1877. RAY COUNTY V. VANSYCLE. Company were issued without authority, and void in the hands even of bona fide purchasers for value. Messrs. Wm. S. Everett and F. M. Cockrell, for plaintiff in error. Messrs. Phillips & Vest and John B. Henderson, for defendant in error. Mr. Justice Harlan delivered the opinion of the court: The first inquiry suggested by the facts set forth in the special finding is as to the validity of the agreement of 1868, whereby the County of Ray secured exemption from liability to the North Missouri Railroad Company, on its orig. inal subscription of $200,000, and in virtue of which also the St. Louis and St. Joseph Railroad Company obtained the bonds of the County for that amount. This question must be determined in the light of all that occurred in connection with the efforts made to secure a railroad through that County. It appears that, at the election held in the year 1860, more than two thirds of the votes cast in Ray County were in favor of a subscription of $200,000, to the capital stock of the Missouri River Valley Railroad Company, which proposed to construct a railroad through Ray County. The only condition which the voters imposed as to the use of the subscription was, that the stock subscribed under the authority of that election "should be expended on that part of the Railroad in the County of Ray." In obedience to the popular will, a subscription of $200,000 was made in the year 1860 to the capital stock of that company. When, however, in the year 1864, it transferred all its effects, assets, rights and privileges to the North Missouri Railroad Company, the latter became entitled to the benefit of that subscription and, in satisfaction thereof, to the bonds of Ray County, to the amount of $200,000. Of the validity of that transfer we have no doubt. It was made under the authority of an Act of the General Assembly of Missouri, and with the sanction of the stockholders of the companies interested, including the County of Ray. In the meeting of stockholders called to consider the question of transfer, the County was represented by an agent, designated by the county court, with specific instructions to vote the stock of the County in favor of such transfer. In appointing that agent, with such instructions, the court did not exceed its powers; since, by the terms of the Act of December 5,1859, under the provisions of which the original subscription was made, the court was expressly authorized "to take proper steps to protect the interests" of the County, and also "to appoint an agent to represent the County, to vote for it, and to receive its dividends." It seems, therefore, entirely clear that the North Missouri Railroad Company acquired, prior to the adoption of the Missouri Constitution of 1865, a vested right to demand and receive the bonds of the County in payment of its original subscription. This right was not destroyed or impaired by that Constitution. It has been decided by the Supreme Court of Missouri, that the section of the Constitution of that State relating to municipal subscriptions was "A limitation upon the future power of the Legislature, and was not intended to retroact so as to have any controlling application to laws in existence when the Constitution was adopted." State v. But the North Missouri Railroad Company, We are now asked to declare that the County is under no legal obligation to pay its bonds, issued and put upon the market under the circumstances we have detailed. The fundamental proposition underlying the defense is, that, after the adoption of the Constitution of 1865, no subscription of stock could be lawfully made by the County until after an election; and that, no election having been held at which the people voted specifically in favor of a subscription to the stock of the St. Louis and St. Joseph Railroad Company, the action of the county court was a nullity, creating no liability whatever upon the bonds issued in pursuance of the agreement of 1868. Whatever weight that proposition might have in some cases, it does not meet the precise issues here presented. It ignores altogether the direct connection which existed between the agreement of 1868 and the action taken by the County and its county court prior to the year 1865, whereby the County assumed an obligation to issue its 803 that the bonds had been issued illegally and were void, and upon that ground the order re cited that neither the bonds nor the coupons would be paid by the County. But in March, 1872, that order was rescinded, and the county treasurer directed to proceed with the payment of the interest. It was not until August, 1873, that the county court finally determined to repudiate all obligations to pay the bonds; and under its orders the interest collected for 1873 has been retained. It further appears from the special finding that the North Missouri Railroad Company constructed its western branch from Moberly to Kansas City,running through the Counand twenty-eight miles; that the St. Louis and St. Joseph Railroad Company constructed its road from opposite Lexington through Richmond, locating a depot in Richmond, and continuing to the northwest boundary of said County, a distance of twenty-eight miles; that said road is completed and is now being operated to the City of St. Joseph, Missouri; that on the first named road there are four depots located in Ray County, and on the