George Perry, Plaintiff in Error, vs. Nicholas Lewis, Defendant in Error, 6 Fla. 555

PEARSON, J., delivered the opinion of the Court. This is an action of Trover brought to recover the value of a slave lost by Lewis, the plaintiff below,, in Sumpter County, Alabama, in July, 1844—sold by one Jones, to Henshaw of Covington County, Alabama,, on the 11th November, 1844—by Henshaw again sold to- Criglar of Sant* Rosa County, Florida, on the 26th June, 1848—and finally sold by Criglar to the present plaintiff in error, Perry, who was the defendant below of the same county and State, on the 26th October, 1849, the plaintiff being ignorant whose possession the slave was in, until April, 1851.

Upon demand and refusal of the delivery of the property to plaintiff, action was brought on the 2d June, 1851. There were several pleas filed by defendant, but the only one relied upon for the defence was the statute of limitations of this State.

Upon the trial below, the court was moved to instruct the jury, “That if they were satisfied from the evidence that there was a continued adverse possession of the negro by Henshaw, Criglar and Perry, under their respective bills of sale, part of the time in the State of Alabama, and part of the time in the State of Florida, and that the time during which Henshaw had adverse possession of the negro in Alabama under the sale to him, when connected with the time during which Criglar and Perry successively had adverse possession of him in the State of Florida under.the respective sales to them, would, when added together, amount to five years next before the commencement of the suit, then the plaintiff ought not to recover.” Which instruction the court refused—the defendant excepted, and the jury having found for the plaintiff, and judgment being rendered accordingly, the defendant’s counsel appealed and assigns such refusal as error.

The statutory bar of the action of Trover in Alabama is six years—in this State five years. From the foregoing statement it is apparent that the plaintiff was not barred during.tho possession of Henshaw in the State of Alabama under and by virtue of the statute of limitations of that State i and it is equally manifest that he was not barred under our statute of limitations by the possessions of Criglar and of the defendant Perry, even if connected together, in this State.

While it appears that if the possession Henshaw in the State of Alabama can be tacked to that of Criglar and Perry in this State, the prescription of our statute would be complete. The questions therefore presented for our consideration are, 1st. Is the doctrine of tacking possessions admissible in an action of Trover ? 2d. If such doctrine is admissible will it apply in a case where one of the possessions relied upon occurred in another State? 1.

Upon the first question we express no opinion,'because the minds of the Court are not fully agreed in relation to it, and a majority of the Court are of opinion that a proper-solution of the second question is decisive of the case. The principles in regard to tacking possession will be considered when they shall necessarily arise before us. * 2.

Conceding for the purpose of the present argument that the doctrine of tacking does prevail to some extent, we are met by the second question as to whether a statutory bar can be made out by tacking part of the time which the statute of limitation has run under the statute of anothr er State, to another part which has elapsed under the statute of this State. This question is so well settled upon principle and authority that it scarce requires discussion at this day. It was not made or discussed before us, but must necessarily control this case. Our statutes of limitation, by an amendment enacted in 1846, Thomp.

Dig., p. 443, § 2, place non-resident plaintiffs upon the “ same footing” with resident citizens of the State. Uor is there any special exceptions from the general law of limitation in behalf of defendants, save those contained in the amendments of 1833 and 1835, Thomp. Dig. p. 445, § 1 and 2, by which they are permitted in cases where the cause of action arose abroad to plead the statute of limitations of the foreign state or place where it accrued, provided it would be a good bar in such place.

This provision is obviously not applicable to a defendant whose liability arose in this State .—nor has the defendant sought to obtain its benefit by pleading the prescription of Alabama. The parties then stand simply upon the footing of two citizens' of the State-litigating a cause of action arising in the State, within the limit of State prescription.

For it is manifest the plaintiff had no cause of action against the defendant Perry, previous to his possession of the negro by purchase from Criglar, on the 26th October, 1849, although a right of action had accrued to him in the State of Alabama, as far back as the 11th November, 1844, against Henshaw, who purchased at that time from Jones.

This right of action might have been pursued successfully at any time within the statutory period against Henshaw in the State of Alabama, and if neglected until Henshaw’s possession ripened into title by the lapse of time in Alabama, then Henshaw’s sale to Criglar would have conferred title, and in like manner Criglar’s conveyance to the 'defendant Perry would have vested the title in him, of which he might have availed himself under the general issue. 5 Clark & F. Rep. 1, 15, 16, 17 ; 3 Strob. R. 331; Story’s Conflict of Laws, §582 ; 5 Yerger, p. 1.

