140 So. 36 | La. | 1932
This is the same case which we already had before us and in which we handed down the opinion on January 5, 1930 (
The general facts of the case are stated in the opinion then handed down, and need not be repeated here in full; but we shall briefly sum them up so far as they are pertinent to the issues now before us, and state such further facts as are necessary for those issues.
On November 20, 1911, during the lifetime of his wife, he sold said lands to one York Whitaker, Jr., the same person who was defendant in the case of Sample v. Whitaker,
On November 21, 1911, York Whitaker, Jr., sold said lands to Isaac Whitaker, the defendant in this case. In that sale no mention was made of the reservation of mineral rights by Sample, nor did York Whitaker himself reserve any mineral rights; but the deed from York Whitaker to Isaac Whitaker purports to convey the full ownership of the land and all its appurtenances (a fee-simple title). *248
Thereupon Isaac Whitaker, the defendant here, went into immediate possession of the lands and has been in possession ever since; and there is no evidence that he had any knowledge of the reservation of the mineral rights made by Sample, or that he purchased otherwise than in good faith.
Mrs. Sample died in September, 1918, before ten years' prescription, whether liberandi causa or acquirendi causa, had accrued against her. She left seven minor children, her sole heirs, against whom said prescription, or prescriptions, of ten years ceased to run.
We are not here concerned with the ten years' prescription liberandi causa. In Sample v. Whitaker,
Accordingly the interest of these three (say three-fourteenths) and that of S.G. Sample (say seven-fourteenths) have been lost by the prescription acquirendi causa in favor of the defendant.
It is therefore patent on the face of Act No. 161 of 1920 (disregarding Act No. 64 of 1924) that the prescription had not run against them under that act at the time this suit was filed; for that prescription could not accrue against them until they completed their twenty-second year; which they had not yet completed.
And there are doubtless some minors, probably many, who were so situated that they would have been shut off from their causes of action immediately upon the act of 1924 going into effect, with only the twenty-three days' notice aforesaid, if we declare the act of 1924 retroactive and not merely prospective. And, as to those so situated, we think that the delay (notice) granted to them would be so very short as to amount to a taking of property without due process of law.
But it is a familiar rule of law that, if a statute is capable of two constructions, one of which will save the statute and the other damn it, that construction will be adopted which will save the statute. And if the act of 1924 be given only prospective force, a construction of which it is clearly capable, then the act is wholly unobjectionable. Therefore, as to all minors who would have been peremptorily shut off from their causes of action when the statute went into effect, if the act be declared retroactive, that construction must be rejected, and another construction adopted which gives the act only prospective force, thus removing from the act its only objectionable feature.
Therefore, since the act of 1924 must be considered only prospective as to some minors, and nothing in that act draws any distinction between minors, even though differently situated and therefore capable of being differently classified, the act must be applied to all minors in the same way; otherwise we will be giving the act two different meanings, though it is manifest that the Legislature intended but one meaning. We are therefore of the opinion that Act No. 64 of 1924 has no retroactive effect, but only prospective force; and under the provisions of that act the prescription acquirendi causa which was suspended as to the minor heirs *253 "of a party," not himself a minor, began to run against them only from and after the effective date of that act.
Nothing said above is in conflict with our holding in Thomann v. Dutel,
So that under that act any minor had, until he reached his twenty-second birthday, the right to assert a cause of action which might otherwise be lost under the prescription acquirendi causa by possession in good faith for ten years with a title translative of the property; and, if he died before reaching his twenty-second birthday, his heirs, whether of full age or still minors, had the same time in which to assert that cause of action as he himself would have had, had he lived.
But this was not so, because the act did not make it so, as to the heirs of a person of full age who died after the prescription had begun to run against him. If such heirs were of full age when their de cujus died, prescription continued to run against them and would accrue and be completed in the same time as if he had continued to live. But if, upon the death of a person against whom *254 said prescription had begun to run, he left minor heirs, this prescription, which formerly under the Code would have ceased to run against them, continued still to run, and was not suspended during their minority, but they had until they reached their twenty-second birthday, at least, in which to assert a cause of action which otherwise might have been barred against their de cujus, and if in turn these minors died, their heirs, whether of age or themselves minors, would simply have stepped into their shoes and be barred at the same time as the deceased minor would himself have been barred, had he lived.
It left the prescription applicable to a minor undisturbed where such minor was the first against whom the adverse possession began to run; that is to say, the minor against whom this prescription first began to run still has at least until he reaches his twenty-second birthday in which to assert his cause of action, unbarred by the acquisitive prescription of ten years; and, if he die before that time, his heirs, whether majors or minors, simply step into his shoes and are barred.
But if the person against whom this prescription first began to run were of full age, or an interdict, or married woman, or absentee, or other person whatsoever (other than a minor), then said prescription, having once begun to run, continues to run as before his or her death, and bars his or her heirs at the same time at which it would have barred him or her, had he or she *255 continued alive; that is to say, at the end of ten years from the time when the adverse possession began unless interrupted.
Act No. 161 of 1920 amends R.C.C. art. 3478 so as to read as follows:
"Article 3478. (1) He who acquires an immovable in good faith and by a just title, prescribes for it in ten years.
"(2) This prescription shall run against interdicts, married women, absentees and all others now excepted by law;
"(3) and as to minors this prescription shall accrue and apply in twenty-two years from the date of the birth of said minor;
"(4) provided that this prescription shall run against the heirs of said minor and shall not be interrupted in favor of any minor heirs of said minor.
"(5) Provided that this act shall take effect on January 1st, 1922."
And Act No. 64 of 1924 amends R.C.C. art. 3478 so as to read as follows:
"Article 3478. (1) He who acquires an immovable in good faith and by just title prescribes for it in ten years.
"(2) This prescription shall run against interdicts, married women, absentees and all others now excepted by law;
"(3) and as to minors this prescription shall accrue and apply in twenty-two years from the date of the birth of said minor; *256
"(4) provided that this prescription once it has begun to run against a party shall not be interrupted in favor of any minor heirs of said party."
When Mrs. Sample died, prescription had been running six years, nine months, and ten days. At her death it was suspended and ceased to run against her minor heirs, under the Code and until Act No. 64 of 1924 went into effect. When that act went into force, it began once more to run against them. Only three years, two months, and twenty days from the effective date of that act (July 30, 1924) were needed to complete the full ten years. This delay expired October 20, 1927. After that date their cause of action was effectively barred. This suit was filed May 6, 1930; being therefore two years, six months, and sixteen days too late.