1. The statute of limitations applicable to the action of
ejectment has no relation to the lien of a judgment creditor on the
lands, though the judgment debtor may sell and convey them with
possession to the party setting up the statute.
2. That statute does not begin to run in such case until the
lands have been sold under an execution sued out on the judgment,
and the purchaser of them becomes entitled to a deed, because,
until then, there is no right of entry or of action against the
party so in possession.
3. That statute begins to run against the judgment creditor only
when he is such purchaser, and can bring ejectment. These
propositions are applicable to the statute of Illinois of 1835
limiting actions for the recovery of lands to seven years.
The facts are stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
This is an action of ejectment in which plaintiff in error was
plaintiff below. On the trial, he proved title in Isaac Speer in
August, 1857, at which time he recovered a judgment against said
Speer, under which the land in controversy was sold July 8, 1863,
and a deed made to plaintiff, founded on that sale, Feb. 24, 1865.
There does not seem to be any question but
Page 96 U. S. 705
that this vested in the plaintiff the legal title to the land
some four years before the date of the commencement of this action,
which was the fifteenth day the May, 1869.
Defendant relied solely on the statutes of limitation of seven
years as found in the acts of the Illinois Legislature of 1835 and
1839, p. 675 of the Revised Statutes of 1874. We are not favored
with any argument, oral or written, by the defendant in error, and
have had to find out for ourselves on what he bases the defense of
the court's ruling.
It does not appear that the defense under the act of 1839 was
established; but the court instructed the jury that if they
believed certain facts were proved, which facts had reference to
the seven years' possession under the act of 1835, their verdict
should be for the defendant.
The law of 1835 provides that,
"No person who has or may have any right of entry into any
lands, tenements, or hereditaments, of which any person may be
possessed by actual residence thereon, having a connected title in
law or equity, deducible of record from this state or the United
States, or from any public officer or other person authorized by
the laws of this state to sell such lands, for nonpayment of taxes,
or from any sheriff, marshal, or other person authorized to sell
such land on execution, or under any order, judgment, or decree of
any court of record, shall make any entry therein, except within
seven years from the time of such possession being taken; but when
the possessor shall acquire such title after the time of taking
such possession, the limitation shall begin to run from the time of
acquiring title."
The defendant has, we think, brought himself within the language
of this section by sufficient proof, so far as actual possession
for seven years under a connected title in equity deducible of
record from the United States could do so. And on this proposition
alone, the court told the jury to find for the defendant; but this
instruction failed to give effect to other evidence before the jury
and undisputed, which, we think, had an important bearing on the
case.
Upon an examination of the plaintiff's title, it will be seen
that he had no right of entry until Feb. 24, 1865. If the statute
began to run against him at that time, it had not run seven
Page 96 U. S. 706
years, but only a little over four, when the suit was brought.
Nor was there a right of entry, or right of action, in any person
against defendant during his entire possession, until the marshal's
deed was made to the plaintiff; for the reason that the equitable
title under which the defendant held possession was derived from
Speer. That is to say, after the judgment of the plaintiff against
Speer was rendered, and a lien on the land thereby established in
favor of the plaintiff, Isaac Speer, the judgment debtor, conveyed
the land to Thomas Speer, and Thomas Speer conveyed to Samuel
Roberts, and Samuel Roberts to Charles L. Roberts. The defendant
connected his possession with this title, by showing a contract of
purchase from Charles L. Roberts. It is obvious, from this recital,
that there was no one who could lawfully enter upon the land in the
defendant's possession until the plaintiff's judgment lien had
become perfected into a legal title by sale and conveyance.
Was it the purpose of this statute that the period of limitation
should begin against one who had a lien of record on the land, but
who was in no condition to make entry or bring suit, and when the
person in privity with him, that could otherwise have made entry or
brought suit, had parted with that right to the defendant?
The very first words of the section describe the person against
whom the act is directed as a person having a right of entry. While
no such strict construction can be maintained as that this right of
entry must be in the same person during the entire seven years that
possession is running in favor of the defendant, it seems
reasonable that this period of seven years is not be begin when
there was no right of entry in any one who could oust the
defendant. The principle on which the statute of limitations is
founded is the laches of the plaintiff in neglecting to assert his
right. If, having the right of entry or the right of action, he
fails to exercise it within the reasonable time fixed by the
statute, he shall be for ever barred. But this necessarily
presupposes the existence of the right of entry or the right to
bring suit. There can be no laches in failing to bring an action,
when no right of action exists. There can be no neglect in
asserting a right to the possession of property held by another,
when that other is in the rightful possession.
