Grigsby v. Peak

• Decision Date: 30 May 1882
• Docket Number: Case No. 4579.
• Parties: D. B. GRIGSBY ET AL. v. JEFFERSON PEAK.
• Court: Texas Supreme Court

57 Tex. 142

D. B. GRIGSBY ET AL.

v.JEFFERSON PEAK.

Case No. 4579.

Supreme Court of Texas.

May 30, 1882.

APPEAL from Dallas. Tried below before A. Lathrop, special judge.

The opinion states the case.

Richard Morgan and Jeff. Word, Jr., for appellants.

H. H. Field, for appellee.

(Hancock & West and Stemmons & Field filed an able argument in support of their motion for rehearing, which was overruled.)

BONNER, ASSOCIATE JUSTICE.

The court below held--and correctly, as decided by this court during the present term, in a branch of this same case, William Caruth v. D. B. Grigsby-- that the title of appellants and plaintiffs below, Maria Louisa Swindle and Daniel B. Grigsby, was superior to that of appellee and defendant below, Jefferson Peak, unless defeated by the statute of limitations as to appellant Maria Louisa, and by estoppel as to appellant Grigsby. The jury were then charged as to her upon the question of limitations, and as to him upon that of estoppel.

The first and second assigned errors relate to the general charge as given, and to the refusal of the special charge as asked by appellant Maria Louisa, upon the subject of limitation, as follows:

“ First. The court erred in its charge to the jury in this, to wit: The jury were instructed that if the defendant had peaceable adverse possession of the land claimed by him, using, or enjoying the same and paying taxes thereon, if any, and claiming under a deed or deeds duly registered, for a period of five years before the institution of this suit, excluding from said computation the period commencing on the 28th day of January, 1861, and ending March 30, 1870, Maria Louisa Swindle's claim is barred by the statute of limitation. Whereas the law is, and the jury should have been so instructed, that no such possession for a period of less than seven years would bar her claim.

Second. The court erred in refusing the following instructions asked by plaintiff: ‘You are instructed that the statute of limitations did not begin to run against the said plaintiff, Maria Louisa Swindle, until the date of her first marriage on the 24th of August, 1859; and you are further instructed that the statutes of limitation did not run from the 28th day of January, 1861, until the 30th day of March, 1870; and you are further instructed that the statutes of limitation ceased to run when this suit was begun, which was on the 18th day of August, 1874; and you are further instructed that if the time which elapsed from the date of her marriage up to the 28th day of January, 1861, when added to the time which elapsed between the 30th day of March, 1870, and the 18th day of August, 1874, did not amount to seven years, then the plaintiff, Maria Louisa Swindle, is not barred by the statute of limitations.”

The case will be first disposed of as to appellant Maria Louisa Swindle.

Appellee Peak, among other defenses, pleaded that of the statute of limitations of five years, which reads: “He, she or they, who shall have had five years' like peaceable possession of real estate, cultivating, using or enjoying the same, and paying tax thereon, if any, and claiming under a deed or deeds duly registered, shall be held to have full title, precluding all claims, but shall not bar the government; and saving to the person or persons having superior right and cause of action, the duration of disability to sue arising from non-age, coverture or insanity.” Pasch. Dig., art. 4623.

To properly define and understand the real points in issue, it becomes necessary to advert to the dates of the birth and marriage of appellant Maria Louisa, and to refer to some of our statutes and constitutional provisions on the subject of the statute of limitations.

Appellant Maria Louisa was born June 13, 1843. Before she arrived at the age of twenty-one years, August 24, 1859, she was married to her first husband. She was married to her present husband, C. C. Swindle, in 1865 or 1866. The adverse possession of appellee Peak, under deed duly registered, etc., commenced during the minority of appellant Maria Louisa, and consequently the statute did not commence to run until the removal of the disability of infancy, by her first marriage, August 24, 1859. This suit was instituted August 18, 1874. Hence the bar of the statute was complete unless suspended by our several constitutional and statutory provisions. We will briefly refer to those.

On January 13, 1862, the legislature passed an act to suspend the statute of limitations on bills, bonds, promissory notes and all contracts for the payment of money, until the 1st day of January, 1864, or until six months after the close of the present war. Pasch. Dig., art. 4630.

