author: Martin Ch. J.:

text:
    John Butler v. Executors of George F. Porter.

      -Tax sale of undivided interest — onus on purchaser to show what it covers, — In a contest between one bolding an undivided interest in land by original title and a purchaser of an undivided interest in the same premises at a tax salo, the burden is upon the latter to show that the interest purchased by him is the same as, or includes, the interest of the former.
    'Thus, in ejectment by one holding an undivided one-third interest in certain premises, by title derived from the United States, against one claiming title under several tax deeds, one of which convevcd an undivided two-thirds, and the others an undivided one-third interest in tho premises \ — Held, That it was for the defendant to show that said tax deeds covered the one-third interest claimed by the plaintiff.

      'Co-tenants — Tax titles, — One who is a tenant in common of property, whether in possession or not, cannot acquire title against his co-tenant by a purchase of the entire premises at a tax sale. — Page v. Webster, 8 Mich., 263.

      Heard October 22, 1864.

      Decided May 13.
    Error to Kent Circuit.
    Ejectment. The case was tried by the Court, without ■ a jury, and judgment rendered for the plaintiff. Defend'ant brought error.
    Tbe finding by tbe Court was as follows:
    ' Tbe land in controversy is tbe undivided third of tbe west half of tbe south-east quarter of section seven, in town six, north of range eleven west. From tbe testimony in this case, I find tbe facts to be:
    AS TO GOVERNMENT TITLE. ‘
    1. The United States conveyed to Henry Whiting tbe west half of tbe south-east quarter of said section, by .patent dated November 4, 1834.
    2. Henry Whiting, and Eliza, bis wife, conveyed . to John Mullett the undivided third part of the west half of the south-east quarter of said section, by deed dated September 24, '1839.
    3. Henry Whiting died in 1851, leaving a widow, Eliza, and two sons, Henry M. and William D., both of age at the time of his death.
    4. Eliza Whiting, Henry M. and William D. Whiting conveyed to George F. Porter the undivided third of the West half of the south-east quarter of said section, by deed dated January 19, 1853.
    5. John Mullett, and Lucy, his wife, conveyed to John Butler the undivided third of the west half of the south-east quarter of said section, by deed dated April 11th, 1853.
    AS TO TAX TITLES, TAX RECEIPTS, ETC.
    1. The Auditor General, by sundry deeds, conveys' to Consider Guild the .undivided one-third of the west half of the south-east quarter of said section for the delinquent taxes of the years 1843, 1844, 1845 and 1846 ;• and - conveys to George H. White and Solomon O. Kings'--, bury the undivided two-thirds of the west half of the. south-east quarter of said section, for the delinquent taxes of the year 1847.
    2. Consider Guild, and Phoebe, his wife, convey to John Butler the undivided one-third of the west half of' the south-east quarter of said section, by quit claim deed dated December 13, 1852 ; and George H. White- and Solomon O. Kingsbury convey to John Butler the-undivided two-thirds of the west half of the south-east quarter of said section, by quit claim deed dated December 14, 1852.
    ,3. The Auditor General conveys to John Butler the undivided one-third of the west half of the south-east quarter of said section, for delinquent tax of 1851, and sold for $4 date of sale, Oct. 3, 1853 ; date of deed, Nov. 17, 1854.

      4. The Auditor General conveys to John Butler the undivided two-thirds of the west half of the south-east quarter of said section, for delinquent tax of 1852. Amount sold for, $3 Date of sale, Oct. 3d, 1853.; date of deed, Nov. 17th, 1854.
    5. George F. Porter paid the taxes upon the undivided oñe-third of the west half of the south-east quarter of said section, for the years 1843, 1844, 1845, 1846 and 1847, to the State Treasurer; and -Consider Guild paid the taxes upon the undivided one-third of the west half of the south-east quarter of said section, for the years 1848, 1849, 1850, 1851 and 1852, to the Township Treasurer.
    At the commencement of this suit, the defendant was n possession of the entire west half of the south-east ■quarter of said section — -claiming- one undivided one-third under his deed from -Mullett, and claiming- remaining un- - divided two-thirds under said tax deeds. But the payment. by the plaintiff of his taxes for the years 1843-4-5-6 and Y, disposed of the defendant’s claims under said tax deeds, except the titles for the years 1851 and 1852.
    These will need examination; and first —
    AS TO THE TAX: TITLE OE 1851.
    The testimony shows that the entire west .half of the south-east quarter of said section was assessed as nonresident to W. Whiting-, and taxed at the sum of $8 T3T6„-. That Guild paid the taxes upon one undivided one-third. That Butler purchased at tax sale one' other undivided one-third, and received tax deed as stated. That the remaining undivided one-third was not sold; why, does not appear. The tax upon it may have been .paid by Mullett, or by Porter, or by Butler himself. In the absence of any testimony upon this point, it may as well be held that Butler’s purchase at the tax sale was but a payment of tbe tax lipón tbe undivided one-third he had recently bought of Mullett, as that his tax deed holds the undivided one-third in controversy. But, aside from this, the testimony shows that the undivided one'-, third which Butler bought was - advertised and sold for $4 -^y, of which amount 70 cents were for charges! and expenses of sale, and 74 cents for interest, leaving $2 as the amount of tax. One-third of the the amount of tax upon the whole eighty, is $2T'I0-!!¡y, being 19 cents less than the amount sold for, (exclusive of interest and charges.) The law only authorizes a sale for -the amount of the tax and the interest and charges, and this sale being for an amount, 19 cents, in excess of the sum legally chargeable uj)on the land, must be • adjudged void. >

    AS TO THE TAX TITLE OE 1852.
    The testimony shows that the entire west half of the south-east quarter of said section was assessed as nonresident to W. Whiting, at the sum of $4 that Guild paid the tax upon one undivided one-third, and that Butler purchased at tax sale, October 3, 1853, the remaining undivided two-thirds, and received tax deed as stated.
    At 'the' time of such purchase, Butler claimed, as before stated by his deed from Guild and wife, tax titles to one undivided one-third of said eighty for the years 1843-4-5 and 6 ; said deed of date December 13, ,1852. • By his deed from White and Kingsbury, tax titles to the undivided two-thirds of said eighty for the year 1847. See deed of date December 14, 1852, and by his deed from Mullett and wife the Government title to one undivided one-third of said eighty; see deed of date April 11, 1853.
    And the case further shows that Butler, in his written statement to his Supervisor for the year 1853, and of date April 12, gave in the • undivided two-thirds of the west half of the south-east quarter of said section; tax title'; and that he subsequently paid the taxes on the entire eighty for the year 1853, to the Township Treasurer.
    In view of the facts as shown, this, deed by the Auditor General to Butler, conveying the undivided two-thirds of the west half of the south-east quarter of said section, on account of sale for delinquent taxes of the year 1852, is adjudged void, on the ground ttíat a tenant in common of lands can acquire no title to the interest of his co-tenant by-bidding on the land at a. sale for delinquent taxes.

