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nity from either, or any illegality in the original transaction, out of which the deposit arose, will of course do away with the bona fides of the application, and form an effectual bar to it, as showing collusion. The reverse, however, seems to be the case with regard to a mere demand of indemnity, prior to the action, when not complied with. It is evident that no remedy of this kind exists before action brought; and, of course, if the party prefer to institute a separate suit for the same purpose, it is competent for him to do so, though probably at the risk of costs, if such separate suit prove to be clearly unnecessary.
The proper mode of applying for this species of relief, or that last previously mentioned, would appear, by analogy, to be by mution, founded on a duly verified petition. The latter appears to be advisable, if not necessary, inasrnuch as either of such applications must, of necessity, be grounded upon a substantive statement of facts, unconnected with the matter regularly in question in the cause; and it is of course necessary that such statement should be duly brought before the court, and should duly appear upon the face of the order granted upon it, or rather upon the petition, as, in effect, part of the order,--so that the circumstances under which the court has exercised its discretion in the matter may be duly apparent upon the record.
The subject of abatement of suits, and the measures necessary thereon, will be found considered hereafter in that portion of the work which treats of the proceedings intermediate between the original joinder of issue and its trial.
OF THE LIMITATION OF ACTIONS.
Tuis subject, as was the case with the last, divides itself naturally, in the first instance, into two branches, involving, Ist, the consideration of the limitations of actions, as applicable to real estate, and 2dly., in reference to personal property. These two different subjects will accordingly be treated of successively in the above order; the preliminary provision of the Code, abolishing the former law thereon, being previously noticed ; and a few supplementary observations, applicable to the limitation of actions in general, being subjoined at the conclusion of the chapter.
The provisions of the Code on these subjects are contained in the second title of part II. of that measure, and consist of four chapters. The three last of these follow the order above prescribed; the first being of a general and preliminary nature, and containing only two sections.
By section 73, the first of those last alluded to, the whole of the provisions of that chapter of the Revised Statutes which contains the general statute law on this subject, are expressly repealed; so that, in relation to all future controversies, the Code, and the Code alone, will henceforth be authority.
As to actions commenced, or rights accrued previously to its passage, the old law still governs.
Where, however, a previous right of action stood already barred at the actual time of that passage, it was held that a subsequent parol acknowledgment of that right, though sufficient to have revived it under the former statutes, had no such effect, the Code being in actual operation at the time such acknowledgement took place, and the provisions of section 90 being applicable accordingly, without attributing to those provisions any retrospective effect whatsoever. The alleged verbal promise was a transaction subsequent to the passage of the Code, and was, as such, governed by the statute law in existence at the time of its actual making.- Wadsworth v. Thomas, 7 Barb. S. C.R. 445; 3 C.R. 227.
The other introductory section, (74), after general provisions in relation to the following limitations, contains a further general reservation of all other cases in which a special limitation is prescribed by statute, independent of the provisions repealed as above, which special limitations will be treated of as they occur.
An important provision has been added at the conclusion of this section, on the amendment of the measure in 1851, i.e., that objections of this nature can only be taken by answer. triction, in this respect, was imposed by the Codes, either of 1848 or
1849, and in Fellers v. Lee, 2 Barb. S.C.R. 488, it was treated as a well-settled rule, that, when actually apparent on the face
a of the complaint, demurrer would lie.
In reference to limitations in general, it may be remarked that so long as a right remains suspended and vested in no one, the operation of the statute is suspended also. Thus, in a case where an action was brought by an administrator, in respect of property, received after the intestate's death, but before administration taken out, it was held that the statute did not com-. mence running until the latter date-Bucklin v. Ford, 5 Barb. S. C. R. 393.
We now arrive at the consideration of the limitations imposed on actions for the recovery of real property, as contained in chap. II. of the title in question.
The first subject entered upon is that of actions by the people of this state, or their grantees.
The limits imposed in this respect are as follows, viz. : that the people or their grantees will not sue in respect of real property, by reason of the title of the former, unless,
1. Such right have accrued within 40 years previous to action, or other proceeding for its assertion; or,
2. Unless the people, or those from whom they claim, shall have received the rents and profits of such real property, or some part thereof, within the same period.-Code sec. 75: and by sec. 76 the same limitation is imposed upon grantees of the people, claiming under their grants. By section 77, this period of limitation, in the case there provided for, is shortened by onehalf, and twenty years only are allowed for bringing actions by the people or their grantees, in cases where a recovery is sought of lands previously granted, but the grants of which have been revoked on the ground of fraud or of defective title.
