Dee v. Hyland

• Decision Date: 24 August 1883
• Citation: 3 P. 388,3 Utah 308
• Court: Utah Supreme Court
• Parties: DEE v. HYLAND ET AL

3 P. 388

3 Utah 308

DEE v. HYLAND ET AL

Supreme Court of Utah

August 24, 1883

APPEAL from the first district court. The statute of limitations provides that actions "can only be commenced as follows:" "Sec. 16. Within three years; * * * third, an action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property." The opinion states the facts.

Affirmed.

Hoge &amp Jonasson and N. Tanner, jun., for the appellant.

The question is, Can a man be deprived of his property against his consent, and without any fault or negligence on his part? Formerly, when theft was punished by hanging, the thief was hanged, and the property became forfeited to the crown. Thus the owner lost his property and the thief lost his life, and the only party who derived any benefit was the sovereign.

If our law-makers intended to deprive a person of his property in the manner in which this appellant lost his horse, the law is surely unconstitutional, because it makes a man lose his property without due process of law. Such a statute would favor wrong-doers and give them title to honest men's property by prescription. To uphold such a construction would be to pervert every principle maintained by every sage of the law from Grotius and Rutherford down to Kent and later authors. The rule is, that "an obligation rests upon every government to assist the rightful owner of property in securing recovery of that which has been unjustly lost:" 1 Schouler on Pers. Prop. 21, 22, and notes.

But the statute of limitations was not intended to give title to property, except by adverse possession. The word "adverse" implies hostility and antagonism. How can hostility or antagonism arise between persons who never heard of or knew one another? When John Doe sues Richard Roe they become adversaries. But if John Doe filed a complaint in which no defendant was named, the plaintiff could not properly be said to have any adversary in such action.

How could the appellant herein have saved his rights in the premises? Against whom could he have commenced suit before the three years expired? Is it not true there must have been a want of a party defendant if he had commenced such suit within the term of three years? In such a case the statute has always been regarded as not running. This is both reason and authority. It is sufficient to quote the language of the court in Richards v. Maryland Ins. Co., 8 Cranch, 92, where, in speaking of the statute of limitations, it is said: "When cases present themselves in which no laches can be imputed to the plaintiffs, but great injustice would be done by applying to such cases the effect of the statute the conclusion of reason and of the law is that such cases were not in the mind of the legislature when enacting that law. Such are the ases of a want of parties, plaintiff or defendant, whereby a temporary suspension of legal remedy takes place."

"The intention of the possessor to claim adversely, and the knowledge of that intention on the part of the owner, must coincide in order to give title to personal property by adverse possession:" Lawson v. Cunningham, 21 Ga. 454; Angell on Limitations, 324; Ewing v. Burnett, 11 Pet. 53.

In the case of Union M. & M. Co. v. Dangberg, 2 Saw. 454 speaking of adverse possession, it is said: "Evidence which shows that the use of the defendants lacks the essential and indisputable requisite of acquiescence on the part of the plaintiff prevents the presumption from arising."

In the case of Weathers v. Barksdale, 30 Ga. 888, 8 U.S Dig., F, sec. 821, par. 868, it is held that "a claim of title by defendant to property which is in his possession will not amount to a conversion so as to constitute a starting point for the statute of limitations, unless the fact is brought home to the knowledge of the plaintiff." See also 15 La. Ann. 684; 20 Id. 336.

There is no law of market overt in the United States: 10 Pet. 261; Hoffman v. Carow, 22 Wend. 285.

Although there is a conflict of authority in reference to the matter of demand before suit is brought, still, inasmuch as this question comes up in this court for the first time, it is but proper to expect that this court will weigh the reason of the authority in the light of our own peculiar situation.

There is a preponderance of authorities holding that in cases where the party becomes an innocent purchaser of property tortiously taken, he is entitled to demand before suit.

In the case of Alvord v. Davenport, 43 Vt. 30, the supreme court of Vermont held that in such case there is no conversion before demand and refusal. See also Wilkinson et al. v. Verity, L. R., 6 C. P., 206.

The same rule is laid down in New York, Indiana, Iowa, Kentucky, Minnesota, and Illinois: 2 E. D. Smith, 132; 49 N.Y. 259; 5 Sandf. 157; 2 N.Y. 295; 3 Hill (N.Y.), 348; 6 Ind. 455; 17 Id. 94; 4 G. Greene, 24; 7 Bush, 232; 22 Minn. 97; 3 Scam. 579; 13 Ill. 315; Kerr on Fraud and Mistake, 310.

In conclusion, we submit that the principle involved in this case is of great importance. It is of greatest importance to stockmen, taking into consideration the prevalence of horse and cattle stealing, and the facilities which exist for driving off and concealing stock. But we feel confident that this court will not set its hand and seal to a decision which would be regarded as letters patent in favor of wrong-doers, but that this case will be reversed, and that appellant will be awarded his property.

R. K. Williams, for the respondents.

The statute is positive and unconditional; it says: "An action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property," can only be commenced within three years: Comp. L. 366, sec. 1110.

The appellent contends that no right of action accrued to him until he made the demand, and that he could not make the demand sooner, because he did not know where or in whose possession the horse was.

Is this law? Where and who are the parties entitled by law to notice or demand?

Cooley on Torts, p. 452, lays it down that where a party has come into the possession of property lawfully or without fault, demand is generally necessary before suit against him; but he immediately explains what that means, to wit, where he finds it and retains it for the real owner, or where he obtains possession by the consent of the owner, as bailee, etc.; and then in note 6 to page 453, it is laid down that one who receives possession from another who had no right, and treats the property as his own, is not entitled to demand; and so it has been held in Gilmore v. Newton, 9 Allen, 171; and also refers to Trudo v. Anderson, 10 Mich. 357; Prime v. Cobb, 63 Me. 200; Shoemaker v. Simpson, 16 Kan. 43; Wells on Replevin, 198, 206-208; Sargent v. Stevens, 23 Cal. 360.

And Wells says: "Where the defendant sets up a claim to ownership and demands a return of the goods, this claim is inconsistent with any hypothesis that he would surrender them on demand, and will obviate the necessity of proving demand:" Wells on Replevin, 212, sec. 374, and numerous authorities referred to in note 6.

Whilst it may be conceded that there is some conflict of authorities on this question of the necessity of demand, yet the great weight of authorities and the true philosophy of the rule establish that where no title passes to the original wrong-doer, neither he nor those holding under him, however remote, are entitled to demand for the truly legal reason that he and all those setting up his title are tort-feasors, guilty of conversion of plaintiff's property and liable to an action without demand, and that good faith on the part of any is no defense to the action in such a case.

And in this very action the respondents are sued for tortiously taking plaintiff's property, in other words, the action is in the cepit and not in detinet alone; and the respondents defend on this title acquired first by purchase, and then their adverse holding until plaintiff's action has been barred by lapse of time.

The plaintiff's right of action against these respondents accrued instantly on their purchase from Parsons & Cave, and against them on their purchase from Kimball & Richardson.

Respondents had had actual adverse possession of said horse over three years when the action was brought, and when connected with the adverse claim and holding of their...