Fullerton v. Spring, 3 Wis. 667

Fullerton v. Spring

3 Wis. 667 | Wis. | 1854

*671 By the Court,

Smith, J.

However strong the equity presented in behalf of the complainant, by his bill filed in this case, we can perceive no way of avoiding the statute of limitations. A.dmitting that the lien of the complainant for the purchase money remained, a cause of action accrued to enforce it on failure to pay the bills of exchange. The last bill became due December 28th, 1837. The statute of limitations enacted by the territorial legislature went into operation the 4th day of July, 1839. The provision of that statute particularly applicable to cases of this kind, is section 40, page 263, of the Territorial Revised Statutes, and is in the following words:

“¡Bills for relief, in case of the existence of a trust, not cognizable by the courts of common law, and m dll other cases not herein provided for, shall be filed within ten years after the cause thereof shall accrue, and not after.”

By the Revised Statutes of the State, which went into operation the 2d day of January, 1850, the foregoing section was re-enacted in the same words, and the territorial statute repealed. See R. S., chap. 127, § 27.

In our judgment, it is clear that the effect of this repeal and re-enactment was to continue the uninterrupted operation of the statute. Such is believed to' be the,proper rule .of construction in cases where the repealing -act re-enacts a provision of the old statute in the same words. There is no change in the law, and* the re-enactment of the new, is simultaneous with the repeal of the old provision, and both are the same. It was said on the argument, that there was an instant of time between the taking effect of *672new statute, and the expiration of the old. But it is difficult to perceive by what process such instant of time could be estimated. The new statute took egpecg ag same instant with the repealing statute? When the legislature re-enacted the same provision. • and provided for ■ its taking effect at the same time ‘ as the repeal of the old statute, it is clear that they intended to continue such provision in force without interruption.

The bill in this case was filed the 28th day of July, 1851. More than ten years had elapsed from the time when the cause of complaint accrued, before the filing of the bill, and more than ten years from the enactment of the statutes of the Territory, which took effect July 4, 1839.

Nor is the case relieved by the allegation of title through tax deeds, and possession. The bill is not filed with a view to remove a cloud upon the title thus alleged to have been acquired, nor do we see how it can be sustained with that view. If the complainant has thus acquired a good and valid title, he has an adequate remedy at law, or he may frame his bill for the purpose of quieting his title.

It may seem hard that a loss shall be sustained, or apparent injustice done, on áccount merely of the lapse of time, without any change in the equitable relations of the parties. But the statute is imperative, and we have no discretion jbjjh .to carry it into ■effect. We are unable to perceive any mode of relieving the plaintiff of its operation.

This view of the case renders it unnecessary to consider the other points raised by the demurrer-The order of the Circuit Court must be reversed.

Order reversed, with costs.

Note. — Since tlie foregoing opinion was written, my attention has been called to tlie case of Wright vs. Oakley et al., 5 Met. Rep. 404, where the same subject is discussed by Chief Justice Shaw, who delivered the opinion of the court, and which is authority for the positions here assumed. Smith, J.