same for use as a store for the sale of general merchandise; that the counters in controversy were put into the store by him, and were arranged for convenient use therein; that the same were nailed to the floor, and were used in said building; that on January 2, 1871, Warner mortgaged the premises to Alexander DeWitt; that DeWitt died in 1879, and Charles A. Angell and William Newton were appointed executors of his will; that in April, 1879, said executors foreclosed said mortgage by sale, under the power contained therein, and became the purchasers of the premises; that, soon after such sale, Warner removed the counters from the building, and the executors regained possession of them, and put them back upon the premises, but did not nail or fasten them to the premises; that afterwards the executors sold the premises to the plaintiffs, but did not make mention of the counters in their deed, nor speak of them in the sale; and that the defendant took the counters from the premises occupied by the plaintiffs in 1881.

The defendant offered evidence tending to show, and the judge found, that she purchased these counters, with two others, in 1861; that they were built in Worcester and sent to her complete at Oxford, and placed in her store; that they were heavy counters with black-walnut tops and heavy bases, with panelled front, supported by standards. standing upon the floor, and were not fastened to the floor, but were kept in position by their own weight, and were used there until some time in 1866, when, the store being then occupied by a tenant, they were set on one side as not being adapted to the business for which such store was then used, and finally, with the knowledge and consent of DeWitt, were moved out of the building on to the street, and placed one upon the other; that Warner took the counters from their place in the street, and put them in his store, as aforesaid; that there were two mortgages on the defendant's store premises given some time previously to November 26, 1866, which were assigned to DeWitt on that day; that from that date, by agreement with the defendant, DeWitt, who was the defendant's brother, had charge of said estate and of said counters for the defendant; that she never authorized him or any other person to dispose of the counters, and never herself parted with her property in them; that soon after the connters were removed from her store, she missed them and made inquiries for them, but failed to find them; and that when she learned that they were upon the plaintiff's premises, she took them away.

There was no other evidence than as above stated as to the means of the defendant of obtaining information as to where the counters were after they were taken from her store, or as to any concealment of the taking of the counters by Warner. It was in evidence, however, that the defendant, after 1861, resided some of the time in Oxford and some of the time in Sutton.

There was no evidence, except as before stated, tending to show what interest, if any, Warner claimed to have in the counters at the time they came into his possession, or at any time thereafter; and

there was no other material evidence in the case applying to the rulings made or asked for at the trial.

66

The plaintiffs asked the judge to rule as follows: 1. Upon the evidence, the counters, though attached to the store by one who had no title to them, became fixtures and a part of the realty, and passed to the mortgagee, and to the purchasers at the foreclosure sale, and came rightfully into the possession of the plaintiffs when they purchased the premises, as belonging thereto, though not then nailed to the building. 2. The defendant had lost the right to take the counters, if Warner had no right or title to them when he so took and attached them to the store building, such taking being a tort, and, as a cause of action, barred by the statute of limitations long before the defendant removed them in 1881, and therefore having no right to recover them, and nothing appearing sufficient to take the case out of the statute. 3. Upon the evidence and facts, as before stated, the plaintiffs, as matter of law, were entitled to maintain their action, and the facts in the case would not warrant a finding for the defendant."

The judge declined to rule as requested; and found for the defendant. The plaintiffs alleged exceptions.

A. J. Bartholomew, for the plaintiffs.

J. Hopkins, for the defendant.

There

HOLMES, J. This is an action of replevin for two counters. was evidence that they belonged to the defendant in 1867, when one Warner built a shop, put the counters in, nailed them to the floor, and afterwards, on January 2, 1871, mortgaged the premises to one DeWitt. In April, 1879, DeWitt's executors foreclosed, and sold the premises to the plaintiffs. The defendant took the counters from the plaintiffs' possession in 1881. The court found for the defendant. Considering the bill of exceptions as a whole, we do not understand this general finding to have gone on the ground either of a special finding that the counters remained chattels for all purposes, and were not covered by the mortgage, Carpenter v. Walker, 140 Mass. 416, or that there was a fraudulent concealment of the cause of action, within the Gen. Sts. c. 155, § 12 (Pub. Sts. c. 197, § 14). But we understand the court to have ruled or assumed that, although the statute should have run in favor of Warner or DeWitt before the transfer to the plaintiffs, that circumstance would not prevent the defendant from taking possession if she could, or entitle the plaintiffs to sue her for doing so, if she was the original owner.

