McCracken Co. v. Mercantile Trust Co.

• Decision Date: 16 October 1886
• Citation: 84 Ky. 344,1 S.W. 585
• Parties: MCCRACKEN CO. v. MERCANTILE TRUST CO. and another.
• Court: Kentucky Court of Appeals

1 S.W. 585

84 Ky. 344

MCCRACKEN CO. v. MERCANTILE TRUST CO. and another.

Court of Appeals of Kentucky.

October 16, 1886

Appeal from McCracken common pleas court.

L. D Husbands, for appellant, McCracken Co. W. G. Bullitt, for appellees, Mercantile Trust Co. and another.

HOLT J.

The appellee Marcella Laurie was the owner, in 1873 and 1874, of a lot of land in McCracken county, which was assessed for taxation for those years for county purposes. The taxes remaining unpaid, the county collector, on December 17, 1874 sold the property to satisfy the amount owing for 1873; and on March 8, 1875, he again sold it for the taxes of 1874; the county in each instance becoming the purchaser at the price of the taxes due upon it. Subsequently the Mercantile Trust Company purchased the property. On the eighteenth day of February, 1884, the legislature passed an act, the first section of which provides "that in all cases where real estate in McCracken county has been heretofore sold by any collecting officer, or by other proceedings on behalf of said county for taxes due McCracken county, and bought by said county, it shall be lawful for said county in its name to file a petition in equity in the McCracken court of common pleas, or other court of said county that may have civil equitable jurisdiction, against the owner, his heirs, or assigns, or devisees, (as the case may be,) of such real estate so sold, as aforesaid, and bought by said county describing the same with reasonable certainty, and also make defendant to the suit the owner, by purchase, if any, of such real estate, and all mortgagees or other incumbrancers, if any, of said land at the time suit was brought; and it shall be lawful for the county, the plaintiff in the suit, to subject such real estate in rem, by the judgment of the court, and have a sale of such land under the same, for the satisfaction of the amount of the price at which the county may have bid off such real estate at the collecting officer's sale of the same, or under other proceedings with interest thereon at six per cent. per annum from the date of such sale until paid, and all costs of the action, including an attorney's fee of five dollars, which shall be taxed as costs in favor of the plaintiff in the action in every case of recovery. And the county of McCracken is hereby declared to have a continuing and subsisting lien upon the real estate for the satisfaction of the amount of such taxes, interest, and costs aforesaid; and, in the enforcement of the same, as aforesaid, no plea of the statute of limitations shall be interposed thereto other than the statute of fifteen years."

This action was brought by the county on August 5, 1884, to enforce its alleged lien for the sums at which it had bid in the property at the collector's sales, and to sell the same therefor. More than five years had elapsed from the time the taxes were due, and also from the date of the collector's sales, before the purchase by the trust company; also before the passage of the act supra, and before the bringing of this action.

The general law in force during that time provides: "An action upon a liability created by statute, when no other time is fixed by the statute creating the liability, * * * shall be commenced within five years next after the cause of action accrued." Gen. St. c. 71, art. 3, § 2.

The defense of five years' limitation was interposed. The county demurred to it, relying upon the provision in the act of February 18, 1884: "and in the enforcement of the same, as aforesaid, no plea of the statute of limitations shall be interposed thereto other than the statute of fifteen years;" and its validity is now in question; the demurrer having been overruled.

It is clear that, at the time of its passage, the collection of the claim could not have been enforced. The defense to it was perfect. Had the legislature the power to divest this right? The question is res nova in this state. Beyond doubt it may, before a claim is barred under the existing law, extend the time for its enforcement. Upon the other hand, it may shorten it, provided it affords a reasonable time for its assertion. It is urged, however, that time does not pay a debt; that the statute of limitations does not extinguish it, but merely relates to and withholds the remedy; and that, as it is founded upon public policy, it is a matter bounded only by legislative discretion.

It is agreed upon all hands that in cases where, by the lapse of time, a title to property is vested, that it cannot be divested by the legislature. This is not disputed by any authority known to us; but some of them have attempted to draw a distinction between such a case and the enforcement of a mere debt or obligation. Upon the other hand, it has been denied that there is any foundation whatever for a difference. It is true that in the one case the party in possession has been asserting a claim to the property; but in the case of a mere debt the effect of its enforcement, when barred by time, would be to divest the owner of his property; and it seems to us that there is little difference in fact, and none in principle, whether the case relate to a claim to property in specie, or damages for the breach of a contract or the enforcement of a debt merely. A retrospective law which divests a vested right is beyond the constitutional limit of legislative power. If the legal right be gone, the contract is discharged until it is in some legal way reaffirmed; and when the constitutional test is applied by the courts, as is their duty, it must be held that the legislature cannot make a new contract for the parties.

Some confusion has arisen by the failure of writers and jurists in speaking of the obligation of a contract, to distinguish between the legal right and the moral one. Blackstone says "that wherever there is a legal right there is a legal remedy," and "that the want of right and the want of remedy are the same thing." Undoubtedly the legal remedy may be modified or changed without impairing the legal right, if the remedy in the new form be not impaired; but it seems to us that it is illogical to hold that the remedy may be destroyed, and the legal right remain. A legal right is one which is protected by law, and the means of protection is the remedy; and it is not to be supposed that one can have his legal right seized by another, and yet be remediless. The existence of one implies the existence of the...