28 Ind. 347 | Ind. | 1867
— This was an action to recover the possession of real estate. Verdict for the defendant, motion for a new trial overruled, and judgment upon the verdict. The motion for a new trial was based upon several grounds, and such of them as we propose to notice will be stated as we discuss them.
The plaintiffs claimed title under a patent from the United States, and made a good prima facie case by their evidence. The defendant relied upon a very defective tax sale, made to her husband, in July, 1836, and the statute of limitations. Brown, the husband of the defendant, it appeared by the evidence, took possession soon after his purchase for taxes, perhaps more than twenty years before the suit was begun, and continued in possession, claiming title, until his death, which occurred in 1852. Since his death, his widow has continued in possession, also claiming title. The nature of her title in no wise appears, save as it may result from the fact that she is Brown’s widow. No assignment of dower, no partition, no conveyance or devise to her, nor that she took as heir of her husband, is shown by the evidence. By the law in force when the tax deed was made, it was prima facie evidence of the facts therein recited. Rev. Stat. 1838, § 7, p. 548. The deed itself was the only evidence offered of the facts necessary to authorize a sale for taxes, and it was utterly silent as to many of those the proof of which has been repeatedly held by this court, and by all courts, to be essential to maintain the validity of such a sale. But the court instructed the jury that the tax deed “is presumed to be legal, so far as is shown by the evidence in this cause.”
It is well settled that separate successive disseizins cannot be tacked so as to constitute in law one disseizin, and a continuous single possession, unless there be a privity of estate between the successive parties so in possession, each coming in as the assignee of his predecessor, such as heir, grantee, or devisee; and if no such privity of estate exists, the seizin of the true owner revives at the termination of the possession of each disseizor, and a new disseizin is made by each successor. Doe v. Campbell, 10 Johns. 475; Jackson v. Leonard, 9 Cow. 653; Wade v. Lindsey, 6 Met. 407; Polts v. Gilbert, 3 Wash. C. C. 475; Allen v. Holton, 20 Pick. 458; Sawyer v. Kendall, 10 Cush. 241.
Was there such privity of estate between Brown, the deceased, and his surviving widow, the appellee ? Brown died before the act of 1852, concerning descents, took effect. T-Tis widow then took dower, unless she was entitled to take as heir and elected to do so. Rev. Stat. 1843, §§ 117, 118, 119, p. 437. That she took as dowress must be presumed in the absence of proof to the contrary. Id., § 120. It is argued for the appellant that a widow, taking only dower, has no privity with her husband to connect her own disseizin with his, so that the statute of limitations will begin to run with his possession. And to this point, Sawyer v. Kendall, supra, is cited. That case is conclusive upon the subject, where the widow takes only dower as at common law. The reason upon which it rests is that dower is a mere right, conferring no title to the land, or right of entry, until assignment is made. The act of 1843, however,
But it is contended that the instruction under consideration was not applicable to the evidence in the case. The patent was issued to one William Wells, who died in 1812, leaving Yelverton P. Wells his heir at law, who always lived in Kentucky, and died there in 1840. Mary K. Wells was the heir at law of Yelverton, and was born at Louisville, Kentucky, in 1840, and the plaintiffs are her heirs at law. The proposition of the appellants is that the bar of the statute of limitations, in view of these facts, only began to run when the present code took effect. The argument to maintain it is, that it did not bar while the statute of 1831 was in force, for the reason that the ancestor of the plaintiffs, then holding the title, was a non-resident of the State, and within the exception of that statute. Stephenson v. Doe, 8 Blackf. 508. That until the taking effect of the act of 1843, the plaintiffs were, therefore, protected by the act of 1831; that the act of 1843 was repealed by the code containing the present statute of limitations, under which this suit was brought, and so does not affect the case at all, and that it is enacted that no part of the code “ shall be retroactive, unless expressly so declared.” 2 G. & H., § 801, p. 336.
This question, viz., whether the present statute of limitations can be held to have begun to run as a bar at a pe
“The following actions shall be commenced within the periods herein prescribed, after the cause of action has accrued, and not afterwards: * * * * *
5. * * for the recovery of the possession of real estate within twenty years.” 2 G. & H., § 211, p. 158.
This language cannot be limited to the future, as to the period the completion of which shall bar the action. It plainly means that if the suit be not brought until twenty years after it might have been brought, it shall not be maintained. No court anywhere has ever hesitated, that we are aware of, to hold that such a statute, so worded, operates retroactively as well as prospectively by its express terms, and it has been often so ruled, in obedience to the plain language employed, when pressing considerations of justice would have compelled a different decision if it had been possible. The State v. Swope, supra, is one of many instances of this kind.
The juiy was instructed that the “ right of action accrued • as soon as Brown purchased the land.” This was so clearly wrong, that it is so conceded on behalf of the appellee; but it is contended that the error was cured by previously giving an instruction, prayed by the plaintiff's, to the effect that when a claim of title is merely colorable, the cause of action accrues at the time of taking actual possession of the land, and not at the date of the instrument giving color of. title. We do not agree that the court, after giving a cox-rect and pertixient instruction at the instance of the plaintiff, could, without error, give another ixx direct antagonism ■ with the first. Nor can we say, in this case, that the errors of the court in instructing the jury could not have injured the appellants, nor that the verdict was so cleaxdy correct upon the evidence that the judgment should be affirmed notwithstanding the errors in the record.
The judgment is reversed, with costs, and the cause remanded for a new trial.