Donald v. Hovey

• Decision Date: 03 March 1884
• Citation: 4 S.Ct. 142,28 L.Ed. 269,110 U.S. 619
• Parties: McDONALD v. HOVEY and another
• Court: U.S. Supreme Court

110 U.S. 619

4 S.Ct. 142

28 L.Ed. 269

McDONALD v. HOVEY and another.

March 3, 1884.

Skipwith Wilmer and J. Noble Hayes, for appellant.

Chas. W. Hornor and Geo F. Edmunds, for appellees.

BRADLEY, J.

The decree appealed from in this case was rendered on the seventeenth of April, 1878, and the appeal was not taken until the sixth of September, 1883. The 1008th section of the Revised Statutes declares that 'no judgment, decree, or order of a circuit or district court, in any civil action at law or in equity, shall be reviewed by the supreme court on writ of error or appeal, unless the writ of error is brought or the appeal is taken within two years after the entry of such judgment, decree, or order: provided, that where a party entitled to prosecute a writ of error or to take an appeal is an infant, insane person, or imprisoned, such writ of error may be prosecuted, or such appeal may be taken, within two years after the judgment, decree, or order, exclusive of the term of such disability.' As more than five years elapsed after the entry of the decree in this case before the appeal was taken, of course the appeal was barred by lapse of time unless the appellant was within one of the exceptions contained in the proviso. He claims that he was within one of these exceptions. He states in his petition of appeal, and the fact is not disputed, that being sued in the city of New York upon the decree appealed from, and judgment being rendered against him, his body was taken in execution, and on the seventh of February, 1879, he was thrown into the county jail of New York, where he has ever since remained, and is now kept in close confinement. As only 10 months elapsed after the entry of the decree when the appellant was thrown into prison, and as he has been in prison ever since, he contends that two years, exclusive of the term of his imprisonment, had not expired when his appeal was taken.

This answer cannot avail the appellant if that construction be given to the statute which has almost uniformly been given to similar statutes in England and this country. The construction referred to is that some or one of the disabilities mentioned in the proviso must exist at the time the action accrues in order to prevent the statute from running; and that after it has once commenced to run, no subsequent disability will interrupt it. This was the rule adopted in the exposition of the statute of 21 Jacob, p. 1, c. 16, the English statute of limitations, in force at the time of the first settlement of most of the American colonies. It is provided by the seventh section of that statute 'that if any person entitled to bring any of the personal actions therein mentioned shall be, 'at the time of any such cause of action given or accrued,' within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, such person shall be at liberty to bring the same actions within the times limited by the statute, after his disability has terminated.' Ang. Lim c. 19. It is true that the express words of this statute refer to disabilities existing 'at the time' the cause of action accrues, and do not literally include disabilities arising afterwards. The courts, however, held that such was not only the literal, but the true and sensible, meaning of the act; and that to allow successive disabilities to protract the right to sue would, in many cases, defeat its salutary object, and keep actions alive perhaps for a hundred years or more; that the object of the statute was to put an end to litigation, and to secure peace and repose, which would be greatly interfered with, and ofter wholly subverted, if its operation were to be suspended by every subsequently-accruing disability. A very exhaustive discussion of the subject had arisen in the time of Queen Elizabeth, in the case of Stowel v. Zouch, Plow. 365, in the construction of the statute of fines, passed in 4 Hen. VII. c. 24, which gave five years to persons not parties to the fine to prosecute their right to the land; but if they were women covert, or persons within the age of 21 years, in prison, or out of the realm, or not of whole mind at the time of the fine levied, they were allowed five years to prosecute their claim after the disability should cease. In that case a person having a claim to land died three years after a fine was levied upon it without commmencing any suit, and leaving an infant heir, and it was held that the heir could not claim the benefit of his own infancy, but must commence his suit for the land within five years from the levying of the fine, because the limitation commenced to run against his ancestor, and having once commenced to run, the infancy of the heir did not stop it. The same construction was given, as already stated, to the general statute of limitations of 21 Jacob, 1, supra.