Page 96 U. S. 707
But the possession then rightful may, by the termination of the
right under which it is held, or by the creation (in some legal
mode) of a superior title, cases to be rightful. The right of
possession may, in some of these modes, come into another. It is
then that laches begins, if the person who has thus acquired the
better right neglects to assert it. And it is then that the
principle of the limitation of actions for recovery of the land
first applies; and, if uninterrupted for the prescribed period,
becomes a perfect bar to the recovery of the rightful owner. There
is nothing in this statute which appears to conflict with this
view. The possession must be continuous, and connected with color
of title, legal or equitable. There must be a right of entry in
someone else to be tolled by this seven years' possession, and the
possession must be adverse to this right of entry.
It is said that, under the decision of the courts of Illinois,
such possession as that of the defendant in the present case is
adverse to all the world. There is no doubt but the Supreme Court
of Illinois has said this, and that, in a general sense, it is
true.
The defendant, having purchased the land of the person who had
the legal title, does undoubtedly hold adversely to everybody else.
He admits no better right in any one. He is no man's tenant. The
right by which he holds possession is superior to the right of all
others. He asserts this, and he acts on it. His possession is, in
this sense, adverse to the whole world. But it is not inconsistent
with all this that there exists a lien on the land -- a lien which
does not interfere with his possession, which cannot disturb it,
but which may ripen into a title superior to that under which he
holds, but which is yet in privity with it. In the just sense of
the term, his possession is not adverse to this lien. There can be
no adversary rights in regard to the possession under the lien, and
under the defendant's purchase from the judgment debtor, until the
lien is converted into a title conferring the right of possession.
The defendant's possession after this is adverse to the title of
plaintiff; and then, with the right of entry in plaintiff, the bar
of the statute begins to run.
This is a question of the construction of the statutes of
Illinois,
Page 96 U. S. 708
and the case of
Martin v. Judd, 81 Ill. 488, is
supposed to be in conflict with what we have here said. But we are
unable to see anything in that case to justify such a conclusion.
It is true that plaintiff in that case, as in this, asserted title
under a judgment, a sale, and marshal's deed. The defendant
asserted title under a judgment against the same party, and a sale
and conveyance by the sheriff. The judgment under which plaintiff
claimed was rendered July 14, 1854; sale, Sept. 1, 1856; and
marshal's deed, June 28, 1858. The judgment under which defendant
claimed was rendered March 4, 1858; sale, Nov. 7, 1859; sheriff's
deed, Oct. 14, 1862. The defendant relied on the seven years'
statute of limitation. The suit, however, was commenced April 7,
1873; and the plaintiff had his marshal's deed June 28, 1858, which
was fifteen years before he brought his action. The plaintiff,
therefore, had the right of entry and a right of action for fifteen
years before he brought suit.
During all this time, or at least during the last seven years of
it, the defendant had a possession under a title which was in every
sense adverse to that of plaintiff.
In the case before us, plaintiff sued within five years after
his lien became a title. Two of the seven years' possession on
which defendant relies was at a time when plaintiff had no title,
and consequently no right of action, and while none existed in
those from whom he derive title.
Martin v. Judd cannot
therefore raise the only question there is in this case. The
instruction of the court to the jury, and the comments in the
opinion of the supreme court, show that the point in controversy in
that case was whether the defendant had shown a continuous
possession adverse to the plaintiff. That it was adverse, there can
be no doubt; though it was insisted that it was otherwise, because
held under a title derived from the same person that plaintiff's
was. But it is very clear that, after the deed of the sheriff under
the sale on the junior judgment, the possession held under that
deed was a possession in conflict with and adverse to the title
then held by plaintiff -- namely his deed under the senior
judgment.
The opinion in
Martin v. Judd refers to, and cites with
approbation, the opinion of the court in
Cook v. Norton,
48 Ill. 20. That case was twice before the Supreme Court of
Illinois,
Page 96 U. S. 709
and received (as is evident) a very careful consideration. It is
reported in 43 Ill. 391, and in 48
id. 20. In that case,
Ryan was the common source of title. A judgment was recovered
against him, Aug. 14, 1845; and a sale under execution on that
judgment was made April 8, 1846. No deed was made under this sale
until July, 1860, more than fourteen years after the sale, though
the certificate of sale was filed in the recorder's office when it
was made. Ryan conveyed the property, in a few months after the
judgment was rendered, to persons under whom the defendant held
title and possession. The suit was commenced within the seven years
after Cook obtained the sheriff's deed; but, as this was fourteen
years after the sale, the question raised was when the statute
began to run against Cook's title. A few extracts from the learned
opinion of Mr. Justice Lawrence will show that the court is in
accord with the views we have already expressed.
"Would any one deny," he asks,
"that the purchaser in possession could protect himself, by
proper proof, under the statute of limitations, if more than seven
years had elapsed from the time when the prior purchaser has
received or might have received his deed? . . . The defendant has
never acknowledged a lessor, nor any title paramount to his own. It
is true the statute of limitations did not begin to run in his
favor until the expiration of fifteen months from the sheriff's
sale; because until then there was no outstanding title upon which
suit could be brought. But upon that day the purchaser at the sale
was at liberty to take out his deed, clothe himself with the legal
title, and demand possession; and from that day the statute began
to run."