latter five depots; that the money realized from the sale of the bonds issued was expended in the construction of the St. Louis and St. Joseph Railroad, in the County of Ray, and, in consequence of this arrangement, the County secured the construction and operation, within its limits, of about twenty-four miles of railroad more than would have been built under the previous contract or arrangement with the North Missouri Railroad Company. bonds to the amount of $200,000, in discharge of a completed subscription to the stock of a corporation which came into existence and was fully organized before that constitution went into operation, and which could, notwithstanding the adoption of the new Constitution, compel the County to comply with its contract. It is the case of a transfer by exchange of such stock, in order that the County might obtain the road for which its people had earnestly striven for years, and that it might be discharged from legal obligations from which it could not justly or rightfully escape. It is not the case of an entirely new subscription, made under the Constitution of 1865, in disregard of its provis-ty of Ray for a distance of between twenty-six ions and the general statutes passed in pursu ance thereof. When the arrangement of 1868 was first suggested, the county court saw that the desire of its constituents for the construction of a railroad through that County was not likely to be fulfilled through the agency of, or under the contracts previously made with, the North Missouri Railroad Company. Its members became convinced that the only practicable or cer tain mode to accomplish that end was to make such an arrangement or combination as that made with the new company. As already shown, the county court was given by the stat ute, under which the original subscription was made, the power to "take proper steps to protect the interests of the County;" to which end it was authorized to appoint an agent "to represent the County, to vote for it," etc. In the exercise of this power, the court was necessarily invested with very broad discretion, and it is not an unreasonable construction of the statute to say that, the county court in determining what steps were proper for the protection of the interests of the tax payers, had authority to adopt such measures as prudent men managing the affairs of others ought to have adopted. It evidently regarded the arrangement made in 1868 as essential to the protection of the county's interests, so far as they were involved in the subscription of stock previously made, and the obligations thereby assumed. There is nothing in the record upon which to base any imputation of collusion or bad faith. The action was taken under such circumstances of publicity as to notify the tax payers generally of all that was doing; and we are not prepared to say that the court had not the power to transfer the subscription from the North Missouri Railroad Company to the St. Louis and St. Joseph Railroad Company, and deliver the county bonds to the latter, upon its agreement to build substantially the same road for the construction of which the original subscription was made. But whatever doubt exists upon this point should be resolved in favor of the bona fide holders of the bonds. The tax payers of the County should not, under the peculiar circumstances of this case, be now heard to allege that their agents, invested by statute with the authority and charged with the duty of protecting their interests, had exceeded their powers. The county court levied and collected a tax to pay interest due on the bonds delivered to the St. Louis and St. Joseph Railroad Company for the years 1869, 1870, 1871, 1872 and 1873. The coupons were annually paid for the first four years named. It is true that, at a term of the court held in August, 1871, an order was entered of record, stating But this is not all. In payment of the county subscription and bonds, certificates of stock in the St. Louis and St. Joseph Railroad Company were issued to the County, and are still held by it. They have never been tendered back for cancellation. When the county court declared, in 1873, that the County would pay neither the principal nor the interest due on the bonds, there was no declaration of even its willingness to surrender the certificates of stock. Upon the clearest principles of justice, the taxpayers of Ray County are concluded by the acts of their official agents, and by their own failure, either intentionally or from neglect, to assert, by appropriate proceedings, their legal right, if any they ever had, to prevent the transfer of their original subscription to the company, which, by the construction of its road, gave them greater railroad facilities, and at no greater cost, than they could have obtained under the contracts with the North Missouri Railroad Company. Although this case has many features peculiar to it, the conclusion we have reached is in harmony with settled principles heretofore announced by this court in numerous cases. It seems unnecessary to consider other points suggested in argument, as the views here expressed are sufficient to dispose of the case. Judgment affirmed. I, James H. McKenney, Clerk of the Supreme the foregoing is a true copy of the statement and Court of the United States, do hereby certify that opinion of the court in the case of The County of 1877. PRATT V. PRATT. Ray, Plf.in Err., v. H. D. Vansycle, No. 216, Octo- ton, this 20th day of March, A. D. 1885. Cited-99 U. S., 682; 101 U. S., 203; 105 U. S., 458; 58 DUNDASS T. PRATT, Piff. in Err., v. JOHN PRATT. (See S. C., 6 Otto, 704-712.) Limitations as to ejectment-when begins to run. *1. The Statute of Limitations for the action to recover possession of land is not applicable to the lien of a judgment creditor on the land, though the judgment debtor may sell and convey the land with possession to the party setting up the statute. 