In Doe v. Jones, 4 Term R. 300, Lord KENYON said: 'I confess I never heard it doubted, till the discussion of this case, whether, when any of the statutes of limitations had begun to run, a subsequent disability would stop their running. If the disability would have such an operation on the construction of one of those statutes, it would also on the others. I am very clearly of opinion, on the words of the statute of fines, on the uniform construction of all the statutes of limitation down to the present moment (1791,) and on the generally received opinion of the profession on the subject, that this question ought not now to be disturbed. It would be mischievous to refine, and to make distinctions between the cases of voluntary and involuntary disabilities, [as was attempted in that case;] but in both cases, when the disability is once removed, the time begins to run.' To the same effect are Doe v. Jesson, 6 East, 80, and many cases in this country referred to in Ang. Lim., qua supra, and in Wood, Lim. § 251.

In a case that came to this court from Kentucky, in 1816, Chief Justice MARSHALL said: 'The counsel for the defendants in error have endeavored to maintain this opinion by a construction of the statute of limitations of Kentucky. They contend that after the statute has begun to run it stops, if the title passes to a person under any legal disability, and recommences after such disability shall be removed. This construction, in the opinion of this court, is not justified by the words of the statute. Its language does not vary essentially from the language of the statute of James, the construction of which has been well settled; and it is to be construed as that statute; and all other acts of limitation founded on it have been construed.' Walden v. Gratz's Heirs, 1 Wheat. 296. And in the subsequent case of Mercer's Lessee v. Selden, 1 How. 51, the court took the same view in a case arising in the state of Virginia, in which the right of action accrued to one Jane Page, and infant within the exception of the statute, and it was insisted that her marriage before she was 21 added to her first disability (of infancy) that of coverture. But the court held otherwise, and decided that only the period of infancy, and not that of coverture, could be added to the time allowed her for bringing the action. The same doctrine was held in Eager v. Com. 4 Mass. 182; Fitzhugh v. Anderson, 2 Hen. & M. (Va.) 306; Parsons v. McCracken, 9 Leigh, 495; Demarest v. Wynkoop, 3 Johns. Ch. 129; Bunce v. Wolcott, 2 Conn. 32.

In most of the state statutes of limitation the clauses of exception or provisos in favor of persons laboring under disabilities employ terms equivalent to those used in the English statute, expressly limiting the exception to cases of disability existing when the cause of action accrues. But this is not always the case. The statutes of New York in force prior to the Revised Statutes limited the time for bringing real actions to 25 years after seizin or possession had, and the proviso in favor of persons laboring under disabilities was in these words 'Provided always, that no part of the time during which the plaintiff, or person making avowry or cognizance, shall have been within the age of twenty-one years, insane, feme covert, or imprisoned, shall be taken as part of the said limitation of twenty-five years.' 1 Rev. Laws, 1813, p. 185, § 2; 2 Greenl. Laws, p. 95, § 6. It will be observed that this proviso is stronger in favor of cumulative and subsequently accruing disabilities than that of the act of congress which we are now considering, yet the supreme court of New York, and subsequently this court, gave it the same construction in reference to such disabilities as had always been given to the English statute of fines and statute of limitations. In the case of Bradstreet v. Clarke, 12 Wend. 602, which was a writ of right, and was argued by the most eminent counsel of the state, it was strenuously contended that the proviso referred to, being different from that of the English statutes in not referring to disabilities existing when the cause of action accrued, a different construction ought to be given to it, and the disabilities named, though commencing subsequently, and even after the statute began to run, ought to be held to interrupt it. The court, however, did not concur in this view, but held that the coverture of the demandant occurring after the statute began to run could not be set up against its operation. Mr. Justice SUTHERLAND said: 'It is believed that the same construction has uniformly been given to this proviso in this respect as to that in relation to possessory actions, [contained in a different section of the act,] that, where the statute has once begun to run, a subsequently accruing disability will not impede or suspent it.' Although the case did not finally turn on this point, the attention given to it by counsel and the apparent unanimity of the court, then consisting of SAVAGE, C, J. and SUTHERLAND and NELSON, JJ., give to that opinion a good deal of weight.

The same question afterwards arose in this court in the...