Lightfoot v. Davis

• Decision Date: 05 April 1910
• Citation: 91 N.E. 582,198 N.Y. 261
• Parties: LIGHTFOOT v. DAVIS.
• Court: New York Court of Appeals Court of Appeals

198 N.Y. 261

91 N.E. 582

LIGHTFOOT

v.DAVIS.

Court of Appeals of New York.

April 5, 1910.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by William Lightfoot against Fitch M. Davis, administrator of William Bowen, deceased. From an order of the Appellate Division (132 App. Div. 452,116 N. Y. Supp. 904), reversing, on the law alone, a judgment of the Special Term for plaintiff on report of a referee, plaintiff appeals. Reversed.

Fletcher C. Peck, for appellant.

Edwin A. Nash, for respondent.

CULLEN, C. J.

This is a singular case. In March, 1875, and for some years previous, the plaintiff had been the owner of several school bonds issued by various counties in the state of Kansas, aggregating in amount the sum of $4,000. These, together with a memorandum stating the numbers and other details of the bonds, he kept locked in a bureau drawer. At the time mentioned, during the plaintiff's absence, the drawer was broken open, and the bonds abstracted by the defendant's testator, the plaintiff's father-in-law and a banker in the village of Lima in this state. No suspicion seems ever to have attached to the deceased during his life. The plaintiff made every effort to discover the bonds, and who had purloined them. The only record of their numbers was the memorandum taken with the bonds. He was therefore unable to stop their payment or to trace them. He had bought these bonds originally through the deceased, and immediately after their loss gave him notice of that fact. In response the deceased wrote him: ‘I am going to Hamilton Station to-morrow. If you will bring over all the records you have of the lost bonds I will look at them and will try and notify the districts of the loss and stop payment.’ The plaintiff was never able to obtain any further information as to the bonds. They matured within a few years, and the interest as it accrued and the principal was collected by the deceased. Upon his death in 1899 there was found among his papers the memorandum which had been stolen from the plaintiff, and an examination of his books showed that he had collected the bonds. Upon the discovery of these facts the plaintiff brought this suit against the defendant, as administrator with the will annexed of the deceased, praying judgment that the defendant ‘may account and pay over to him the amount of said bonds, and the income thereof if it can be traced, and, if it cannot be traced, that he may have judgment against’ the defendant as administrator for the sum of $16,000. The answer denied any knowledge or belief as to the facts charged, and interposed both the 6 and 10 years' statute of limitations. The referee before whom the case was tried found all the facts as hitherto recited, and awarded judgment to the plaintiff for the principal of said bonds and the interest thereon. The learned Appellate Division reversed the judgment on questions of law alone, leaving undisturbed the facts as found by the referee. It held, on the authority of Allen v. Mille, 17 Wend. 202, and Burt v. Myers, 37 Hun, 277, that the plaintiff's claim was barred by the statute of limitations, despite his ignorance of the fact that the deceased had purloined the bonds.

The principle involved in this case is a farreaching one. During the last 30 years there have been a number of bank robberies where by burglary very large amounts of securities have been stolen, and it has frequently proved impossible to detect the thieves or secure a return of the stolen property, except in some cases by negotiations through ‘fences' or agents of the criminals. These securities are often, if not generally, long-time bonds not maturing until after the expiration of the six-year statutory period for bringing actions for conversion. If it be the law that a thief, by avoiding detection and concealing the stolen property during that period, may acquire title to the property, or secure immunity from suit for its proceeds in case he has sold it, certainly we should call the attention of the Legislature to the defect in the law in order that it might be remedied. In my opinion, however, since the adoption of the Code of Civil Procedure in 1876 the law is in no such unfortunate condition, and appeal for legislative relief is unnecessary.

