| Miss. | Oct 15, 1854
delivered the opinion of the court.
This was an action in the nature of a writ of right, in the Copiah circuit court, under the statute of 1850, in relation to pleadings in actions at law.
The complaint alleges, that the defendant (now the plaintiff in error) was unlawfully in possession of the tract of land in controversy, of which the demandant was seized in fee, and to which he claims that he had the right and title in fee-simple within fifty years past, and until the defendant entered and unlawfully took possession, demanding judgment and the writ of seizin and possession.
The defendant demurred to this complaint, but the demurrer was overruled. He then answered, denying generally the right and seizin of the demandant' as alleged in the complaint, and the unlawful entry of the defendant. And on the trial, the verdict and judgment were for the demandant, and the case is brought here by the defendant on writ of error.
The merits of this case depend upon the construction to be
It is, in the first place, insisted in behalf of the defendant in error, that this instruction was properly refused because the defendant did not rely upon the statute of limitations in his answer, and was, therefore, not entitled to the benefit of that de-fence ; that under the act of 1850, in relation to pleadings in actions at law, the defendant is not entitled to make any de-fence except that specially sét up in his answer.
Assuming this action to be in the nature of a writ of right, it must be subject to the fundamental rules governing such an action at common law, for the act of 1850 did not intend to dispense with the proof of what was absolutely necessary in showing the demandant’s title and right to recover. Under the rulesj appertaining to actions of this kind at common law, it was in-j cumbent on the demandant to prove his seizin within the! time limited by law, and failing to do so, he could not recover,] because it was the foundation of his title. Jackson on Real! Actions, 290. The defendant was, therefore, not required to! plead the statute of limitations, and where the seizin was denied, the demandant was bound to prove it within the time prescribed.® Stearns on Real Actions, 241; Jackson on Real Actions, 157.
The defence was, therefore, allowable in this case under the general denial of seizin in the answer; and then the question arises, By what period of time was the action barred under the statute of 1844 ?
The first section of that act provides that from and after its
It is contended, in behalf of the defendant in error, that this action is not embraced in this section, because it is a real action which was expressly mentioned in the first section of the act of 1822, Hutch. Dig. 824, but is omitted by name in the first section of the act of 1844. That it cannot be included within the general words .“ other action ” in the latter statute, because it is an action of higher dignity than those enumerated in that statute, and cannot, therefore, be included under the general words. But it is contended to be embraced in the third section of the statute of 1844, establishing the period of ten years actual adverse possession, as vesting a full and complete right and title to lands so held, and also as constituting a bar to all claims made or actions commenced for the same.
We do not think that this view is supported by the spirit and intention of the statute, as indicated by the terms employed and the general policy of the statute.
In the first place, though it is generally true that a statute which treats of things or persons of an inferior degree cannot, by any general words, be extended to those of a superior degree, yet when all those of an inferior degree are embraced by the express words used, and there are still general words, they must be applied to things of a higher degree than those enumerated ; for otherwise there would be nothing for the general words to operate upon, and effect could not be given to all the words. Dwarris on Stat. 758. Here there are no inferior actions to those embraced in the words “ possessory, ancestral, or mixed actions,” except, perhaps, the proceeding of unlawful detainer, or forcible entry and detainer, the limitation to which is regulated by another statute; and unless the words “other action” embrace those of a higher degree than those enumerated, they become nugatory; and a construction producing such a result 'cannot be given, upon well settled and familiar principles.
We think that the terms of the statute clearly show that all actions for the recovery either of the land itself or of the possession and damages, were intended to be embraced. The words are, “ that every possessory, ancestral, mixed, or other action, for any lands, tenements, or hereditaments, or lease for a term, «See., shall be commenced within seven years next after the right or title thereto, or cause of such action accrued,” &c. The right is thus secured to a party sued, to defend any action brought for the. recovery of land, or the possession of it, upon the ground that the action was not commenced within seven years next after the right or title to the land or the cause of action accrued.
The object of the third section of the statute was something further. By its terms, an actual adverse possession of ten years “ vests a full and complete title to the land in the possessor ; ” and a party having had such possession might sue for the recovery of it at any time within the period limited in the first section, without further evidence of his title than that he had had ten years actual adverse possession. This provision was intended to secure a right of property by the possession of ten years; the first section was only intended to fix a period of limitation for bringing an action after the right was disturbed. The former applies to- parties suing; the latter, only to defend-' ants.
This view is shown to be correct by reference to the statute of 1822; for the first section of that act confessedly embraces actions like this by the use of the term “ real ” action ; yet the third section of that act contains the same provisions as the third section of the act of 1844. It could not be pretended that the third section of the act of 1822 would have fixed the period to bar the writ of right; for such was not its object, that bar being fixed by the first section. So it was not the object of the third section of the act of 1844 to fix a period to bar actions. That section was intended to have the same effect as the third
We are of opinion that the court erred in refusing the instruction, and the judgment is therefore reversed, and the cause remanded for a new trial.
A petition for a reargument was filed by the counsel for appellee, but the court refused to grant a reargument.