      John T Holmes and Geo. V. H. Jothrop, for plaintiff in. error:
    .1. For the years 1843 to ÍSIÍ the plaintiff in error-had tax deeds. But it appeared, as found by the Court,, that George F. Porter, had paid the taxes for those-years.- He was not the owner of the land. So far as. appears, he paid as a mere volunteer. It is, therefore,, submitted- that such payment could not be claimed as a. defence to the tax title.
    2. The tax title for tax of 1852 was held invalid, on. the ground that -a tenant in common cannot .in this way acquire the interest of his co-tenants.
    It is confidently submitted that this is ei-roneous.
    It is conceded that one in possession of land, enjoying its fruits, cannot acquire a valid tax title for taxes falling due while he was in possession, because it was his duty to pay such taxes. — Tweed v. Metcalf, 4 Mich., 578; Page v. Webster, 8 Mich., 263.
    But Butler did not become a co-tenant till April, 1853.
    The tax of 1852 became a lien on the land in November, 1852, and had been returned to the Auditor General’s office as a delinquent tax, before he became such co-tenant. Nor was he in possession of the land when it was sold for this delinquent tax, in October, 1853. The case shows that he was only found 'to be in possession at the commencement of the suit, when he had entered under all his titles.
    Now, a co-tenant, unless in exclusive possession, is not bound to pay his co-tenant’s taxes.
    The only unity of right is right of possession.’ The title interests of the parties are perfectly distinct. Each may sell, mortgage or demise his undivided interest wholly irrespective of the other. They must even sue separately for all matters respecting the land, except for injuries to the possession. These rules are elementary. — 1 Washburne on Real Prop., 416.

      As to the rights of title, they stand as strangers to each other. A co-tenant, as such merely, is no more bound to pay the other’s taxes than he is his neighbor’s. He may as well buy that co-tenant’s-title at a tax sale as at a sheriff’s sale, or by a private bargain.

      T. M. Cooley and Batt & McKee, for defendant in error:
    1. The Titles of 1843-4-5-6 and 7. — Plaintiff proves-that he paid the taxes on one undivided one-third to the' State Treasurer for each of these years. As he paid these in his own name, it is a fair presumption that he paid them in his own right, although his title does not appear to have been perfected by deed until 1853. Certainly there can be no presumption that it was this interest,, rather than either of the others, that was sold for that year. The tax deed may be prima facie ■ evidence of a valid sale, -but it cannot possibly identify the interest sold, when the description is equally applicable to two others. And in defending against a tax title, there is no burden of proof resting upon the adverse claimant, except what the statute expressly imposes.

      2. The Title for 1851. — For this year, it appears that the whole land was assessed as non-resident to William Whiting-; that Guild paid the taxes upon one undivided one-third, and that another undivided one-third was sold to defendant. The other was not sold; why, does not appear. As the Circuit Judge says in his finding, it may have been paid by Mullett, or by plaintiff. We have no means of determining from this record whose one-third of the land was sold, and' I am aware of no principle which will allow of a presumption that it was plaintiff’s interest rather than defendant’s. There is some ground for presuming the contrary; and that defendant’s purchase was made to protect his land against the lien which existed upon it when he bought of Mullett. -
    Moreover, it appears from the testimony that this sale was made for 19 cents more than was legally chargeable. The sale is therefore void. — Kemper v. McClelland, 19 O., 324; Joyner v. School District, 3 Cush., 567; Doe v. McQuilkin, 8 Blackf., 335, 581; Huse v. Merriam, 2 Greenl., 375; Colman v. Anderson, 10 Mass., 115; Elwell v. Shaw, 1 Greenl., 339; Torrey v. Millbury, 21 Pick., 70; Bangs v. Snow, 1 Mass., 188; Drew v. Davis, 10 Vt., 506; Thurston v. Little, 8 Mass., 429; Dillingham v. Snow, 5 Mass., 547; Stetson v. Kempton, 13 Mass., 283; Libby v. Burnham, 15 Mass., 144; Hayden v. Foster, 13 Pick., 492; Alvord v. Collin, 20 Pick., 418.
    3. The Title for 1852. — The sale for the taxes of 1852 was made October 3, 1853. Defendant, under his conveyances from Mullett, had been the unquestioned owner of one undivided third from the preceding April. He could not, therefore, become the purchaser of ’ the interest of his co-tenant. — Page v. Webster, 8 Mich., 263.
    But defendant’s .title dates back of the Mullett deed. Guild. had become the owner of one undivided third by his tax deeds, and this he conveyed to defendant, December 13, 1852, before the tax of 1852 had been returned. White and Kingsbury conveyed to him the next day. Either defendant, therefore, or those through whom he claims, were joint tenants with plaintiff and his grantors Vhen this tax accrued, when it was returned, and when the sale was made.
    It is,, perhaps, questionable whether the - Auditor General was correct in making sale for the taxes of 1852 in October, 1853. Before the tax law of 1853, a sale for taxes could not be made until one year from the October succeeding their return. The law of 1853 altered this by directing the sale to be made the October following the' return. The effect of this was to allow one. year less time for payment of the taxes; and if this provision is to be applied to the tax of 1852, which had already been returned to the office of the County Treasurer, an effect is given to the law which is, in some respects, retrospective. I do not dispute -that the Legislature has power to do this; but a statute is not to be construed so as to give it a retrospective effect, unless the terms employed plainly require it. — Dash v. Van Kleeck, 7 Johns., 477; Johnson v. Burrell, 2 Hill, 238; Bailey v. Mayor, etc., 7 Hill, 146; People v. Carnal, 2 Seld., 463; Lawrence v. Miller, 2 Comst., 245; Boyd v. Barrenger, 23 Miss., 270; Garrett v, Beaumont, 24 Miss., 377; Murray v. Gibson, 15 How., 421; Plumb v. Sawyer, 21 Conn., 351; Moon v. Durden, 2 Exch., 22.
    Li view of these authorities, I submit whether the provisions of the law of 1853 directing a sale in the 'October succeeding the return of the tax, should not be construed as applying only to the taxes assessed under that law. — See Comp! D., § 859. If so, the Auditor General was a year too soon in making the sale for the taxes of 1852.
   Martin Ch. J.:

