| NY | Apr 5, 1851
The people of this state have agreed that they will not sue, or implead any person, for or in respect to any lands, by reason of any right or title of the people to the same, which shall not have accrued within the space of forty years before suit for the same be commenced, unless the people, or those under whom they claim, shall have received the rents and profits thereof within the said space of forty years. (1 R.L. 184, § 1.) I have given all the words of the statute which are material to the present inquiry. In this action the people sue to recover the possession of certain lands, and alledge that they have good title, and are the true owners of the same in fee simple. The defendant answers in all due form, and with technical accuracy, that no right or title to the lands in question accrued to the plaintiffs within the space of forty years before the commencement of this action: and that neither the plaintiffs, nor those under whom they claim, have received the rents and profits of the land within the said space of forty years before the commencement of this action. To this answer the attorney general has demurred. By doing so he has admitted all the facts which are well pleaded; and those facts plainly show that the action is barred. The matter may be brought to a point in a few words. The people say, in substance, that they will not sue for any lands when their right or title to the same did not accrue within forty years before suit commenced, unless they have received the rents and profits within that time. The defendant answers the action by saying, that the right or title of the people to the lands in question did not accrue within *511 forty years, nor have the plaintiffs received the rents and profits within that time. The answer is in the usual form of pleading the statute of limitations. It follows the words of the law, and presents the precise case, or state of things, in which the people have said that they will not sue. (See Ford v.Babcock, 2 Sand. S.C. 523.) I can see no room for so much as a doubt that the action is barred.
If the facts mentioned in the answer can be controverted, the people should have replied, instead of demurring, and made an issue upon one branch or the other of the answer. If the title of the people accrued more than forty years before suit brought, as has been suggested at the bar, the only replication of any use would be upon receiving rents and profits. What proof would support such a replication would be a question of evidence on the trial.
The attorney general insists that there must be an adverse possession of forty years to bar an action where the people have title. If that be so — and I think it is — it must be for the reason that the people may be deemed to have received the rents and profits, within the meaning of the statute, whenever the land was not held in hostility to their title; or, in other words, whenever the case was such that they might have taken the rents and profits if they had chosen to do so. Still, the statute says nothing about adverse possession, and that is not a matter to be pleaded. The statute puts the bar upon the non-receipt of rents and profits; and the defendant has pursued the only proper course by pleading that fact. If the people may be deemed to have taken the rents and profits whenever the land was not held in hostility to their title, then the averment in the answer, that the people have not received the rents and profits, amounts to an averment that the land has been held adversely. In short, the words "received the rents and profits" cover just as much ground in the answer as they do in the statute: they mean the same thing in both places. The defendant has pleaded the fact on which, by law, the bar depends, instead of pleading the evidence of the fact; and until good pleading shall be made unlawful, the answer must be held sufficient.
The substance of our statute of 1801 was taken from the *512 English nullum tempus act, 9 Geo. 3, ch. 16. It is one of the prerogatives of the king that laches can not be imputed to him; and he is not within the general statutes of limitations, because not named in them. The crown rarely acquired title to lands which were not purchased or taken for immediate occupation, except by escheat for defect of heirs, or forfeiture for offences. As time did not run against the king, he might assert his right by escheat or forfeiture at any period, however long, after the title accrued, although the lands had in the mean time passed through the hands of many innocent purchasers; and in that way an injury was done to third persons. To remedy this mischief, the statute provided, in substance, that the king should not sue where his title had not accrued within sixty years, unless he had within that time been answered by force of such title in respect to the rents and profits. The meaning of the legislature seems to have been, that the king should be barred when he did not sue within sixty years after his title accrued, or within that time after his title had been acknowledged by paying, or conceding his right to the rents and profits. As all the lands in England are in the actual occupation or enjoyment of some one, there is less difficulty there in applying the statute than there is here, where the state has always owned large tracts of wild or uncultivated lands which were not in the actual possession or enjoyment of any one. But clearly the people must be deemed to have received the rents and profits of such lands within the meaning of this statute. The title draws to it the constructive possession of unoccupied lands: and there is no legal impropriety in saying that a man receives the rents and profits when they are not taken by any one else, and he has all the enjoyment of the property which its condition will permit, or he chooses to take. And I see no objection to going still further, and saying that the people receive the rents and profits, within the meaning of this statute, although the property may be actually occupied by one who makes no direct return for the use, provided he holds by permission of the owners, or in subordination to their title. The occupant retains the rents and profits in such a case, not as a right, but as a gratuity: and the people *513 may well be said to receive that to which their title is admitted, and which they allow the occupant to have as a mere benevolence or gift. We think it could not have been the intention of the legislature to defeat a title in the people which accrued more than forty years before suit brought, unless the land had been held for that period in hostility to the title. Still the matter to be pleaded in bar is not adverse possession, but the fact mentioned in the statute, that the people have not received the rents and profits.
I have not stopped to notice the admitted doctrine that the people can not be disseized, nor to inquire whether there can be a technical adverse possession against them. What we mean to say is, that to constitute a bar, there must be such a holding for forty years as would constitute a good adverse possession the land had been owned by an individual, instead of the state But although we agree with the attorney general on this point, we think the answer good, and consequently that the judgment should be affirmed.
McCOUN, J. was of opinion that the answer did not set forth facts sufficient to bring the defendant's case within the meaning and operation of the statute. He therefore dissented, and delivered his opinion at large.
Judgment affirmed.