But Henshaw’s possession was less than the statutory limitation of Alabama, and therefore conferred no title upon him. There is then no ground of defence for the defendant but in assuming that the statute of Alabama, having commenced to run against Henshaw, would continue to run, notwithstanding intervening disabilities, not only in his favor but in favor of those claiming under him, although-citizens of a different State. This is a familiar and sound principle of law in its just application, but it can have no force or effect beyond the jurisdiction of the forum in which it is invoked.

It is a principle of the law of prescription, and like that, a part of the lex fori and can have no extra territorial authority. Judge Story in his work on the Conflict of Laws, sec. 582, says : “ It is no answer to say that when once the statute of limitations begins to run, no subsequent impediment stops it from continuing to run. That is true in a nation whose laws contain such provisions or inculcate such a doctrine, but no other nation is bound to give effect to such provisions or to such a doctrine.— They are strictly intra territorial regulations and

interpretations of the lex fori, which other nations are not bound to observe or keep.” Had the plaintiff sued Henshaw in the courts of Alabama as regulated by her laws, he might have availed himself of this principle in those forums if necessary to his defence, “ but it can have no application in the present case, for the plain reason, that those laws can have no obligatory force out of their own jurisdiction.”— Justice Wheeler in Hays vs. Cage, 2 Texas Rep. 507.

It is a maxim, says Judge Story, (in his work above quoted,) of international law that “ whatever force and obligation the laws of one country have in another, depend solely upon the laws and municipal regulations of the latter; that is to say, upon its own proper jurisdiction and polity, and upon its own express or tacit consent.” The only authority given to the statute of limitations of Alabama in our courts, is under the laws of 1833 and 1835, before cited, which it has been shown are inapplicable to this case.

It has been urged that the principle that the statute of limi-A tations only applies to causes of action subsisting within the State, might give rise to stale demands arising in other States. The argument al> inconvenienti is entitled to but little consideration in legal adjudications. We must declare the law as we find it. But we think this very objection was in the view of the legislature, and designed to be remedied by the two acts of the General Assembly last cited, securing the right to defendants to plead the statute of limitations of other States in all cases where it would prove a bar in those States.

Thus at once tacitly admitting that the law was as we state it, and providing a remedy for the further protection of our citizens from stale foreign demands originating without our jurisdiction. “The general principle by civilized nations is, that the nature, validity, and

interpretation of contracts are to be governed by the laws of the country where the contracts are made or are to be performed, but the remedies are to be governed by the laws of the country where the suit is brought, or as it is compendiously expressed by the lex fori” 8 Peter’s S. C. Rep., 361. “We come then to the final question, whether the period of prescription which has partly run under the laws of another State can be united with the time which has elapsed under the laws of our' own State so as to complete a statutory bar. Mr.

Justice Story has fully considered this question in his compendious work on the Conflict of Laws, sec. 582, and concludes that it cannot be done except in cases where the foreign statute does not merely profess to bar the remedy, but goes directly to the extinguishment of the “debt, claim, or right.” Chancellor Kent is equally clear and decisive on the question in Ruggles vs. Keeler, 3 Johns. Rep., 261. In Alexander vs.

Burnet, 5 Richardson’s Law Rep. 189, the Supreme Court of South Carolina have elaborately considered and decided the question in the same way, under circumstances nearly identical with those presented in this case. Town’s Executor vs. Bradwell, 1 Stewart & Porter, Ala. Rep. 36, establishes the same principle. And to the same effect are Gautier vs. Franklin, 1 Texas Rep., 732; Hays vs. Cage, 2 Texas Rep., 501; 1 Caine’s Rep., 102; 7 Mass. Rep., 515; 14 Mass. 203; and 13 Missouri Rep., 160.

Still further authority might be cited, but we deem the foregoing sufficient to establish the principle upon which this case turns. It is consonant with reason and principles of justice, that where one of two'innocent parties must suffer a loss, it should fall upon him who has been most remiss in securing his rights. Such is the result from the application of the rules of law in this case.

No degree of diligence or of caution could have protected the plaintiff against the abduction of his slave, either by kidnapping or by his own volition ; whereas the defendant was put upon his guard by the principles of the common law, eaveat emrptor being the rule. It was his duty to have enquired into the character of the title which he purchased, and if a doubt arose of its validity, to have secured himself by a sufficient warranty from the vendor ; failing in this, he has acted in his o’yn wrong and cannot justly complain of the assertion of the plaintiff’s rights.

Let the judgment of the Circuit Court be affirmed with 'costs.