6 Indian Terr. 254 | Ct. App. Ind. Terr. | 1906
(after stating the facts). The only question presented here is, did the court err in sustaining the demurrer? The demurrer was sustained, on the ground that the complaint affirmatively shows that the plaintiff had been out of possession of the property for more than three years. Actions for the recovery of personal property must be brought within three years. Mansf. Dig. § 4478 (Ind. Ter. Ann. St. 1899, § 2945); Ford vs Ford, 22 Ark. 134. The defense of limitations cannot be raised by demurrer, unless it distinctly appears on the face of the complaint that the action is necessarily barred. Bank vs Winslow (C. C.) 30 Fed. 488; Trebby vs Simmons (Minn.) 38 N. W. 693; Palmtag vs Roadhouse (Cal.) 34 Pac. 111; Grounds vs Sloan (Tex. Sup.) 11 S. W. 898. In the case of St. L., I. M. & S. Ry. vs Brown, 49 Ark. 253, 4 S. W. 781, Mr. Chief Justice Cokerill, in delivering the opinion of the court, says: “The
The complaint not only does not allege the nonexistence of any ground for avoiding the bar, but avers that the property was stolen and removed from the jurisdiction of the court, which fact, if established, would avoid the bar during such time as the property was unlawfully concealed. Wood, Limitations, § 249. The reported cases involving the question here raised are few; and none, so far as we have been able to find, are .exactly in point. In all of them where the statute has been held to bar a recovery, the defendant (or the defendant and his grantors) was shown to have been in the peaceable, open, and notorious possession of the property for the time named by the statute. In none of them was it held that the thief's possession, especially
The Supreme Court of Utah, in Dee vs Hyland, 3 Pac. 388, held that the plaintiff's action was barred, because the defendant, although having obtained possession of stolen property, had been in such possession openly and notoriously for more than “three years. In Hicks vs Fluit, 21 Ark. 463, the only' claim was lack of knowledge of the whereabouts of the property, and no concealment or improper conduct was charged. In further support of the doctrine here announced, we quote from the language of Mr. Justice Miller, in Bailey vs Glover, 88 U. S. 342, 22 L. Ed. 636, as follows: “They (statutes of limitation) were enacted to prevent frauds; to prevent parties from asserting rights after the lapse of time had destroyed or impaired the evidence which would show that such rights never existed or had been satisfied, transferred or extinguished if they ever did exist. To hold that by concealing a fraud, or by committing a fraud in a manner that it concealed itself until such time as the party committing the fraud could plead the statute of limitations to protect it, is to make the law which was designed to prevent fraud the means by which it is made successful and secure.'' AVe therefore hold that the statute of limitations as to personal property in the hands of a thief who has removed it from the vicinity of the owner or secreted it from him does not begin to run until he returns the property to that vicinityj'or openly and notoriously holds it, so that the owner may have a reasonable opportunity of knowing its whereabouts and of asserting his title. . And when he does this, the statute begins to run, although the proof may show it to have been stolen property, not on the theory that the thief is to be protected, but because of the laches of the owner in not asserting his title for so long a period as the statute gives him. A grantor can convey no better title than hé has himself; and
The demurrer admits that the property was stolen; that but for the statute the title and right of possession is in the plaintiff; that the defendant has not been in possession of it himself long enough to satisfy the provision of the statute. Whether he bought from the thief or some other person, and if from the thief whether or not he had done the things necessary to start the statute, does not appear; and, therefore, the complaint does not allege a case within the statute; and it is the law that the statute of limitations is defensive, and when from the complaint it does not appear that the suit is barred, the defendant must plead it. 1 Wood, Limitations, § 7, and cases cited. It is true that by the common-law pleading when the statute has been pleaded by the defendant, the plaintiff, if he relies upon matters in avoidance of its operation, must reply thereto, and set up new matters in his replication; and the burden of proof would be on him to establish them. 1 Wood on
Under our pleadings, when the statute is set up by the answer, it being neither a set-off nor a counterclaim, no reply is allowed. But as said by us in the case of Sass & Crawford vs Thomas (decided at the present term) 89 S. W. 656: “Every new matter set up in the answer except it be counterclaim or set-off, which the plaintiff could have replied to by his replication under the old system he may now reply to by his proof.” And this does not change the burden of proof. The statute enters the plaintiff’s reply to new matter set up in the answer, but where this legal replication goes further than a mere denial of the new matter of the answer, and sets up, inferentially, new matter itself, the plaintiff must prove it; that is, the burden is upon the defendant to prove all new matter set up in the answer and it is upon the plaintiff to prove all new matter inferentially set up in the replication which the law pleads for him, and as all matter in avoidance of the statute is new matter to be asserted by the plaintiff, the burden is on him to prove it. But before the law steps in and files this replication for him, there must be something to reply to; and unless an answer is filed, the statute of limitations is waived, unless the complaint is so worded that, although it may show that the property has been out of the plaintiff’s possession for the prescribed time, none of the exceptions of the statute which avoids its operation exists. This complaint does not show it, but on the contrary it leaves a strong inference that one of the provisions, at least, of the
For the error above specified, the judgment of the court below is reversed, and the cause remanded, with directions to overrule the demurrer, and proceed in' accordance with 'this opinion.