Hedger v. Rennaker
| Decision Date | 15 December 1860 |
| Citation | 60 Ky. 255 |
| Parties | HEDGER, ETC., v. RENNAKER. |
| Court | Kentucky Court of Appeals |
The act entitled " an act to amend section 2 of article 63 of the Revised Statutes, entitled ‘ limitations of actions and suits,’ " approved February 4, 1858, 1 Sess. Acts, 1857-8, p. 26, does not extend to nor embrace suits and actions which were pending at the time of its passage.
Quere: Is the act of 1857-8, supra, violative of section 37 of article 2 of the constitution of Kentucky?
Where an action for the recovery of real property was commenced prior to the taking effect of the act of 1857-8 supra, upon a cause of action which accrued prior to and existed at the time of the adoption of the Revised Statutes, the limitation prescribed by section 2 of article 1, chapter 63, of the Revised Statutes, does not apply.
Retrospective statutes of limitation have ever been regarded as impolitic and unwise, as they are in general unjust and oppressive. (5 B. Mon. 564.) And although such statutes have been held valid under the constitution, they have always been subjected to such a construction as would circumscribe their operation within the narrowest possible limits, consistent with the manifest intention of the legislature, to be drawn from the language used.
Quere : Is it within the constitutional power of the legislature to take away or impair a right which had been previously asserted by appropriate action in a court of justice having jurisdiction of such cause of action?
Appeal from Harrison circuit court.
W. W. TRIMBLE, for appellants, cited chap. 63, sec. 2, Rev. Stat., p. 458; Act of Feb. 4, 1858, 1 Sess. Acts, 1757-8, p. 26; 5 B. Mon. 570.
A. H. WARD, for appellee.
The heirs of Jonathan Hedger brought this action in October, 1857, against Rennaker, for the recovery of a small tract of land of which the plaintiffs claimed to be the owners.
The defendant in his answer denied that the plaintiffs were the owners of the land in contest, and relied upon a possession of more than twenty years as a bar to the claim of the plaintiffs.
Upon the trial evidence was introduced on both sides, conducing to show the nature and extent of the possession which each of the parties, and those under whom they respectively claimed, had held; and the court, at the instance of the defendant, instructed the jury that if he and those under whom he claimed were in the continuous adverse possession of the land in contest for fifteen years next before the commencement of the suit, they must find for him.
There was a verdict and judgment for the defendant, and the plaintiffs have appealed, insisting upon a reversal on the ground that the court erred in giving the instruction just referred to.
The propriety of this instruction depends upon the construction and effect to be given to the several statutes of limitation.
By section 2 of chapter 63, of the Revised Statutes, vol. 2 p. 123, it is provided, that " an action for the recovery of real property can only be brought within fifteen years after the right to institute it first accrued to the plaintiff, or to the person through whom he claims."
But the first section of the same article declares, that the " provisions of this chapter shall not apply to suits or actions already commenced, nor to cases in which the right of action has accrued, but the laws of limitation now in force shall be applicable to such cases, according to the subject of the action, and without regard to form."
As, then, the right of action in the case under consideration had accrued prior to, and existed at the time of, the adoption of the Revised Statutes, it is clear that the limitation prescribed by the second section would not apply to the case, and unless it shall be found that the provisions of the first section have been totally repealed by subsequent legislation, the instruction in question must be held erroneous.
The only statute relied upon as having this effect is an act approved February 4, 1858, 2 Rev. Stat. 135, which declares, " that the provisions of chapter 63 of the Revised Statutes shall extend to and embrace all cases in which the right of action accrued, whether before or after the Revised Statutes took effect, from and after the first day of August, one thousand eight hundred and fifty-nine."
Before proceeding to determine the construction which this act is to receive, it is proper to suggest the inquiry, whether it is not in conflict with section 37, of article 2 of the constitution, which declares that " no law enacted by the general assembly shall relate to more than one subject, and that shall be expressed in the title."
The act under consideration is entitled, " an act to amend the second section of article sixty-three of the Revised Statutes, entitled ‘ limitation of...
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