We find no error in the rulings and finding of the Circuit Judge. The plaintiff and defendant are tenants in common of the land. The title under which the plaintiff in error sought to maintain this action was. acquired through tax sales. The facts of the case, as exhibited by the bill of exceptions, do not show that although an undivided interest in the land was sold fora series of years, yet that the on'e-third interest of the. defendant was ever sold, or that he was ever in default of payments of the amount for which he was liable, up. to the year 1852. I think the inference is in his favor, as the taxes for one-third had been regularly paid up to the year 1852. How, then, as the counsel for the defendant in error suggests, can we identify the particular interest sold for delinquent taxes for prior years, to the. prejudice of either party? The finding of the Circuit Judge clearly and sufficiently illustrates these facts.

As to the taxes of 1852 — Porter and Butler then being tenants in common, neither, by the payment of taxes nor purchasing in at a tax sale a common title, could ;divest the other of his property. He could only acquire a right of action for the aliquot proportion of' the money paid upon the interest of the co-tenant.— See Page v. Webster, 8 Mich., 263.

Judgment is affirmed, with costs.

Christiancy J.:

The payment by Porter of the taxes of 1843, 1844,. 1845, 1846 and 1847, on the undivided third of the land, though made by him before he acquired- his title, and though it does not affirmatively appear upon whose interest it was paid, was a good payment on one undivided third of the land, and only the balance could be sold for the taxes of those years; and as Porten showed, a good title, derived from the United States, which vested in him January 19th, 1858, it was incumbent on the defendant, Butler, if he would defeat the plaintiff’s title by the tax deeds for those years for the other' one-third or two-thirds, to identify the interest he had acquired by those deeds, and to show that the undivided' interest claimed by him under those deeds included the third owned by the plaintiff. Until this should be done, it must remain entirely uncertain what or whose particular undivided -interest the defendant had •acquired by his tax deeds. This the defendant, failed to do, and, therefore, failed to establish any title in himself for those years.

As to the taxes of 1851, it appears by the finding that the entire lot was assessed to one Whiting as nonresident ; that the taxes were paid on one undivided third by Guild, (from whom defendant had, in December, 1852, purchased his tax title of one-third for the years 1848, 1844,-1845 and 1846); that defendant, Butler, purchased one-third for the taxes of this year, at the tax sale made October 3d, 1853, at which time he was the owner of one-third, by title derived from the United States, and which became vested in him April llth, 1853, and that the remaining one-third was not sold for the taxes of 1851 — for what reason does not appear, though the natural inference would' be that it must have been paid. We entirely agree with the Circuit Judge, that the tax on the one-third not sold may have been paid -either by defendant, Butler, or by Porter, (who had owned one-third from January, 1853). In the absence ■of all testimony, we cannot say by which it had been paid, or was most likely to have been paid. But before Butler could defeat Porter’s title by the deed for the unpaid taxes of the year, it was incumbent on him to show that the third delinquent for taxes, and sold for such delinquency, was not his own, or, in other words. that it Avas Porter’s _ third. This he could, easily have done, if true, by showing that his own third had been paid. Until he should do this, he left it quite as probable, upon the evidence, that the third sold Avas his oavu as that it Avas Porter’s.

' As to the taxes of 1852, it appears by the finding that the entire lot was assessed as non-resident to one Whiting; that Guild paid the tax on one-third, (he having held the tax titles, as above stated, subsequently conveyed to Butler,) and that the remaining two-thirds were purchased by Butler at the tax sale of October, 1853, for Avhich he received his deed in November, 1854. At the time of this purchase by Butler of the two-thirds, he claimed and owned one undivided third of the land, by- title derived from the United States, and also claimed title to one-third by deeds for taxes of 1843 to 1846 inclusive, by purchase from Gxrild, and to two-thirds by deed for taxes of 1847. But, to say nothing of the tax titles, he had a good. title to one undivided third of the lot; and the tax on one-third having been paid by Guild, it is evident his tax purchase of the two-thirds for the taxes of this year 1852 must have included his own one-third, for the non-payment of the tax upon which, he Avas himself .in default to the State. This brings this sale precisely within the letter and spirit of the rale laid down by this - Court in Page v. Webster, 8 Mich., 263. As owner of the one-third, it was his duty to have paid his portion of the tax before sale. It is insisted by the counsel for plaintiff in .error, (defendant below,) that this duty is only imposed by possession. This is not the ground of the decision in Page v. Webster. The duty springs from the ownership. The sale is an entire thing based upon the delinquency in the payment of the taxes for which the sale is made, and the purchaser cannot be allowed to acquire the title of others in the property by a sale based, in part, upon his own default. We are entirely satisfied with the principle of that decision, and see no, reason for departing from it.

The judgment must be affirmed, with costs.

Campbell J. concurred.

Cooley J. did not sit in this case, having been of counsel.


source: Caselaw Access Project

author: Campbell J.:

license: Public Domain

text:
    Caleb Van Husan v. John Kanouse and Others.

      Compound interest. — The non-payment of an installment of interest when due-does not convert it into principal, nor entitle the creditor, without an agreement of the parties, to collect interest upon it.

      Lien of mortgage discharged by tender. — "Where the mortgagee of lands, after the mortgage becomes due, and before foreclosure, tenders to the holder the whole amount due, which the latter refuses to receive, the lien of the mortgage is thereby discharged. — Caruthers v. Humphrey, 12 Mich270.
    And in case of an attempt to foreclose such mortgage afterwards, it is not necessary that the mortgagee should keep the tender good by a payment of the money into Court.

      The legal tender act. — Congress had full power to pass the act making treasury notes a legal tender in payment of private debts.

      Heard May 9.

      Decided May 13.
    Appeal in Chancery from Washtenaw Circuit.
    By tbe decree of the Court below, thé bill of complaint was dismissed.
    The facts are stated in tbe opinion.

      Win. A. Moore, for complainant:
    In cases where it is expressly stipulated that interest shall- be payable at certain fixed times, it has been held that interest may be charged on interest from the time appointed for its payment; that the same, in fact, becomes principal.— Gibbs v. Chisolm, 2 N. & McC., 38; Singleton v. Lewis, 2 Hill, (S. C.,) 106, 408; Doig v. Barkley, 3 Rich., (S. C.,) 125; Pierce v. Rowe, 1 N.

