Vassault v. Seitz
Before: Rhodes, Sawyer
Synopsis
Adverse Possession.—A finding that at a certain time the defendant received a deed of a tract of land, and from that time forward continued in the actual exclusive adverse and notorious possession of the land, and had the same protected by a substantial inclosure, is a finding of an adverse possession.
Waiver of Defense of Statute of Limitations.—If the defendant pleads the Statute of Limitations, and the Court finds an adverse possession of five years, the Supreme Court will not presume that the defense of the statute was waived, unless the record shows such waiver.
Defense of Statute of Limitations.—If the Statute of Limitations is pleaded, and the Court finds all the facts necessary to sustain this issue, and gives judgment for the party pleading it, the fact that the prevailing party did not urge the statute in his argument in the Court below, does not preclude him from raising it in the Supreme Court.
Judicial Notice of Pendency of Another Action.—Neither the Supreme Court nor a District Court will take judicial notice that proceedings were pending in the United States Court for the final confirmation of a pueblo title, where the record does not show that fact.
Statute of Limitations as to Mexican Grant.—Where the plaintiff in ejectment claims under a title derived from the Spanish or Mexican Government, and the defendant relies on and shows five years adverse possession, it is incumbent on the plaintiff to prove that proceedings for a final confirmation are pending, or that the title has been finally confirmed within five years before the commencement of the action, in order to defeat the bar of the Statute of Limitations.
Pleading op and Proof of the Proviso to Section Six of Statute of Limitations.—When the Practice Act required a replication to new matter set up in the answer, and the defendant pleaded five years adverse possession, the plaintiff, if he claimed under title derived from the Mexican Government, could not prove that proceedings for a final confirmation were still pending, or that five years had not elapsed since a final confirmation, unless he stated the same in his replication.
Opinion — Rhodes
By the Court, Rhodes, J.: The record in this case is quite voluminous, and very many points are raised, which counsel have argued quite fully, and with more than ordinary industry and ability. There is one point presented by the defendants that is fatal to the plaintiff’s case—the point in relation to the Statute of Limitations. The counsel for the plaintiff earnestly insists that there is nothing in the findings in relation to the Statute of Limitations ; that it was expressly conceded that the premises were within the pueblo limits, and that the statute had no application ; that had the point been urged in argument, the requisite proof would have then been offered by the plaintiff; that the point is raised for the first time in this Court; that this Court will take judicial notice of the fact that the Circuit Court of the United States has, within the last year, established by its decree that the premises are within the limits of the pueblo, and that the plaintiff claimed under an Alcalde grant, which, from its nature, implies that the plaintiff claims under title derived from the Spanish or Mexican Government.
[228]The pleadings are not set out at length, but the substance is stated > and it appears from the abstract that the answer contains, among other things, “ a good and sufficient plea as to all of the defendants of the Statute of Limitations of five years.” We have examined the transcript with much care, but without success, to find anything indicating a waiver of this defense; and we think that if such had been the understanding of both parties, the statement that the defendant pleaded the statute, would not have been found in the record. There are also other matters in the transcript, strongly indicative of an intention to rely on the statute. There is an amendment to the transcript, showing the time of the commencement of the action, that seems to have no bearing on any question except the Statute of Limitations. In the finding, which the plaintiff’s counsel intimates was drawn by the defendants’ counsel, it is stated that in September, 1852, Hinckley conveyed the premises to Seitz, that the deed was in the same month duly recorded, “ from which time forward said Seitz continued in the actual, exclusive, adverse and notorious possession of said lands, claiming to be the owner, and during all such time had said lands protected by a substantial inclosure, and actually occupied the same by himself and tenants, and since A. D. 1865, said lands have been covered with buildings occupied by said Seitz and his tenants.” This is a clear and distinct finding of the adverse possession of the defendant Seitz. And if it does not relate to and have a direct connection with the Statute of Limitations as set up in the answer, we can see no possible purpose it subserves in the action.
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