2. The Statute does not begin to run in such case, until the land has been sold under the judgment and the purchaser becomes entitled to a deed; because, until then,there is no right of entry or right of action against the defendant in any one. 3. But as soon as the judgment creditor places himself by a sale and purchase of the land in a condition that he can bring suit for the possession, the Statute begins to run against him. 'T'hese propositions are applicable to the Illinois Act of 1835, limiting actions for the recovery of land to seven [No. 208.] years. Decided Apr. 15, 1878. Argued Feb. 6, 1878. The case is stated by the court. The Law of 1835, provides that: "Sec. 11. Section 8 prohibits an action to recover pos session in similar terms. To perfect the bar: 1. The person in possession must actually reside on the lands. 2. He must have an actual title, deducible of record, either in law or equity. 3. This title and actual residence must have concurred and existed together in the same person for seven years. Collins v. Smith, 18 Ill., 160; Jayne v. Gregg, 274. *Head notes by Mr. Justice MILLER. ་་ The court instructed the jury, in view of the This instruction is erroneous, both in law and First. Samuel Roberts and his grantee, Charles L. Roberts, had no connected title, either in law or equity, after the marshal's sale, was overreached and extinguished on that day. July 8, 1863. The title which they acquired Second. A claim of title would not have been adverse until Oct. 8, 1864, the expiration of the fifteen months after the marshal's sale. See, Cook v. Norton, 48 Ill., 27. A claim of title is not sufficient under the law of 1835. Elston v. Kennicott, 46 Ill., 208. But the suit was commenced May 15, 1869, less than five years after the Statute of 1839 could have begun to run. And again; the payment of taxes and the claim of title were not in accord. Third. The defendant in error did not show a contract for purchase, under which he enuide on the lands in controversy. Fourth. The defendant never acquired a title to the same. 46 The decision of Irving v. Brownell, 11 Ill., 402, was overruled by Woodward v. Blanchard, 16 Ill., 425. The reasoning and decision of the court in Woodward v. Blanchard, proceeds upon the ground that the Acts were designed to protect different grades of title, that the Law of 1839 was intended to reach cases not within the purview of the Act of 1835, and while mere color of title would be sufficient under the Act of 1839, something more would be requisite under the Act of 1835." Elston v. Kennicott, 46 Ill., 208. Fifth. He never acquired a title or an equity in pursuance of any contract. which Sixth. All claims and rights, if any, the defendant sets up, were subordinate to our judgment lien, and were transferred to the plaintiff in error, both in law and in equity, July 8, 1863, by the marshal's sale, which related back to the date of the lien, Aug. 4, 1857, if not to that of the judgment. We, therefore, contend that: The marshal's sale overreached and extin guished the deeds from Isaac Speer to Thomas Speer, Thomas Speer to Samuel Roberts and from Samuel Roberts to Charles L. Roberts, and the marshal's deed transferred all the title of Isaac Speer, the judgment debtor, and of his grantees, Thomas Speer, Samuel Roberts and Charles L. Roberts, with all outstanding equities, flowing therefrom to the plaintiff in error. Fell v. Price, 3 Gilm., 186; Rogers v. Brent, 805 5 Gilm., 573; Read, 577,578; Goff v. O'Conner, | self within the language of this section by suf16 Ill., 421; Stephens v. Ins. Co., 43 Ill., 327; ficient proof, so far as actual possession for Mc Call v. Lenox, 9 Serg. & R.,302; McCormick seven years under a connected title in equity v. McMurtrie, 4 Watts, 192; Coulter v. Philips, deducible of record from the United States could 20 Pa., 154; De Haven v. Landell, 31 Pa., 120; do so. And on this proposition alone, the court Massingill v. Downs, 7 How., 760; Cook v. Nor- told the jury to find for the defendant; but this ton, 48 Ill., 20; Bogue v. Williams, 48 Ill., 375; instruction failed to give effect to other evidence Kirk v. Vonberg, 34 Ill., 446; Durham v. Hea- before the jury and undisputed, which, we think, ton, 28 Ill.,274; Bustard v. Morrison, 1 Scam., had an important bearing on the case. 235; Kinney v. Knoebel, 51 Ill., 112; Reichert v. McClure, 23 Ill., 516. Defendant in error might have redeemed. He did not. Rogers v. Brent, 5 Gilm., 573. His claim, therefore, became void. By the express provision of the Statute of 1835, the limitation of seven years could not be gin to run until the defendant in error acquired title; a connected title, deducible of record. This he never acquired. Elston v. Kennicott, 46 Ill., 208; Woodward v. Blanchard, 16 Ill., 425; Irving v. Brownell, 11 Ill., 402. (No counsel appeared for the defendant in error.) Upon an