The first question to be considered is whether the lapse of time would have vested a good title in the defendant's testator had he remained in possession of the bonds until the time of his decease, for if such were the law, it is clear that he did not become liable because, instead of retaining the bonds, he collected the money due thereon. The law is settled in this state that, while the statute of limitations may bar the remedy, it does not cancel or discharge the debt. Hulbert v. Clark, 128 N. Y. 295, 28 N. E. 638,14 L. R. A. 59. This general doctrine is subject to the qualification that the statute may operate to transfer title to property.Thus, in the case of our statutory provisions as to the adverse possession of real property, the statute not only bars the remedy, but confers title on the party who has held the land adversely during the prescribed period. Baker v. Oakwood, 123 N. Y. 16, 25 N. E. 312,10 L. R. A. 387. We have in our state, however, no statute relating to the adverse possession of chattels or personal property, nor do I know of any in any other state. Nevertheless, it seems to be the generally accepted doctrine that by adverse possession title to chattels may be acquired which will be paramount to that of the true owner. Though there are no decisions in our courts on the question, they are numerous in other jurisdictions. Brent v. Chapman, 5 Cranch, 358, 3 L. Ed. 125;Layne v. Norris, 16 Grat. (Va.) 236; Newby v. Blakey, 3 Hen. & Mun. (Va.) 57; Dragoo v. Cooper, 72 Ky. (9 Bush) 629;Carr v. Barnett, 21 Ill. App. 137;Gaillard v. Hudson, 81 Ga. 738, 8 S. E. 534;Connor v. Hawkins, 71 Tex. 582, 9 S. W. 684;Chapin v. Freeland, 142 Mass. 383, 8 N. E. 128,56 Am. St. Rep. 701.

In Campbell v. Holt, 115 U. S. 620, 623, 6 Sup. Ct. 209, 210 (29 L. Ed. 483), in discussing the power of the Legislature to revive an outlawed debt by repeal of the statute of limitations, Judge Miller wrote: ‘Possession has always been a means of acquiring title to property. It was the earliest mode recognized by mankind of the appropriation of anything tangible by one person to his own use, to the exclusion of others, and legislators and publicists have always acknowledged its efficacy in confirming or creating title. The English and American statutes of limitation have in many cases the same effect; and, if there is any conflict in the decisions upon the subject, the weight of authority is in favor of the proposition that, where one has had the peaceable, undisturbed, open possession of real or personal property, with an assertion of his ownership, for the period which, under the law, would bar an action for its recovery by the real owner, the former has acquired a good title-a title superior to that of the latter, whose neglect to avail himself of his legal rights has lost him his title. This doctrine has been repeatedly asserted in this court. Leffingwell v. Warren, 2 Black, 599 ;Croxall v. Shererd, 5 Wall. 268, 289 ;Dickerson v. Colgrove, 100 U. S. 578, 583 ;Bicknell v. Comstock, 113 U. S. 149, 152 [5 Sup. Ct. 399, 28 L. Ed. 962]. It is the doctrine of the English courts, and has often been asserted in the highest courts of the states of the Union.’ This statement is cited in the opinion rendered in Baker v. Oakwood, supra; and, though that case involved only the title to real property, we accepted it as a correct exposition of the law. But none of the cases involved the power of a thief to acquire title by lapse of time where he had concealed the property. Judge Miller speaks of a case where the possession is ‘peaceable, undisturbed, open, * * * with an assertion of his ownership,’ and it is apparent that, if title to personal property may be acquired by possession in analogy to the acquisition of that to real property, that possession must have the qualifications stated. From the earliest period in our state it has been uniformly held that mere possession of real estate, continued however long, will not divest the owner of his property unless the possession is under a claim of title. Otherwise the possession will be presumed to be in subordination to the true legal title. Gansevoort v. Parker, 3 Johns. Cas. 124;Poor v. Horton, 15 Barb. 485;Doherty v. Matsell, 119 N. Y. 646, 23 N. E. 994. The nature of the possession required by the statute necessarily makes it open and public.

In many of the cases cited from other states the fact that the defendant was a purchaser in good faith, and his possession open and public, is emphasized in the opinions of the courts. In Dragoo v. Cooper, supra, it was admitted that the defendants, who were purchasers of the property, acted in good faith. Judge Lindsay said: ‘Dragoo does not acquire title to the horse in controversy by reason of Lewis's purchase from the thief, who could have no title, but by virtue of the possession under claim of title, continuing in himself and Lewis for more than five years before the institution of the action.’ In Newby v. Blakey, supra, the judgment of the court was that the long and peaceable possession of the slaves in question, acquired without force or fraud, gave to Oswald Newby a legal title to them. In Carr v. Barnett, supra, the court said: ‘There was no concealment, fraudulent or otherwise, of his possession and claim, but the facts were unknown to the plaintiff until a short time before the suit was brought.’ In Connor v. Hawkins, supra, it was said: ‘Her [defendant's] possession was adverse, public, and continuous.’ In Gaillard v. Hudson, supra, the court said: ‘The defendant to the possessory warrant, and those under whom he claimed, had been in the peaceable, quiet, and honest possession of this property for more than four years...