, 55 N. H. 61, it was suggested that adverse possession of a chattel for six years transferred the title; but the cases did not require a determination of the question. In Campbell v. Holt, 115 U. S. 620, 623, there is an express declaration that "the weight of authority is in favor of the proposition that where one has had the peaceable, undisturbed, and open possession of real or personal property, with an assertion of his ownership, for the period which, under the law, would bar an action for its recovery by the real owner, the former has acquired a good title, a title superior to the latter, whose neglect to avail himself of his legal rights has lost him his title." The cases there cited are two of the slave cases which have been mentioned, and decisions of the Supreme Court of the United States relating to real property.

The law of the Supreme Court of the United States in regard to contracts was carefully stated in Townsend v. Jemison, 9 How. 407; and it was there held that, when the statute extinguished the right or title, and created a new one, this new right or title would be recognized by courts in other jurisdictions; but if the statute only affected the remedy, the courts would afford the remedies provided by their own laws. Our decisions upon the effect of our statute of limitations upon debts or contracts uniformly hold that it affects only the remedy by

action. Bulger v. Roche, ubi supra; Thayer v. Mann, 19 Pick. 535; Hancock v. Franklin Ins. Co., 114 Mass. 155.

There is nothing in the statute which suggests any distinction between actions to recover chattels and actions to recover debts, and it does not purport to be a statute relating to the acquisition of title to property, but a statute prescribing the time within which certain actions shall be brought. There is not a trace to be found in our reports of the doctrine that possession of chattels for the statutory period of limitations for personal actions creates a title, and I can find no such doctrine in the English reports, or in the reports of a majority of the courts of the States of this country. The law concerning the acquisition of easements in real property by prescription, in its modern form, was established by the courts by adopting in part the Roman law, and by limiting the period of enjoyment necessary to create the right to the time required by statute for bringing actions for the recovery of land. Edson v. Munsell, 10 Allen, 557.

A right of way may be acquired by repeated trespasses, if they are openly made under a claim of right, and are uninterrupted; but twenty years' user is required, although the limitation for actions of tort in the nature of trespass quare clausum is six years. It was inevitable, perhaps, that if a title to land could be acquired by adverse possession, a privilege or easement in land should be acquired by adverse use. By the Pub. Sts. c. 197, § 14, if a person liable to an action “ fraudulently conceals the cause of such action from the knowledge of the person entitled to bring the same, the action may be commenced at any time within six years after the person so entitled discovers that he has such cause of action." This section has been construed strictly. Nudd v. Hamblin, 8 Allen, 130. Under this section, if one man stole another man's watch and carried it on his person as watches are usually carried, it might be held that the thief fraudulently concealed the cause of action from the owner; but if the thief sold the watch to one who purchased it in good faith, and he carried it in his pocket, this could not be held to be a fraudulent concealment; and if the statute of limitations transfers the title, the owner at the end of six years would lose the title to his watch, although he may not have known or been able to discover who had it. The possession of personal chattels, even although honestly held, is not always open and notorious, and if title to such chattels is to be acquired by possession, it ought to be by an adverse possession bona fide held under a claim of right which was known to the owner, or so open and notorious that the owner ought to have known it. The second request does not assume, and it has not been found as a fact, that such was the nature of Warner's possession.

Lamb v. Clark, 5 Pick. 193, was assumpsit by an executor to recover money paid to the defendant by the makers of certain promissory notes which had been delivered more than six years before the action was brought to the defendant as his property, by the plaintiff's testator as the consideration of a conveyance of land by the defendant to the

testator's wife. The plaintiff contended that there was a fraudulent combination between the defendant and the wife of the testator, whereby the testator had been defrauded of his property. It was conceded by the court, that an action of trover might have been brought at any time within six years after the defendant received the notes, and that such an action was barred by the statute of limitations. The plaintiff, however, was permitted to recover all sums of money received by the defendant from the makers of the notes within six years before the commencement of the action. If the expiration of the six years had transferred the title of the notes to the defendant, it is difficult to see how the action could have been maintained.

Wilkinson v. Verity, L. R. 6 C. P. 206, was detinue by the church wardens of All Saints against the vicar, who in 1859, having the custody of the communion plate, sold it for old silver. The church wardens discovered this in 1870, and then made a demand. The defence was the statute of limitations, and that the conversion occurred when the defendant sold the plate. The court say: "If this had been an action for damages for the conversion of the plate, in which the demand and refusal would have been only evidence of a conversion, it would have been impossible to contend that the date of the conversion could be excluded, or to deny that the defence upon the statute was sustained. Nor could the ignorance of the plaintiffs or their predecessors have prevented its operation." But the court held that the plaintiffs could elect to sue the defendant in detinue upon his contract as bailee to deliver the plate on demand, and that "it is no answer for the bailee to say that he has incapacitated himself from complying with the lawful demand of the bailor."

These cases show that the statute of limitations of personal actions is construed with reference to the particular action brought, and indicate that there is no change of title in property, although the time for bringing an action of trover has expired. I think that the subject of the acquisition of title to personal chattels by adverse possession can best be dealt with by the Legislature, if it is thought necessary to establish such a rule of law; and that it was not the intention of our statute of limitations of personal actions to extinguish rights or titles.

There is much force in the suggestion, that if the defendant could not have recovered the counters by action at the time she took possession, she ought not to be permitted to take them from the possession of the plaintiffs by force or fraud; but it is not found in the case that she took them by force or fraud, and the request does not assume this; and I think that the defendant, at the time she took possession, could have recovered these counters of the plaintiffs by action, as the statute of limitations did not begin to run in favor of the plaintiffs until they took possession, which was at least as late as 1879; and it is not found that the plaintiffs' vendors had any title which they could convey to the plaintiffs. I think the second and third requests ought not to have been given.

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