A majority of the court are of opinion that this is not the law, and that there must be a new trial. We do not forget all that has been said and decided as to the statute of limitations going only to the Rremedy, especially in cases of contract. We do not even find it necessary to express an opinion as to what would be the effect of a statute like ours, if a chattel, after having been held adversely for six years, were taken into another jurisdiction by the originally wrongful possessor, although all the decisions and dicta, so far as we know, agree

that the title would be deemed to have passed. Cockfield v. Hudson, | 1 Brev. 311; Howell v. Hair, 15 Ala. 194; Jones v. Jones, 18 Ala. 248, 253; Clark v. Slaughter, 34 Miss. 65; Winburn v. Cochran, 9 Tex. 123; Preston v. Briggs. 16 Vt. 124, 130; Baker v. Chase, 55 N. H. 61, 63; Campbell v. Holt, 115 U. S. 620, 623. What we do decide is, that where the statute would be a bar to a direct proceeding by the original owner, it cannot be defeated by indirection within the jurisdiction where it is law. If he cannot replevy, he cannot take with

his own hand. A title which will not sustain a declaration will not sustain a plea.

It is true that the statute, in terms, only limits the bringing of an action. But whatever importance may be attached to that ancient form of words, the principle we lay down seems to us a necessary consequence of the enactment. And a similar doctrine has been applied to the statute of frauds. Carrington v. Roots, 2 M. & W. 248. See King v. Welcome, 5 Gray, 41.

As we understand the statutory period to have run before the plaintiffs acquired the counters, we do not deem it necessary to consider what would be the law if the plaintiffs had purchased or taken the counters, within six years of the original conversion, from the person who first converted them, and the defendant had taken them after the action against the first taker had been barred, but within six years of the plaintiffs' acquiring them. We regard a purchaser from one against whom the remedy is already barred as entitled to stand in as good a position as his vendor. Whether a second wrongful taker would stand differently, because not privy in title, we need not discuss. See Leonard v. Leonard, 7 Allen, 277; Sawyer v. Kendall, 10 Cush. 241; Norcross v. James, 140 Mass. 188, 189; Co. Lit. 114 b, 121 b. Exceptions sustained.

As

FIELD, J. I am unable to assent to the opinion of the court. the case was tried without a jury, and the court found generally for the defendant, the only questions of law are those raised by the plaintiffs' requests for rulings, which were refused. The plaintiffs must prevail, if at all, upon their own title or right of possession. There was evidence that the defendant purchased the counters in 1861, and placed them in her store, where they were used until some time in 1866, when with the knowledge and consent of DeWitt, the defendant's brother, they were moved out of the building to the street; that DeWitt, from November 26, 1866, held a mortgage upon the defendant's "store premises," and "from that date, by agreement with the defendant, had charge of said estate and of said counters;" that in 1867, Daniel Warner took the counters without the defendant's knowledge or authority, and put them into his store, and nailed them to the floor, and mortgaged his premises to DeWitt on January 2, 1871; that DeWitt died in 1879, and this mortgage was foreclosed by a sale made by the executors of DeWitt's estate to themselves in April, 1879, and they

afterwards "sold the premises to the plaintiffs," not mentioning the counters in their deed; that the defendant, "soon after the counters were removed from her store, missed them, and made inquiries for them, but failed to find them; and that when she learned that they were upon the plaintiffs' premises, she took them away," in 1881, and retained possession until the plaintiffs replevied them. "There was no evidence, except as before stated [in the exceptions], tending to show what interest, if any, Warner claimed to have in the counters at the time they came into his possession, or at any time thereafter." From the time Warner took the counters until he mortgaged his premises to DeWitt, six years had not expired; but if it be assumed that Warner remained in possession until the mortgage given by him was foreclosed by a sale, he held possession more than six years. The possession of the plaintiffs could not have been for a longer time than about two years. If DeWitt was in possession from the date of the mortgage to him until his death, this was more than six years; but there was evidence that he was the agent of the defendant to take charge of the counters. The terms of the mortgage and conveyance under which the plaintiffs claim are not set out, but it has been assumed that they conveyed whatever title, if any, Warner had in the counters. It is manifest that, as between landlord and tenant, these counters would have been either furniture or trade fixtures, and that if they were taken by Warner and affixed to his store tortiously, without the consent of the defendant, she could have retaken them. Kimball v. Grand Lodge of Masons, 131 Mass. 59; Hubbell v. East Cambridge Savings Bank, 132 Mass. 447; Guthrie v. Jones, 108 Mass. 191.