examination of the plaintiff's title, it will be seen that he had no right of entry until February 24, 1865. If the statute began to run against him at that time, it had not run seven years, but only a little over four, when the suit was brought. Nor was there a right of entry, or right of action, in any person against defendant during his entire possession, until the marshal's deed was made to the plaintiff; for the reason that the equitable title under which the defendant held possession was derived from Speer. That is to say, after the judgment of the plaintiff against Speer was rendered and a lien on the land thereby established in favor of the plaintiff, Isaac Speer, the judgment debtor, conveyed the land to Thomas Speer, and Thomas Speer conveyed to Samuel Roberts, and Samuel Mr. Justice Miller delivered the opinion of Roberts to Charles L. Roberts. The defendant the court: Roberts. It is obvious, from this recital, that there was no one who could lawfully enter upon the land in the defendant's possession until the plaintiff's judgment lien had become perfected into a legal title by sale and conveyance. connected his possession with this title, by showThis is an action of ejectment in which plainting a contract of purchase from Charles L. iff in error was plaintiff below. On the trial, he proved title in Isaac Speer in August, 1857, at which time he recovered a judgment against said Speer, under which the land in controversy was sold July 8, 1863, and a deed made to plaintiff, founded on that sale, February 24, 1865. There does not seem to be any question but that this vested in the plaintiff the legal title to the land some four years before the date of the commencement of this action, which was the 15th day of May, 1869. Defendant relied solely on the Statutes of Limitation of seven years as found in the Acts of the Illinois Legislature of 1835 and 1839, p. 674 of the Revised Statutes of 1874. We are not favored with any argument, oral or written, by the defendant in error, and have had to find out for ourselves on what he bases the defense of the court's ruling. Was it the purpose of this statute that the period of limitation should begin against one who had a lien of record on the land, but who was in no condition to make entry or bring suit, and when the person in privity with him, that could otherwise have made entry or brought suit, had parted with that right to the defendant? The very first words of the section describe the person, against whom the Act is directed, as a person having a right of entry. While no such strict construction can be maintained as that this right of entry must be in the same person during the entire seven years that possession is running in favor of the defendant, it seems reaIt does not appear that the defense under the sonable that this period of seven years is not to Act of 1839 was established; but the court in begin when there was no right of entry in any structed the jury that if they believed certain one who could oust the defendant. The prinfacts were proved, which facts had reference to ciple on which the Statute of Limitations is the seven years' possession under the Act of founded, is the laches of the plaintiff in neglect1835, their verdict should be for the defendant.ing to assert his right. If, having the right of The Law of 1835 provides that, "No person entry or the right of action, he fails to exercise who has or may have any right of entry into it within the reasonable time fixed by the statany lands, tenements or hereditaments, of which ute, he shall be forever barred. But this necany person may be possessed by actual residence essarily presupposes the existence of the right thereon, having a connected title in law or eq- of entry or the right to bring suit. There can uity, deducible of record from this State or the be no laches in failing to bring an action, when United States, or from any public officer or oth- no right of action exists. There can be no neger person authorized by the laws of this State lect in asserting a right to the possession of propto sell such lands, for non-payment of taxes, erty held by another, when that other is in the or from any sheriff, marshal, or other person rightful possession. authorized to sell such land on execution, or under any order, judgment, or decree of any court of record, shall make any entry therein, except within seven years from the time of such possession being taken; but, when the possessor shall acquire such title after the time of taking such possession, the limitation shall begin to run from the time of acquiring title." The defendant has, we think, brought him But the possession then rightful may, by the termination of the right under which it is held. or by the creation (in some legal mode) of a superior title, cease to be rightful. The right of possession may, in some of these modes, come into another. It is then that laches begins, if the person who has thus acquired the better right neglects to assert it. And it is then that the principle of the limitation of actions for 1877. PRATT V. PRATT. recovery of the land first applies; and if uninter- | fore, raise the only question there is in this case. It is said that, under the decision of the courts of Illinois, such possession as that of the defendant in the present case is adverse to all the world. There is no doubt but the Supreme Court of Illinois