      H., 179; 1 John. R., 137; O'Neall v. Bookman, 9 Rich. L., 80; O'Neall v. Sims, 1 Strobh., 115; Eaton v. Bell, 7 Eng. C. L., 13; De Bruhl v. Neuffer, 1 Strobh., 426; Wright v. Eaves, 10 Rich. Eq., 582; Farwell v. Sturdivant, 37 Me., 308; Bainbridge & Co. v. Wilcocks, Bald. C. C., 541; Camp v. Bates, 11 Conn. R., 488; Mowry v. Bishop, 5 Paige, 98; Fobes v. Cantfield, 3 Ham., 17; Pindall's Ex.'s v. Bank of Marietta, 10 Leigh, 481, 484; Pawling v. Pawling, 4 Yeates, 220; Cheek v. Waldrum, 25 Ala., 152.
    Again: The interest, by the terms of the covenant, •is made payable at the end of each year, and is as much demandable as if a specific sum equal to the amount of interest had been promised, and in default of payment, as much entitles the plaintiff to demand interest '■upon the amount so due and unpaid.
    The fact that the amount so promised to be paid is described as interest accruing upon a larger sum, which is made payable at a future time, cannot the less entitle the plaintiff to demand interest upon the amount in default of payment, as a just remuneration in damages for the detention or non-payment. — Talliaferro v. King, 9 Dana, 331; Pawling v. Pawling, 4 Yeates, 220.
    Interest on rents in arrear, ground rent, etc., is "usually allowed, and these installments of interest are analagous. — Naglee v. Ingersoll, 7 Penn., 185; McQuesney v. Hiester, 33 Penn., 435; Guthrie v. Stockton, 5 Harr., 123; Elkin v. Moore, 6 B. Monroe, 462.
    Gold and silvet coin constitute the only legal tender in the United States, and an act of Congress making treasury notes legal tender is unconstitutional and void.
    Although a tender be sufficient, yet the defendant loses the benefit of the tender, unless he pay the money into Court at the time of filing his answer. — Livingston v. Harrison, 2 E. D. Smith, 197; Freeman v. Fleming, 5 Iowa, 460-3; Mason v. Croom, 24 Geo., 211; Brock

      v. Jones, 16 Texas, 461; Clark v. Mullenix, 11 Ind., 532; Jarboe v. McAtee, 7 B. Monroe, 219; Brown v. Ferguson, 2 Den., 196; Cullen, v. Green, 5 Harr., 17; De Wolf v. Long, 7 Ill., 679; Foote v. Palmer, Wright’s R., 336; Wing v. Hurlburt, 15 Vt., 607.

      Joslin <& Blodgett, for defendants:
    An agreement to pay compound interest must be iu writing, and it must be upon additional consideration.— 6 John. Ch. R., 313; Wilcox v. Howland, 23 Pick., 167; Milliken v. Southgate, 26 Me., 424; Dunbar v. Woodcock, 10 Leigh, 628; Pindall v. Bank of Marietta, 10 Leigh, 481; Childers v. Deane, 4 Rand., 406; Mowry v. Bishop, 5 Paige, 98; Ferry v. Ferry, 2 Cush., 92.
    • The mode of computing interest on long bond is well settled. — See Dean v. Williams, 17 Mass., 417; Fay v. Bradley, 1 Pick., 194; Doe v. Warren, 1 Greenlf., 48; Story on Contracts, §596, §1033.
    The complainant’s authorities on the computation are ■exceptions to the American rule, unless when the suit is for the interest, in which case some of the States have allowed interest upon the interest due.
   Campbell J.:

The bill in this case was filed to foreclose a mortgage, payable in three annual installments, with annual interest. 'The defence set up was a- tender in treasury notes of the United States, declared to be a legal tender by act of Congress. The amount tendered was conceded to be sufficient, unless each installment of annual interest, as it became due, was turned into principal.

Some evidence was introduced' for the purpose of showing an agreement to compound interest upon that basis, but we are satisfied no such agreement appears. The only questions, therefore, which we are called upon to decide are — first, whether the law implies any agreement to compound in the manner referred to; and, second, whether the treasury notes offered are a legal tender in payment of private debts.

The authorities upon the subject of allowing annual or other periodical interest to be converted into principal were very fully referred to upon the argument. It was not disputed that the weight of authority is against any such legal implication, in the absence of an express agreement for such conversion; but it was claimed that there were legal analogies which would justify it. That there are many cases where the rule of damages is quite similar to the rule here contended for, we are very well assured; but, as remarked by Shaw Ch. J., (in Ferry v. Ferry, 2 Cush. R., 92,) “it is a iDrojDosition to be taken with its well established qualifications, as well settled as the rule itself.” The general understanding and practice in our Courts has followed the prevailing current of authority, in allowing no n'ew principal to be struck uj>on securities, until the payments made exceed the amount of simple interest which has accrued, and upon which all moneys received will be first applied. The arguments based upon the change of public sentiment concerning usury laws, cannot be considered by a judicial body. Our legislation has gone far in modifying the ancient system. But we cannot properly allow our individual sentiments to keep us either behind 'or before the legislative action on this subject. As the law stands, we do not regard it as sanctioning any implication that interest may become principal without a clear agreement. We are not called upon in the present case to decide when or how such an agreement is to be made, in order that Courts may enforce it. We think the amount tendered was sufficient; and if made in a proper medium, such a tender discharged the lien of the mortgage entirely, so that no bill could be filed to enforce it; and, therefore, it became immaterial whether the tender was kept good or not. That question could only become important in an action at law upon the debt. This rule was settled in Caruthers v. Humphrey, 12 Mich. R., 270.

We are, therefore, called upon to determine whether the law making the treasury notes in question a legal tender in payment of debts is within the constitutional power of Congress.

This question having been answered in the. affirmative by most of those Courts which have been required to decide it, (including, among others, the Court of Appeals of'New York,) we should not deem it necessary to reconsider it, were it not a question of public importance, affecting the. public credit and general welfare of the United States. The point being insisted on upon the argument, we can only perform our duty by indicating our opinion, and the ground of it, as briefly as the mature of the case will permit.

The reasons for doubting the validity of the law under which this paper ‘ was issued, are found in a denial' of power in Congress to authorize the emission of any bills of credit at all, and the denial of the right to make anything a legal tender but gold and silver. The power to issue bills of credit has not been expressly given, and it is claimed such power should be expressed. It is also urged the power was designedly denied, upon full deliberation, by the convention which framed the constitution. These reasons are asserted as precluding any well-founded doubt, upon the issue.

