Phelan v. Douglass

| N.Y. Sup. Ct. | Jul 15, 1855

Cowles, Justice.

The plaintiff was born on the 14th Dec., 1820. By well-settled rules he was competent to bring suit, as being of full age, on the 13th of Dec., 1841. (1 Salk. 44; 6 Mod. 557; 4 Dana R. 557; 1 Black. Com. 463 ; 2 Kent’s Com. 233; 1 Pow. on Dev. 128-9; M'Pherson on Inf. 447.)

The mortgage in question was given on the 15th June, 1821, and became due on the 15th June, 1822. The mortgagor (plaintiff’s father) died Oct. 13, 1822.

The decree for the foreclosure of the mortgage and sale of the premises was made the 7th June, 1823, and the sale took place, under which the mortgagee (Douglass) purchased, on the 2d July, 1823.

As Douglass was neither ip possession of the premises nor claimed a right to the possession of them under his mortgage, until the decree of sale and his purchase under it, the right of action to redeem must be regarded as commencing from that date, so far as to fix a date from which the statute of limitations-would begin to run. From the date of the purchase, and not before, Douglass claimed an exclusive right to the possession of the premises by title, adverse and hostile to the claim of redemption now set up. But at that date the plaintiff was an infant, and, by 2 R. S. 295, § 16, was allowed ten years after the termination of his infancy within which to sue. As he was capable of suing on the 13th of Dec., 1841, that section of the Revised Statutes extended his time to sue until the year 1851. He brought this suit on the 13th day of December, 1851, and the first question presented is, whether he was in time, or was barred by the statute of limitations.

The plaintiff claims that the suit was properly brought on the 13th, while the defendant claims that the right of action expired with the expiration of the 12th day of December, 1851.

It has become a well-established rule in this state, that whenever an act is to be done in a certain number of days, months, or years, from the happening of any event, or the doing of any act, that, in the computation of time, the day on which the event happened, or the act was done, is to be excluded. Thus, a note due thirty days after date is payable on the 30th day, excluding from the count the day on which the note was dated.

' In ex parte Dean, (2 Cow. 605,) the facts showed a judgment docketed on the 12th Sept. The statute was, that the bond, on appeal, might he given “ at the time of rendering judgment, or within four days thereafter.” Held, that a bond' given on the 16th was in time.

In Homer agt. Liswell, (6 Cow. 660,) an execution was issued 7th March. The statute required it to be returned by the officeV “ in thirty days from the date.” Held, that he had the whole of the 6th April in which to make return.

In Cornell agt. Moulton, (3 Denio, 12,)'note was dated 14th day of the month, and suit brought on the 14th day of the corresponding month six years thereafter. Held, in time; and the day of the date was to be excluded in the computation.

In Snyder agt. Warren, (2 Cow. 520,) land was sold on execution on the 15th August, 1822. On the 15th Nov., 1823, a judgment creditor offered to redeem. Held, to be within fifteen months after the sale, and so in time.

Such, too, has been the well-settled rule under our statutes in respect to time of pleading, putting in appearance, complying writh orders of the court, and all other cases where any act is required to be done in a certain number of days after the service, of a former pleading, notice or order; the day of the service is excluded in the computation of time. (See also Commercial Bank of Oswego agt. Ives, 2 Hill, 355.)

The reason of this rule is very obvious:—the law takes no notice of fractions of a day, except in certain cases where the hour itself becomes material—as the precise time when two judgments were docketed. Time is not, therefore, computed from the hour of the day on which the event happened, to the corresponding hour of the day of performance; but the computation is from the day when the act was done, such day being regarded as a point of time. The computation begins with the expiration of such day. It is thus computed literally from such day, that is, from its close, its ending, its expiration.

It. will be observed that the day so excluded in all these cases has been partially spent—it is, in part, actually gone when the event happens—and for that reason is also excluded, since, if counted, it would fail to give the party to be affected the whole of that day, but only a fractional part of it, and yet c it as a whole day.

The law will not take notice of fractions of a day, anc fraction is excluded. But the reason of the rule ceases v ever the party affected has a whole and entire day, as o those to be included in the computation.

This principle is recognized by Mr. Justice Nelson ii People agt. The Sheriff of Broome. In that case the pre were sold on the 18th day of July, 1835. On the 19th october, 1836, a judgment creditor claimed to redeem. Thi was held to expire on the 18th day of July, 1836, and the ute required the judgment creditor to redeem “ within months after the expiration of such year.” Mr. Chief J Nelson says, “ If we count the nineteenth day of July, as we should do, the three months, commencing the beg't of that day, will expire on the eighteenth day of Octob lowing. Here there can be no fraction of the nineteen of July to be disregarded, as the whole of it necessarily within the three months by the statute, commencing on 1 piration of the year, which is the last moment of the eigi day of July.”

The rule laid down in the last case is entirely consiste: that laid down in the other cases above cited. Indeed, i only one which can be consistent, and make the rule v in its operation. Whenever the whole day, and every i of it, can be counted, then it should be; whenever, if c the party would, in fact, have but a fractional part.of it should not be counted.

By counting it in the first class of cases, the party [ full and entire number of days, months, or years, intei be given. In the other he gets the fractional parts of less than his full time.

The law governing the case (2 R. S. 295, § 12,) j that, “ If any person entitled to commence any actioi article specified,”—(and this is one of them,)—“ sha the time, &c., within the age of twenty-one years,”—( here,)—the time during which such disability shall c 11 not be deemed any portion of the time limited for the nmencement of such suitbut such person may bring such ion “ after the said time so limited, and within ten years ir such disability removed, but not after that period.” ' lere, as we have seen, the party could have sued on the 13th r of December, 1841. His disability to sue ended with the firation, with the last moment of the l2f/¿ day of December¡ tl. With the last moment of that day his disability was loved, and he could sue during the whole of the 13th, and l moment of that day. He had ten whole years after such isability removed ” to bring his suit. We must, in computing t ten years, take in the 13th day of December, 1841, bese he had the whole and entire part of that day to sue in,— ; a fractional part, but each and every moment of it,—coming that as the first day of the ten years, and that period ex-ed with the expiration of the 12th day of December, 1851. did not sue until the 13th of that month, and then his whole years had expired, and the statute barred his claim.

Is this view of the case is conclusive, it is unnecessary that rould examine the other questions raised by the defendants. The plaintiff has brought his suit one day too late, and the aplaint must be dismissed, with costs.