Ireland v. MacKintosh

• Decision Date: 09 July 1900
• Court: Utah Supreme Court
• Parties: AGNES D. IRELAND, EXECUTRIX OF THE ESTATE OF E. A. IRELAND, DECEASED, APPELLANT, v. RICHARD MACKINTOSH, RESPONDENT

61 P. 901

22 Utah 296

AGNES D. IRELAND, EXECUTRIX OF THE ESTATE OF E. A. IRELAND, DECEASED, APPELLANT, v. RICHARD MACKINTOSH, RESPONDENT

Supreme Court of Utah

July 9, 1900

Appeal from the Third District Court Salt Lake County. Hon. A. N Cherry, Judge.

Action upon a promissory note to which defendant plead the Statute of Limitations. From a judgment for defendant plaintiff appealed.

Affirmed.

Messrs Zane & Rogers, for appellant.

The appellant's position is, that a statute of limitations when applied to a promise or obligation to pay money, acts upon the remedy and does not annul or rescind the promise or obligation to pay; that when the law is repealed before the presumption of payment under the attending circumstances would arise without the statute, the promise or obligation to pay survives and continues subject to the new law or until such presumption arises. On such a promise or obligation the payee, obligee, or assignee may maintain a suit.

There is a plain distinction between a right of action for a debt or a sum of money and an action to recover the possession of real estate or specific personal property. The right of action in the latter case is to recover the possession of property wrongfully in the possession of another. A right to the property arises from the possession for the term specified in the statute--the title is given by the possession. Not so as to promises or obligations to pay debts. The right of action in such cases is not based on the right of possession. Campbell, et al. v. Holt, 115 U.S. 628; Jones v. Jones, 18 Ala. 248; Carpenter v Matrin, 4 W. V. 138.

The provisions of the statute upon which the defendant relies is as follows:

Section 3141, Compiled Laws of Utah, 1888:

"The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows:"

"An action upon any contract, obligation or liability, founded upon an instrument of writing, except those mentioned in the preceding section."

This statute does not purport to affect the promise to pay. It simply interposes a bar to the remedy, and that bar being removed by the repeal of the statute, appellant could employ the proper remedy to recover the debt. Williams v. Jones, 13 East, 439.

Extinction of the remedy does not extinguish the right. The right of action is not barred by the statute of limitations in force at the place of the contract, if it is not barred by the law of the former--the place where the suit is instituted. Hewitt v. Wilcox, 1 Metcalf (Mass.), 154; Wood v. Kennedy, 19 Ind. 68; Welch v. Wadsworth, 30 Conn. 149; Baugher v. Nelson, 9 Gill. 304; Smart v. Baugh, 3 J. J. Marsh, 364; Townsend v. Jemison, 9 How. 407; Andrews v. Russell, 7 Blackford, 474; Wheeler's Appeal, 45 Conn. 306; The People v. Livingston, 6 Wend. 526; Campbell et al. v. Holt, 115 U.S. 625; Carpenter v. Martin, 4 W. V. 138; Jones v. Jones, 18 Ala. 248.

Messrs. Bennett, Harkness, Howat, Sutherland & Van Cott, for respondent.

Under Sec. 3143, 2 C. L. 224, the cause of action was barred in four years, and if there had been no amendments the plaintiff would have nothing to contend for by this appeal. But in 1897 the legislature passed an amendment to section 3143, and some other sections, all of which took effect May 10, 1897. This latter act appears in the Laws of 1897, pp. 264-5. So far as this case is concerned, the only amendment made by the Laws of 1897 to the Laws of 1888 was section 3143, making the period of limitation six years instead of four years, and the appellant contends that the Laws of 1897 operated as an independent statute, and as an absolute repeal of the act of 1888, instead of merely an amendment to the act of 1888. The act of 1897 purports on its face to amend certain sections of the act of 1888, and therefore the amendments are to be read into the original act and to be construed in harmony with its provisions. McKibben v. Lester, 9 Ohio State, 628.

See to the same effect: Endlich on Statutes, Sec. 294; Conrad v. Nalb, 34 Mich. 275.

The amendments did not affect or repeal any of the other sections of the Laws of 1888, and section 3167 of the latter remained in full force and effect, and the amendments were to be read with reference to this section, which is:

"This title does not extend to actions already commenced, nor to cases where the time prescribed in any existing statute for acquiring a right of barring a remedy has fully run, * * *."