The rule that the title of personal property is lost by a wrongful conversion of it into some other species of property, or by making it a part of real estate, has its foundation in the impossibility or impracticability of tracing the property, or of severing it from the real estate; and when personal chattels are, without the consent of the owner, and without right, taken by another and affixed to real property, the title of the owner is not lost unless the identity of the chattels has been destroyed, or they have been so affixed to the real property that it is impracticable to sever them. See Wetherbee v. Green, 22 Mich. 311; Jewett v. Dringer, 3 Stew. (N. J.) 291. I think that the first request, therefore, ought not to have been given.

As the plaintiffs first took possession of the counters as their own some time after the foreclosure of the mortgage in 1879, the statute of limitations would have been no defence to them if the defendant had brought trover against them in 1881, when she took possession of the counters; their only defence would have been title in themselves derived from their vendors, and this title rests ultimately upon the possession of Warner. The second request, as applicable to the case, is in effect that, if Warner took the counters tortiously, and kept them attached to his building more than six years, the defendant lost her right of property in the counters. It is not stated in the request, that

Warner's possession to effect a change of title must have been either known to the defendant or open and notorious, and must have been under a claim of right; and that his possession was of this character is not necessarily to be inferred from the evidence. The effect of the statute of limitations of real actions upon the acquisition of title to real property is carefully discussed in Langdell on Eq. Pl. §§ 119 et seq. Our statute of limitations of real actions provides that "no person shall commence an action for the recovery of lands, nor make an entry thereon, unless within twenty years after the right to bring such action or to make such entry first accrued, or within twenty years after he, or those from, by, or under whom he claims, have been seised or possessed of the premises except as is hereinafter provided." Pub. Sts. c. 196, § 1; Gen. Sts. c. 154, § 1; Rev. Sts. c. 119, § 1; Sts. 1786, c. 13; 1807, c. 75; Commissioners' Notes to the Rev. Sts. c. 119. As writs of right and of formedon, and all writs of entry except those provided by the Pub. Sts. c. 134, were abolished by the Rev. Sts. c. 101, § 51, it follows that, with certain exceptions not necessary to be noticed, after a disseisin continued for twenty years, or in other words after twenty years from the time when the right to bring a writ of entry or to enter upon the land first accrued, the former owner of a freehold can neither maintain any action to recover possession, nor enter upon the land, nor, without an entry, convey it; and as all remedy, either by action or by taking possession, is gone, his title is held to have been lost. The effect of the statute has been to extinguish the right, as well as to bar the remedy; and this is the construction given to the English St. of 3 & 4 Wm. IV. c. 27. Our statute of limitations of personal actions was taken from the St. of 21 Jac. I. c. 16, and this statute has been held not to extinguish the right, but only to bar the remedy. Owen v. De Beauvoir, 16 M. & W. 547; 5 Exch. 166; Dawkins v. Penrhyn, 6 Ch. D. 318; 4 App. Cas. 51; Dundee Harbour v. Dougall, 1 Macq. 317, 321; In Re Alison, 11 Ch. D. 284.

Section 1 of the Pub. Sts. c. 197, declares : The following actions shall be commenced within six years next after the cause of action accrues, and not afterwards . . . actions of replevin, and all other actions for taking, detaining, or injuring goods or chattels." There is no statute, and no law, prohibiting the owner of personal chattels from peaceably taking possession of them whenever he may find them, and the technical law of seisin and disseisin was never applied to personal chattels. It is established in this Commonwealth that a debt barred by the statute of limitations of the place of the contract is not extinguished. The statute only bars the remedy by action within the jurisdiction where the defendant has resided during the statutory period. Bulger v. Roche, 11 Pick. 36. It was formerly contended that if the parties to a contract had resided within the same jurisdiction so long a time that, under the statute of limitations there, the remedy by action was barred, this ought to be held everywhere to have extinguished the right of action, and thus to have extinguished the debt,