has said this, and that, in a general sense, it is true. The defendant, having purchased the land of the person who had the legal title, does undoubtedly hold adversely to everybody else. He admits no better right in any one. He is no man's tenant. The right by which he holds possession is superior to the right of all others. He asserts this, and he acts on it. His possession is, in this sense, adverse to the whole world. But it is not inconsistent with all this that there exists a lien on the land; a lien which does not interfere with his possession, which cannot disturb it, but which may ripen into a title superior to that under which he holds, but which is yet in privity with it. In the just sense of the term, his posThere can session is not adverse to this lien. be no adversary rights in regard to the possession under the lien, and under the defendant's purchase from the judgment debtor, until the lien is converted into a title conferring the right of possession. The defendant's possession after this is adverse to the title of plaintiff; and then, with the right of entry in plaintiff, the bar of the statute begins to run. The opinion in the case of Martin v. Judd refers to, and cites, with approbation, the opinion of the court in Cook v. Norton, 48 Ill., 20. That case was twice before the Supreme Court of Illinois, and received, as is evident, a very careful consideration. It is reported in 43 Ill., 391, and in 48 Ill., 20. In that case, Ryan was the common source of title. A judgment was recovered against him, August 14, 1845; and a sale No deed was made under this under execution on that judgment was made April 8, 1846. sale until July 1860, more than fourteen years after the sale, though the certificate of sale was filed in the recorder's office when it was made. Ryan conveyed the property, in a few months after the judgment was rendered, to persons under whom the defendants held title and possession. The suit was commenced within the seven years after Cook obtained the sheriff's deed; but as this was fourteen years after the sale, the question raised was when the statute began to run against Cook's title. A few extracts from the learned opinion of Mr. Justice Lawrence will show that the court is in accord with the views we have already expressed. 66 'that the This is a question of the construction of the 'Would any one deny," he asks, Statutes of Illinois; and the case of Martin v. Judd, 81 Ill., 488, is supposed to be in conflict purchaser in possession could protect himself, with what we have here said. But we are un by proper proof, under the Statute of Limita**The able to see any thing in that case to justify such tions, if more than seven years had elapsed from a conclusion. It is true that plaintiff in that the time when the prior purchaser had received case, as in this, asserted title under a judgment, or might have received his deed? * It is true the a sale, and marshal's deed. The defendant as defendant has never acknowledged a lessor, nor serted title under a judgment against the same any title paramount to his own. party, and a sale and conveyance by the sheriff. Statute of Limitations did not begin to run in The judgment under which plaintiff claimed his favor until the expiration of fifteen months was rendered July 14, 1854; sale, September 1, from the sheriff's sale; because until then there The was no outstanding title upon which suit could 1856; and marshal's deed, June 28, 1858. judgment under which defendant claimed was be brought. But upon that day the purchaser rendered March 4, 1858; sale, November 7, 1859; at the sale was at liberty to take out his deed, sheriff's deed, October 14, 1862. The defendant clothe himself with the legal title, and demand The fifteen months here alluded to was relied on the seven years' Statute of Limitation. possession; and from that day the statute began The suit, however, was commenced April 7, to run.' 1873; and the plaintiff had his marshal's deed the time which was allowed after a sale under June 28, 1858, which was fifteen years before he execution for the debtor, or any other judgment brought his action. The plaintiff, therefore, had creditor of the debtor, to redeem the land, by the right of entry and a right of action for fifteen paying the amount for which it sold, with interBut," continued the court, "although years before he brought suit. the sheriff's deed made on that day would have devested the legal title from Clark and vested it in the purchaser, that fact would not have converted Clark into a tenant. From that moment he became a trespasser, and might have been "His possession besued as such." Again, speaking of the defendant Clark, the court says: gan under his deed as a possession hostile to all other persons; and, though the Statute of Limitations did not begin to run until the expiration 807 of fifteen months from the day of the sheriff's During all this time, or at least during the last seven years of it, the defendant had a possession under a title which was in every sense adverse to that of plaintiff. In the case before us, plaintiff sued within five years after his lien became a title. Two of the seven years' possession on which defendant relies was at a time when plaintiff had no title, and consequently no right of action, and while none existed in those from whom he derives title. The case of Martin v. Judd cannot, there est. 66 |