We do not deem it necessary to examine the question of express power. It certainly is not to be found in the constitution. We are only concerned to see whether, in the absence of any prohibition, the power is or is not fairly deducible -from those provisions which declare the duties and authority designed to be vested in the general Government.

Reference has- been frequently made, in the discussions on this subject, to the fact that the draft of the const!» tution contained a clause authorizing Congress “to borrow money and emit bills on the credit of the United States,” and that the words “ and emit bills ” were stricken out. From an examination of the very meagre sketch of the ■debate on the motion to strike it out, it is evident that members did not agree concerning the effect of such 'action. .Some regarded it as amounting to prohibition; 'some as leaving the power by implication, • unless directly prohibited. It is evident that some desired to leave it out, so that it might not be suggested to Congress as a power to be exercised on ordinary occasions. Out of the many.members of the convention, very few are remorded as having hinted at their views. Such action, if made public, would throw no light whatever upon the real design of the convention. But Courts are not at liberty to draw light from the secret debates of any legislative assembly. The intention of the convention, if it could be got at, is not so important as that of the people, who ratified the constitution. They acted upon the written instrument, in the light of' j>assing events, and their intention must be derived from a fair intez-pretation of its contents. We have no evidence that the .giving or withholding the power to issue bills of credit 'formed any part of the questions publicly discussed before the people. The “Federalist” is silent upon the subject, while it speaks very plainly of the propriety of forbidding the emission of bills, or the interference with currency, by the separate States. There is no reason to believe that the matter was called to the public attention. The constitution was thoroughly discussed, and accepted as a 'scheme chiefly designed to remove from the conflicting interests and action of the several States such matters as could not be safely left to local authority; and to give , to the Union power to enforce such measures as were of general concern, so as to make their operation Uniform throughout the whole country. Those matters ■which, it commits to the care of the "Union are reférred to in the most general terms, as was necessary where men had not the power to see into' fiiturity, and anticipate all the new means and inventions which might become desirable to carry out public plans, or the changed circumstances which might create new necessities. It has always been held by the Courts that,, while the power of Congress is not to extend beyond the subjects designated by. the- constitution, yet, where given at all, it is complete and comprehensive.

The power to borrow money is a power which would have existed without any express grant of authority; and the only occasion for expressing it seems to have been to more effectually secure it from the hostile legislation of the States, and prevent, them from destroying or injuring the public credit, by imposing burdensome taxes, upon the' Government securities. — Story on the Constitution, §1051; Weston v. City Council of Charleston, 2 Pet. R., 449. That the Government may issue securities is not only expressed in the constitution, but is a natural inference from the power to contract debts. And to lay down a rhle that Congress may issue one hind of evidence of indebtedness, but may not prefer and resort to another, is to assume a distinction which is nowhere to be found in the constitution. Unless that instrument limits them in their choice, it remains unlimited. Their discretion must be exercised according to them own views of propriety. No other department of Government has a right to criticise or restrain it.

The fact that the constitution has restrained the States from issuing bills of credit, and has not prohibited Congress from doing so, might, of itself, be conclusive, in a ease of doubt, as showing that the subject had not escaped attention. It is very well known that difficulties had arisen in regard, to State bills of credit, different from .any that attached to Government paper generally. The legal tender bills of one State were more depreciated than 'those of another, and much discord arose from the differences. The necessities and low credit of the Confederation were largely due. to its want of any of the powers of a Government. Its issues were all made by the authority of the States, which failed to enable it to protect them. And it may very fairly be presumed that, while single States might be easily led into acts of •doubtful financial policy, it can hardly have been supposed possible that a Government representing the whole country would resort to extensive borrowing, on small Negotiable securities, except upon some uncommon emergency. That such emergencies might arise, was foreseen in the convention, as the’ debates show; and, had it been deemed proper to tie up the hands of the new Government, it is not reasonable to believe that it would not have been done expressly. But, be this as it may, we are unable to find anything in the constitution which will justify us in saying that Congress may issue one class of securities, but cannot issue another.

The practical construction of the constitution has been in accordance with these views. Treasury notes have been resorted to on many occasions, when the ordinary resources of the Government have not been adequate to the emergency. During the war of 1812, they were issued very extensively, and made a legal tender in payment of dues to the Government. In Thorndike v. The United States, 2 Mason's R., 1, Judge Story sustained a plea of such a tender. The practice has been so uniform and so continuous, that it might be fairly considered, in a case of more doubt than we conceive this to be, upon the question of construction.

We are satisfied that the United States are not prohibited from issuing bills of credit. Whether they can be made a legal tender, depends upon other principles. It has been held by the Supreme Court of the United States that a note need not be a legal tender in order to come within the denomination of a bill of credit.— Craig v. Missouri, 4 Pet., 447. It has also been held that even a State may contract that negotiable paper — not being bills of credit — shall be a legal tender in payment of debts due to the State. — Woodruff v. Trapnall, 10 How. R., 190. But a State cannot authorize debts to be so discharged, unless due to it in its own right.— Paup v. Drew, 10 How. R., 218; Trigg v. Drew, 10 How. R., 224.

The present rebellion is the first occasion when it has been deemed necessary to make the treasury notes of the United States a legal tender in payment of debts due to private persons. The increased exigencies of . business, enlarged and changed by the war, have required, in the opinion of Congress, a larger amount of currency of uniform value than could be obtained in specie, or was attainable safely in private or corporation bills. And it was suggested, on the argument, on behalf of complainant, that the justification of the legality of such paper has been rested upon the necessities of war, and cannot be maintained upon that basis. , .

There are many things, no doubt, which can only be done, either by Congress or the executive departments, during war, or with a view to it, simply because they have no relation or fitness to any other state of things. The powers are not new powers created by the war, but are existing powers called into exercise by it. There are other powers which may be exercised whenever a necessity is supposed to exist, while such necessity is rarely created except by war. If Congress has power to make these notes a legal tender, the power must be ■exercised in the discretion of Congress.' It has so happened that the largest emissions of Government paper have been made during war. But we do not understand that the existence or non-existence of war can have any bearing upon the legality of this paper. If the power exists to issue it, the necessity must be determined by Congress, and no Court can revise their action. They are' chosen to provide for the public necessities, according to their own good judgment. If they act within the constitution, their policy is the ■policy of the nation, and their laws are the laws of the land.

