Hill v. Bellows

15 Vt. 727 | Vt. | 1843

The opinion of the court was delivered by

Williams, Ch. J.

The only questions in this case arise on the decision qf the auditor in relation to the statute of limitations.

The 14th section of the statute for the limitation of actions provides, that “ if, at the time when the cause of action of a personal nature shall accrue against any person, he shall be out of the state, the action may be commenced within the time limited therefor, after such person shall. come into the state.” There is another clause in this section, which provides, that if, “ after any cause of action shall have accrued, and before the statute has run, the person against whom it has accrued shall be absent from, and reside out of, the state, and shall not have known property within this state, which could, by the common and ordinary process of law, be attached, the time of his absence shall not be taken as any part of the time limited for the commencement of the action.” The statute in existence prior to the passing of the Revised' Statutes, was somewhat similar in its provisions.

The auditor has found, that the defendant resided out of the state at the time the cause of action accrued ; and though it was proved that the defendant had been within this state repeatedly within six years, with personal property, yet, it was not proved, nor was there any offer to prove, that this was, at any time, known to the plaintiff. The account, therefore, was not barred by the statute of limitations, according to the authority of the case of Mazozon & Sperry v. Foot, 1 Aik. 282.

The defendant, however, insisted that the statute should run, as he had known property within the state which could, by the ordinary process of law, be attached. It is questionable, whether this clause of the statute has any application whatever to the case under consideration, inasmuch as it is found that the defendant resided and was out of the state at the time the cause of action accrued. If it has any application, it was incumbent on the defendant, if he intended to avail himself of its provisions, to prove that he had known and visible property within the state from which the plaintiff could have satisfied his demand, by attachment and levy of an execution. It obviously falls very far short of proving this fact, to prove that he had deeds of land on record, without any further proof. The auditor correctly required him to prove title in his grantors, or, in respect to the vendue deeds, authority in the collector to sell and convey, as, without such proof, the evidence did not prove any property in the lands, described in the deeds, in the defendant.

The certificate of the town clerk, offered in evidence, was of no importance. If the defendant had known property in himself in any lands, it was not necessary or proper for him to show negatively that, he had not conveyed the same away. Moreover if it had become necessary to prove that there was no conveyance from him on record, the legitimate proof of that fact would have been the oath of the town clerk or some one who had examined the records. The certificate of the town clerk is evidence of what is on record, but he is not a certifying officer as to what does not appear on record.

This view of the case renders it unnecessary for us to examine the question as to the admissions or acknowledgments of the defendant. From the view already taken, the statute had not run on the account of the plaintiff. The judgment of the county court is, therefore, affirmed.