On February 26, 1863, the legislature passed an act, which took effect from passage, to suspend all statutes of limitations on civil rights of action of every kind, whether real or personal, until one year after the close of the war between the Confederate States and the United States. Pasch. Dig., art. 4631. The war closed as to the state of Texas, August 20, 1866. The Protector, 12 Wall., 702. One year from the close of the war would therefore be August 20, 1867. In the meantime, and before the one year from the close of the war had elapsed, ordinance 11, making valid the laws and acts of officers therein mentioned, and for other purposes, appended to the constitution of 1866, was adopted, section 6 of which reads, “In all civil actions, the time between the 2d day of March, 1861, and the 2d day of September, 1866, shall not be computed in the application of any statute of limitations.” Pasch. Dig., p. 950; Id., art. 4631 a.

The validity of such ordinance is expressly recognized by this court in Stewart v. Crosby, 15 Tex., 546; and the binding force of section 6 above quoted was declared in the following cases: Ryan v. Flint, 30 Tex., 382;McClelland v. Slauter, Id., 498;Maloney v. Roberts, 32 Tex., 139;Haddock v. Crocheron, Id., 279;Waters v. Waters, 33 Tex., 50.

By sec. 43, art. 12, constitution of 1869, accepted by congress March 30, 1870, it is provided that “the statutes of limitations of civil suits were suspended by the so-called act of secession of the 28th of January, 1861, and shall be considered as suspended within this state until the acceptance of this constitution by the United States congress.”

By section 14 of the same article, it is provided that … “Married women, infants and insane persons shall not be barred of their rights of property by adverse possession, or law of limitation, of less than seven years from and after the removal of each and all of their respective legal disabilities.”

The constitution of 1869 was superseded by that of 1876.

Under the above state of facts and provisions of the law, two questions are presented by counsel for our decision: First, whether the term of five years, as prescribed in the original statute, or seven years, as provided for in the constitution of 1869, should apply; second, if the bar of the statute was complete under existing laws, prior to the constitution of 1869, so as to vest into appellee Peak a right to the property, whether the constitutional convention had the power, under the constitution of the United States, to divest this by extending the time within which appellants had the right to sue?

I. Whether the period of five or seven years should apply.

It is contended on behalf of appellee Peak that sec. 14, art. 12, Const. 1869, should have a prospective effect, and should apply to those parties only who were married women, infants and insane persons at the date of the acceptance of that constitution by congress, March 30, 1870, or should subsequently labor under such disability, and has no application to appellants who had attained their majority before its acceptance. We are clearly of opinion that sec. 14, art. 12, Const. 1869, was not restricted in its operation to that class of persons who should, at the date of its acceptance or subsequently, labor under the disabilities therein named.

Admitting the full force of the general rule that constitutions should be interpreted prospectively, and not retrospectively, yet the exception is as well established as the general rule, that they may operate retrospectively when it is apparent that such was the intention, provided they do not thereby impair vested rights.

It was the evident policy and express intention of the framers of the constitution of 1869 to give a retroactive effect to the statute of limitations. It was expressly provided by sec. 43, art. 12, that the statutes were suspended from January 28, 1861. Certainly it was not intended by sec. 14 of this same article to withhold the benefit of this suspension from married women, infants and insane persons, classes which have always been exceptions to the general laws of limitation.

The position is equally untenable that this construction of the law is subject to the objection that it would make it a retrospective law, in the sense that it would impair a vested right, if the bar of the statute had not become complete. We are not considering the effect of a statute retrospective in its character, passed under a constitution which prohibited such legislation, but the effect of a constitutional provision itself, in which such retrospective action is made part of the organic law. The power of a subsequent state constitutional convention would, where rights had not already vested, be equal to that of the former one, and would not be restricted by a clause in the previous constitution prohibiting retrospective laws. Besides, it is believed that a more liberal rule should be applied to laws extending the period of limitation when the bar was not complete, than those which restricted this period. It is an elementary principle that the statute of limitations, as a general rule, pertains to the remedy and not to the right, and that no one has any vested right in a particular remedy. All that he can legally demand is that a...