In seeking to determine what powers are vested in the United States concerning the regulation of what shall be a legal tender, we must consider the necessity of any system of legal tenders at all, and how, if at a 12, it arises. It has generally been supposed that Congress could make some things, at least, available to that end. That there.is no express power in Congress to declare anything a legal' tender, is evident. That the constitution does not directly declare anything a legal tender is equally plain,, and it can hardly be maintained that anything is made such by implication. As it has been sometimes claimed that the constitution -expressly makes gold and silver coin a legal tender, it will be proper to quote all that is said on the subject. The only reference to gold and silver coin is in the shape of a prohibition on the States. “No States-shall * * coin money, emit -bills of credit,, or make anything but gold and silver coin a tender in payment of debts,” etc.

This is not an enabling clause. The States are prevented by it from creating either metal or paper money, and if they establish tender laws, it- must be for coin, the value of which is regulated by Congress. The prohibition, as we learn, from contemporaneous authority, was-aimed as much at laws which enabled debtors to satisfy their creditors by property at an appraisal, as at any other-abuse. The prohibition against coinage and bills would otherwise have been sufficient. — 3 Story on the Constitution, §1365; 3 Elliot's Debates, 144; Sturges v. Crownin shield, 4 Wheaton’s R., 122. This clause does not oblige the States to pass'tender laws. Nor does it authorize or recognize any authority to pass such laws to govern all eases. There are many commercial matters beyond the control of States. And, with the control over certain classes of contracts and undertakings placed in Congress, it is evident that no tender laws passed by any State could govern in any matter which was not itself governed and sanctioned by State laws.

Without the protection of tender laws, there could be no safety in the transaction of business. Parties could never know how to fulfill their engagements, or to secure their rights. Even the most barbarous people have some standard' of value which all persons can rely on. If a person is offered that which is a legal tender, he. is "obliged to accept it, or lose any cause of action for further detention of his debt, so long as 'the tender is kept good. If he holds securities, his refusal to accept the tender discharges them, and leaves his claim thereafter unsecured. — Caruthers v. Humphrey, 12 Mich. R., 270. And in some places such a tender destroys any right of action whatever. But no man is bound to accept what he has not expressly agreed to, imless some law compels him to do so. And if he is away from the place of the original transaction, there must be oijfcen insuperable obstacles to justice, in the absence of such legislation. ' But it is needless to enlarge on this subject,' as no one has been so unreasonable as to , claim that a country could exist, as a civilized nation, without a power, somewhere to declare what shall be a legal tender for the discharge of obligations.

Under the constitution of' the United States, all possible powers must be found in the Union or the States, or else they remain among those reserved rights which the people have retained, as not essential to be vested in any Government. That which is forbidden to the States is not necessarily in the Union, because it may be among the reserved powers. But if that • which is essential to Government is prohibited to one, it must of necessity be found' in the other; and the prohibition, in such a case, on the one side is equivalent to a grant on the other.

That there are necessities for tender laws in a multitude of cases over which the States would have no control, even could they coin money, is obvious. The power to regulate these must rest in the United States. If the constitution has placed bounds upon it, those bounds must be respected. If it has not done so, no Court has the right to limit what the people have seen fit to leave at large.

If there is anything expressed in the constitution upon the subject of a legal tender, it is the clause declaring that Congress shall have power “ to coin money, regulate the value thereof and of foreign coins.” .And it has been asserted that when the value of coin is fixed it becomes thereby a legal tender, and the constitution leaves no further option to Congress. This clause contains no reference to .gold or silver; and even if the phrase to “ coin money ” is to be confined to its literal sense of coining specie, it cannot be pretended that a prohibition on the States, relating to all but two specified metals, is to be made a limitation on Congress also. Congress, both before and since the constitution was adopted, has coined other metals, and this clause ■certainly confines them to no choice. But the argument confining a legal currency to some kind of metal will still hold good, if, as claimed, the power to regulate the value is another phrase for declaring the coin a legal tender. If, on the other hand, the power to create a legal tender is a distinct one, then there is no more reason for confining it to the coin of the .United, States, than to any other instrument of currency which may be adopted.

Upon this question we have means of decision which are beyond controversy. The Congress of the Confederation were expressly authorized to regulate the value of coin struck by their own authority, or by that of the respective States. It was never claimed that they could establish a legal tender. They could not control any class of commerce, and were without any legislative power whatever on this head. The States could not, without a violation of justice, make a legal tender which ■should fix a different value to their coins; but, had they chosen to do so, there would have been no remedy. It is notorious that they established the paper money of themselves and of the Confederation as a legal tender, and not always at the same rates. But there are other equally plain considerations. There is no country issuing coins of different metals, which does not fix the value of every coin issued, positively or relatively. The various silver coins have a proportionate value to each other, and the gold coins have a value measured by the silver as well as the gold standard. But it is not usual to. allow a legal tender, to any indefinite amount, to be made of silver or gold indiscriminately. Some countries adopt a silver standard, and some a gold one; and large payments need not be accepted unless made in the preferred metals. This country has not been an exception. We have made nothing but gold a legal tender indefinitely. Silver and copper have been allowed for small amounts, varying at different times. Discrimination has been made between the larger and smaller coins -of the same metal. Foreign coin has been sometimes a tender, and sometimes not. The tender has sometimes been allowed by tale, and sometimes by weight. To ■compel the acceptance of any kind of coin in any .amount, as a necessary inference from a Congressional ■declaration of value, would create as great a disturbance in the laws of trade as the establishment of any other arbitrary standard. We cannot conceive that the power-to regulate the value of coin makes that coin of necessity a legal tender at the value so fixed, it would be-contrary to all usage, and would lead to absurd consequences. It is contrary to the experience of the Confederation, which was replaced by- the Union. And wo have the decision of the United States Supreme Court, in Graig v. Missouri, before cited, recognizing the enactment of tender laws as having no necessary- identity with laws concerning money. We have failed to find any decision or plausible reason for confounding them.