The fifteen months here alluded to was the time which was
allowed after a sale under execution for the debtor, or any other
judgment creditor of the debtor, to redeem the land, by paying the
amount for which it sold, with interest. "But," continued the
court,
"although the sheriff's deed made on that day would have
divested the legal title from Clark and vested it in the purchaser,
that fact would not have converted Clark into a tenant. From that
moment he became a trespasser, and might have been sued as
such."
Again, speaking of the defendant Clark, the court said:
"His possession began under his deed as a possession hostile to
all other persons,
Page 96 U. S. 710
and, though the statute of limitations did not begin to run
until the expiration of fifteen months from the day of the
sheriff's sale, it was not because there was no adverse possession
in fact until that day, but because until then there was no person
in being who could bring the suit. That the sheriff's deed must be
considered as having been made when the right to it accrued, so far
as the statute of limitations is concerned, is conceded by counsel
for appellant."
These very clearly stated views of the Supreme Court of Illinois
must control the present case. The plaintiff's right to the
marshal's deed accrued July 8, 1863. The statute of limitation
began to run on that day, and the bar of seven years would have
become perfect on the 8th of July, 1870. This suit, however, was
commenced on the 15th of May, 1869, more than a year before the
statute bar was completed.
If we are wrong in what we have supposed to be the law, it must
follow that, in all cases in which the owner of real estate owes
money which is a lien on the land in his hands, the statute of
limitation begins to run against that lien as soon as he conveys
the land with possession to someone else. It can make no difference
in the principle asserted, whether the lien be created by a
judgment or by a mortgage. Nor can it make any difference whether
the debt secured by the lien be due when the conveyance is made, or
has ten or twenty years to run before the lien can be enforced
against the land. The principle asserted is applicable in all these
cases -- namely, that from the day of the conveyance, by the
debtor, of the land on which the lien of the debt exists to some
third person, accompanied by transfer of possession, the possession
of the purchaser is adverse to the lien holder, and the limitation
of seven years begins to run. If this be established to be the law,
the owner of real estate may borrow money on ten years' time, to
the value of that estate, and give a mortgage on it to secure
payment; and by a sale and conveyance of the land to a third
person, with delivery of possession week afterwards, the lien is
utterly defeated. For, according to this doctrine, the statute of
limitation begins to run against the mortgagee the moment the title
and possession are vested in the purchaser, and the bar of the
statute becomes perfect against all the world by seven years'
possession,
Page 96 U. S. 711
whereas the mortgagee can take no steps to foreclose his
mortgage until his money comes due three years later.
And this doctrine is asserted in the face of the fact that there
is a limitation law specially applicable to the enforcement of the
judgment lien by sale under execution, and of the mortgage lien by
foreclosure.
This question came before the Supreme Court of Pennsylvania in
the case of
Coutler v. Phillips, 20 Pa.St. 155, and was
fully discussed. We will close this opinion by giving verbatim the
closing remarks of the court in that case, so perfectly applicable
to the one before us.
"Lien creditors are subject to a limitation of five years, but
the statute of limitations that concerns the action of ejectment
has no relation to them. They have no estate in the land, no right
of entry, no action to be affected by the statute. The statute bars
the right of action and protects the occupant not for his merit
(for he has none), but for the demerit of his antagonist in
delaying his action beyond the period assigned for it.
Sailor
v. Hertzogg, 2 Barr 185. But what right of action has a lien
creditor to delay? His only remedy is by levy and sale. He then has
an estate and a right of entry. The statute may then attach;
before, it cannot."
The peremptory instruction of the circuit court to the jury that
the facts we have stated established a good defense was erroneous,
and the judgment must be reversed and a new trial had, and it
is
So ordered.
MR. JUSTICE CLIFFORD dissenting.
I dissent from the opinion of the Court in this case for two
principal reasons:
1. Because it conflicts with the decisions of the state court
upon the same subject.
2. Because the statute of limitations applicable to the case
began to run when the defendant acquired the open, exclusive,
adverse possession of the premises by actual residence thereon
under claim and color of title, it appearing that he continued to
reside there without interruption for the period of seven years
prior to the commencement of the suit, having entered pursuant to a
contract with the owner, who had a connected title
Page 96 U. S. 712
to the same, deducible of record, from the United States, and
that the defendant subsequently acquired the title to the premises
in pursuance of the contract, the rule being that such an adverse
possession, if uninterrupted and continued for the period of seven
years, is equivalent to an absolute title when confirmed by a
conveyance from the party having a connected title deducible of
record, from the United States. Examined in the light of these
suggestions, it is clear in my opinion that the case was properly
submitted to the jury and that the judgment founded on their
verdict should be affirmed.