In interpreting these sections, however, the right of eminent domain, by virtue of which the people are the unquestioned owners of all waste and unoccupied lands within the state, must not be overlooked, or a most serious mistake may be committed. Extensive as the words of the above limitations may seem, in practice they only apply to cases where there has been positive adverse possession, (actual and not constructive, and capable of distinct proof) of the whole matter in controversy, during the whole of the period of limitation. The onus probandi in such cases lies, moreover, upon the defendant, who must plead the
facts, or show an adverse title in himself by special allegation. A mere averment, that no right has accrued to the people within forty years, &c., following the words of the above section, was held in The People v. Van Rensselaer, 8 Barb. S. C. R. 189, to be insufficient, and a demurrer on that ground was allowed.
This decision is, however, so far overruled by the case of The People v. Arnold, 4 Comst. 510, where an answer, following the exact words of the statute, was held to be good, as pleading the facts of the case, and not the evidence in support. It was held, however, that, on the trial itself, an unquestionable and actual adverse possession must be shown.
In The People v. Van Rensselaer, above cited, the rule that, in such cases, every presumption is to be made on behalf of the people, and against parties claiming in opposition to them ; and that the mere fact of lands having been actually unoccupied, is of itself sufficient to show a prima facie title on their part, unless rebutted by distinct evidence of actual adverse possession, or of adverse documentary title: is laid down in that decision in the most unequivocal terms, and to the fullest extent of the high prerogative doctrines held in the older English cases upon similar subjects.
In The People v. Livingston, 8 Barb. S. C. R. 253, similar principles are also most distinctly and most unequivocally asserted, though, under the peculiar circumstances of that case, the prima facie title of the people, as above alluded to, was rebutted by proof of an old grant from the English crown, under which, title in the waste lands there sought to be recovered, had been originally conferred upon the parties claiming to hold them.
The dispositions of the Legislature upon this particular subject are further evidenced by the resolution of 10th April, 1848. See Laws of 1848, page 582, expressly directing the Attorney general to impeach all manorial titles throughout the State, wherever it may be found practicable; and by the provisions of c. 128 of the laws of 1850, declaring that proceedings so instituted by him, shall have precedence over all others.
The period of limitation in ordinary real estate cases, is fixed by sections '78 and 79 at twenty years, as under the Revised Statutes; within which period, the party prosecuting or defending a claim to, or in respect of, real property, must show seizin in himself or his ancestor, predecessor, or grantor ; whilst, by
section 80, a bare entry is declared insufficient to establish, or to strengthen a claim, unless an action be commenced thereon within one year after, and also within the period above prescribed.
Mere possession of the property, not adverse to the right of a claimant, is, under section 81, to be deemed subordinate to the legal title: and, in every action, the person establishing such legal title is to be presumed to have been duly possessed, unless the contrary be shown. Under sec. 86, the possession of a tenant, at any time, is to be deemed the possession of the landlord, until the expiration of twenty years from the termination of the tenancy, or the last payment of rent; whilst, by sec. 87, it is expressly declared that no right to property shall be affected, by reason of a descent being cast, by the death of the person in actual possession.
The doctrine of adverse possession is defined by the chapter now under consideration, as follows, i. e.
Where it shall appear that the occupant, or his predecessors in title, entered into possession of premises under claim of title, exclusive of any other right founded upon a written conveyance, or upon the decree of a competent court, and that there has been a continued possession of such premises, or of part of. them, under such claim, for twenty years, such possession shall be deemed adverse. And such adverse possession shall extend to the whole property, of which a part has been so held, except where that property shall consist of a tract divided into lots, in which latter case the possession of one lot, shall not be deemed that of another of the same tract.-Sec. 82.
By sec. 83 the premises comprised within the scope of an adverse possession of this nature are defined to be as follows, viz.:
1. All land usually cultivated and improved.
3. All unenclosed land used for the supply of fuel or fencing timber.
4. Any portions of a partially improved farm or lot, left uncleared or unenclosed, according to the usual course or custom of the neighboring country.
An inferior species of adverse possession may also, under sec. 84, be acquired by actual continued occupation, under a