But, while establishing the value of currency does not make it a legal tender, and does not necessarily confine tenders to that any more than to any other commercial article; yet it may be fairly claimed that there should at least be made a standard of value, by which- the currency should all be measured. But the relations of various coins to each other have always been more or less arbitrarily fixed. The relative values of silver and gold, as commodities, may fluctuate as they will without affecting the legal value of coin. The standard of ]3urity has several times been changed. The standard of value of coins has by no means been made to correspond to their intrinsic value. All that can be required of Congress is, that the 'currency shall be uniform throughout the country; and then, whether it shall be depreciated or kept'up to the highest standard must depend upon their own views of official duty. Whatever they lawfully determine to issue, they are unquestionably bound in justice to protect uniformly; and the power to issue a currency, and make it receivable at all by others than the Government, embraces ' the right and duty to place all persons on the same footing; for otherwise the power would be nugatory. The constitution clearly designed to take all questions of currency, whether paper or metal, from the hands of the several States; and we think it is in the discretion of Congress to make of its tokens, ■whether of one substance or another, tenders, in such amounts, or for such purposes, as may be determined upon. And the practical construction has always recognized in Congress the authority to make general tender laws concerning specie at least.

It is very probable, as has been claimed, that the framers of the constitution did not anticipate that money would be made current, except in specie. But they had before them examples of a different practice, which they only saw fit to reprobate as resorted to by the several States. It had been deemed necessary by Congress, during the Confederation, to issue paper money, far in. excess of any amount of specie which had then, or has since, been in the country. Yery many men then thought, and now think, that the Revolution must have failed without it. The constitution placing the whole war power in the United States, and allowing the Government to raise its own revenue directly, the States could rarely thereafter have occasion to raise money, except for State .purposes; and the prohibition against bills of credit could ■under no circumstances cramp them, to the general damage, while the power to issue such paper could hardly fail to create strife between them. The reasons urged by the statesmen of those days, in- their public discussions of the constitution, were all aimed at the danger of allowing this power to the States. But the absence -of any prohibition on the general Government, under these circumstances, is a very strong argument in favor ■of a design to leave it unembarrassed. As before intimated, however, we must look to the instrument itself; and wo there find the office of the Union, in controlling the financial interests of the country, so plainly established ' that the exclusion of the means now adopted cannot be admitted, without an arbitrary insertion of limitations not to be found presented there.

Whether the action ,of Congress has been wise or unwise, is a.matter between them and their constituents. They have resorted to a plan which, if it canses sacrifices, has a tendency to equalize them. Whether the-sacrifice could have been safely avoided, is a question which, if capable of any absolute and certain solution, can probably he answered more easily hereafter than now; and how it is to he answered, in no way concerns any judicial body.

We think the tender was lawful, and that the hill was properly dismissed. The decree must be affirmed, with costs.

The other Justices concurred.


author: Cooney J.:

text:
    Caroline Price v. William Hopkin and Another.

      Limitation laws. — The Legislature has general power to pass limitation laws* prescribing the time within which parties shalL assert their rights by suit * but this power is not so unlimited as to enable it, under the form of a limitation law, to take away all remedy.

      Retrospective laws — when invalid'. — A legislative act, retrospectivo in its operation* and cutting off all remedy for the lapse of time occurring before it became a law, would violate the constitutional provision against depriving a person of property without due process of law, and, therefore, could not be sustained.

      ;Statute does not affect rights until operative as a law. t~ A statute passed to take effect at a future day is to be understood as speaking from the time it goes into operation, and not from the time of its passage. The intervening period , is allowed to enable the public to become acquainted with its provisions; but until it becomes operative as a law, they are not compelled to govern their-actions by it.
    Where, therefore, by the law, as -it stood on the 31st day of December, 1863, a person had sixteen years in which to bring suit for the recovery of a parcel of land claimed by her, and Act 35To. 227 of 1863, (Laws of 1863, p. 388,) if applied to the case, would have the effect, the moment it became operative, to cut off all remedy, it was held not to apply to such case.

      Beard May 2, 3 and 4.

      Decided May 13.

      Error to Wayne Circuit.

      Charles Tryon and Joseph 22 Bigelow, for plaintiff in error:
    In a oompreliensive sense, the term ex post facto law embraces all retrospective laws, or laws governing or controlling past transactions, whether they are of- a civil or criminal nature. — Sedgwick on Stat. and Const. Law pp. 499, 500; Calder v. Bull, 3 Dallas, 386.
    Retrospective Laws are not confined to such as are enacted to take effect at a .time anterior to their passage, but this term embraces all statutes which, operating- only from their* passage, affect, vested rights and past transactions. Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or attaches a new disability in respect to-transactions or considerations already past, must be deemed retrospective.— The Society &c. v. Wheeler 2, Gall., 139; Smith's Com., 291; 1 Kent's Com., p. 455; Dash v. Van Kleeck, 7 J. R., 477.
    An act of the Legislature is not to be construed to operate retrospectively, so as to take away a vested right. People v. Tibbets, 4 Cow., 384; Dash v. Van Kleeck, 7 J. R., 477.
    An ex post facto law, in the strict technical sense of the term, is usually understood to apply to criminal cases; yet laws impairing previously acquired civil rights are equally within the reason of that prohibition, and equally to be condemned.— Opinion of Ch. J. Kent in Dash v. Van Kleeck, 7 J. R., 505.
    Legislative acts creating new exceptions or defenses, or modifying previous remedies, should be so construed as not to affect -rights of action which have attached and become vested under the original law, and exist at the time of the repealing statute. — Sedgwick on Stat. and Const. Law, 135, 660; Bedford v. Shilling, 4 S. & R., 401; Butler v. Palmer, 1 Hill, 324.

      If a statute of limitations is retrospective, a reasonable time must be given to commence suits. — Pritchard v. Spencer, 2 Ind., 486; Sedgwick on Stat. and Const. Law, 659. 660, 690 and 691; Call v. Hagger, 8 Mass., 429; Holyohe v. Haskins, 5 Pick, 201; Smith v. Morrison, 22 Pick, 431; Holcomb v. Tracy, 2 Minn., 244.
    If the statute in question is to have a retrospective operation, then, in all those cases where the time provided in it had already run out when it took effect and became a law, it had the effect to transfer the property from the actual owner, without his consent, to the party in possession, and is in violation of Section 32 of Article VI., of the constitution of the State of Michigan, and void. — Taylor v. Porter, 4 Hill, 145; Wynehamer v. The People, 13 N. Y., 392; Norman v. Heist, 5 Watts & Sergt., 171; Hoke v. Henderson, 4 Dev., 15; 2 Kent's Com., 13; Jones v. Perry, 10 Yerger, 59; Embury v. Conner, 3 N. Y., 511; Westervelt v. Gregg, 12 N. Y., 202; Greene v. Briggs, 1 Curtis, 311; Hibbard v. The People, 4 Mich., 129; Bowman v. Middleton, 1 Bay, 252; Marray’s Lessees v. Hoboken L. & I. Co., 18 How., 276; Vanzant v. Waddel, 2 Yerger, 260; State Bank v. Cooper, 2 Yerger, 599; Bronson v. Kinzie, 1 How., 311; McCracken v. Hayward, 2 How., 608; Arrowsmith v. Burlingim, 4 McLean, 494; Reed v. Wright, 2 Greene, 22; Sedgwick on Stat. and Const. Law, 537, et seq., and cases cited; Cargill v. Power, 1 Mich., 369.