The defense of the statute of limitations is recognized by our supreme court as a just and wise provision of law. Kuhn v. Mount, Sec. 13 Utah. 113-114; Board of Education v. Blodgett, Sec. 40 N.E. 1027.

BASKIN, J. BARTCH, C. J., and MINER, J., concur.

OPINION

BASKIN, J.

It appears that on the 2d day of January, 1892, the the respondent executed his promissory note to E. A. Ireland for $ 5275, payable one day after date; that the said Ireland died on the 14th day of May, 1898, and the appellant on the 16th day of July, 1898, was duly appointed executrix of the will of the decedent; that on the 30th day of August following she, as such executrix, instituted this suit to recover of the respondent the amount of said note. The respondent answered that the cause of action set up in the complaint was barred by Sec. 3143 of [61 P. 902] the Code of Civil Procedure, Vol. 2, C. L. U. 1888, p. 224. The period of limitation under this section was four years. The trial court found that the action was barred, and rendered judgment against the appellant, as executrix for the costs.

By an act of the State Legislature, Sess. Laws, 1897, p. 264, Approved March 20, 1897, the aforesaid section was amended in the following manner, to-wit: "Sec. 3148 of the Compiled Laws of Utah, 1888, is hereby amended to read as fellows: * * * An action upon any contract, obligation, or liability founded upon any instrument in writing, except those mentioned in the preceding section, within six years." The exception referred to relates to judgment and decrees. Sec. 3141 of the same act which contains the section so amended provided that "The periods prescribed for the commencement of actions other than the recovery of real property, are as follows: The period relating to promissory notes which followed was that prescribed in section 3143, and was four years after the cause of action had accrued. Sec. 5 of the amendatory act provides that "All acts and parts of acts in conflict herewith are hereby repealed."

Appellant's counsel state in their brief that "The right to sue on the note was barred under Sec. 3143, from January 3, 1896, until March 20, 1897," but contend that said section was, expressly and by necessary implication, repealed by the amendatory act approved March 20, 1897, and that the bar which previously existed was thereby removed, and the right of action on said note was revived. In support of this contention reliance was had mainly upon the decision of the Supreme Court of the United States, in the case of Campbell v. Holt, 115 U.S. 620, 29 L.Ed. 483, 6 S.Ct. 209, in which it was decided that while "It may very well be held that, in an action to recover real or personal property, where the question is as to the removal of the bar of the statute of limitations by a legislative act passed after the bar has become perfect, such act deprives the party of his property without due process of law." Yet no one has property in the bar of the statute as a defense to a promise to pay a debt, and that such a bar may be removed by the repeal of the statute.

Justices Bradley and Harlan in a dissenting opinion held that when the statute of limitations gives a man a defense to an action, and that defense has absolutely arisen, it is a vested right in the place where it has accrued, and is an absolute bar to the action there, and is protected by the Fourteenth Amendment to the Constitution from legislative aggression. While the majority opinion in that case is supported by a few of the state courts, a much greater number sustain the minority opinion. 18 Am. & Eng. Ency. of Law, (1st ed.) 700; 1 Wood on Limitations, Secs. 11 and 12.

The question has not, heretofore, been raised in this court, but in the case of Kuhn v. Mount, 13 Utah 108, 44 P. 1036, this court, in regard to the statute of limitations, said: "In determining the question here presented, due regard must be given to the purpose and object of the statute. The law is wise and beneficial, and its objects ought not to be defeated by interpretation. It is entitled to the same respect as other statutes, and ought to be enforced, not only on the presumption arising from lapse of time, that the debt has been paid, but because it is essentially a statute of repose. It affords protection against ancient demands, whether originally well founded or not, and serves as a warning against the consequences of laches."

In determining the question now under consideration the object, which the statute was passed to attain, should be kept in view, and the construction which will most effectually accomplish the purpose of the statute should be adopted.

The purpose of the statute is the same both in cases involving the title to tangible property, and in cases relating to the enforcement of the obligations of contracts.

The object of the statute is attained by depriving the party having a cause of action, of the right to recover thereon after a prescribed period has expired, and consequentially furnishes the adverse party with a defense to the action. It is clear that unless this defense is a vested, permanent right the statute of limitations cannot be one of repose, because it is by virtue of the permanency of this right that the ends of the statute are accomplished both in cases relating to titles to property and...