      Ward & Palmer, for defendant in error:
    Statutes of limitation are to.o beneficial in their effects, and are too thoroughly engrafted’ into the policy of the country, to be rooted out or lightly overturned, and they will be held valid unless the constitutional restriction can be pointed out which they violate. — Sears v. Cottrell, 5 Mich., 251; People v. Gallagher, 4 Mich., 244.

      This statute carefully provides ample time for every person to protect his interests, and is not obnoxious to the charge of being- unreasonable or arbitrary in any of its provisions. — Smith v. Morrison, 22 Pick, 430; Holcombe v. Tracy, 2 Minn., 241; Pierce v. Tobey, 5 Met., 169.
    That the law' is retroactive in its operation, and acts to some extent on vested rights, does not make it invalid. Fanciful objections to such laws have sometimes been urged, on the ground that they might be made to work great injustice and oppression; but the general course of legislation, and the prevailing sense of the people, .in nearly every State, have decided otherwise, and overwhelmingly sanctioned and approved them. — 1 Kent’s Com., 409; Satterlee v. Matthewson, 2 Pet., 380; Bennett v. Boggs, 1 Bald, 74; Evans v. Montgomery, 4 Watts & Serg., 218; Griffin v. McKenzie, 7 Geo., 163; Hawkins v. Barney’s Lessees, 5 Pet., 457; Wilson v. Hardesty, 1 Md. Ch. Decis., 66; Watson v. Mercer, 8 Pet., 88; Beal v. Nason, 14 Me., 344; Charles River Bridge v. Warren Bridge, 11 Pet., 420; James v. Stull, 9 Barb., 482; 6 Iowa, 106.
    In all the States, laws affecting the remedy, to enforce contracts even — such as abolishing imprisonment for debt, exempting personal property to a limited amount, and homesteads of considerable valije from levy of execution to enforce the payment of debts, whether contracted before or after the passage of the law — have been enacted, and their validity contested, but always upheld. — Bronson v. Newberry, 2 Doug., (Mich.,) 38; Rockwell v. Hubbell's Adm’rs, 2 Doug., (Mich.,) 197; Morse v. Goold, 11 N. Y., 281.
    The only restriction suggested in the adjudged cases to be imposed upon limitation laws is, that they should not annihilate the remedy on contracts without a reasonable time having been granted to enforce them, it being admitted that what is such reasonable time is a question for the Legislature and not the Courts to decide. — Hawkins v. Barney’s Lessees, 5 Pet., 456; Beal v. Nason, 14 Me., 444; Jachson v. Lamphire, 3 Pet., 280.
   Cooney J.:

The plaintiff in this suit brings ejectment, claiming to recover, as grantee of Mary Robinson, a lot in the city of 'Detroit, which was conveyed to said Mary Robinson, then the wife of John Robinson, by the Governor and Judges of the Territory of Michigan, by deed bearing date March 18, 1809. The defendants claimed, under John R. Williams,' and introduced evidence tending to show that said Williams had possessed and oechjDied the premises, adversely to the plaintiff and her grantor for about twenty years before the suit was commenced. There was other evidence in the case to show that said Mary and John Robinson resided in the Territory of Michigan at the date of said deed to her, but that they removed to Canada soon after, and she continued to reside there for some twelve years after his death, when she removed to Detroit. Her deed to the plaintiff bears date June 9, 1863.

The defendants offered in evidence a deed from Mary Robinson to John R. Williams, dated June 19, 1816, purporting to be executed and acknowledged at Detroit, on the day of its date, and to convey with covenants of warranty the premises in question. John Robinson did not join in this deed, nor is there anything on the face of it to indicate that the grantor is a married woman. The plaintiff objected to the introduction of this deed in evidence, unless it was first shown that the husband was dead, or that the grantor was in some way legally absolved from the marriage relation at the' time of its date, but the Court overruled the objection.

Under the foregoing evidence it was insisted, on behalf of the defendants that Act No. 227' of 1863, (Laws of 1863, p. 388,) to amend certain sections of tbe Compiled Laws, touching the limitation of actions relating to real property, was applicable to this case, and had the effect to bar the action. The Court sustained this position, and the defendants had judgment. •

Before the passage of the act of 1863, Mary Robin' son was entitled by the existing statutes to bring her action within twenty years from the time when the right accrued, excluding therefrom the period of her residence in Canada. She seems to have resided in Michigan for about four years only before this suit was commenced. The act of 1863 provides that, after the thirty-first day of December, 1863, “no person shall bring or maintain any action for the recovery of any lands, or the possession thereof, or make any entry thereupon unless such action Is commenced, or entry made, within the time herein limited therefor, after the right to make- such entry, or to bring such action, shall have first accrued to the plaintiff, or to some person through whom he claims.” The time limited for cases like the one before us is fifteen years, and the act makes no exception in favor of parties resident within the British Provinces of North America, though it does in favor of women under coverture. The last section provides that “when any right of action ’ or of entry shall have accrued before the time when these amendments shall take effect .as law, the same shall be governed by this chapter as amended: Provided, that [no entry shall be made, or action maintained, in any case where such right of action shall already have become barred, by any law now or hereafter in force in the territory of the State of Michigan; and provided further, that all actions commenced and .pending when these amendments shall become a law, shall not be effected thereby, but shall be governed by the law in force, touching the same at the time of the commencement thereof.”

This act was passed March 20, 1863, and was ordered to take effect January 1, 1864, and the construction placed upon it by the Court below made it bar the right of action in the present case the moment it took effect — more than fifteen years having then elapsed 'since the right of action accrued to Mary Robinson, and since her coverture ceased.

The general purpose of this law was commendable, and it should be sustained so far as can bo done consistent with well established rules. The exception in the former statute in favor of residents in the British North American Provinces, was based upon no sufficient reason, and the period allowed in many cases for bringing suits might unquestionably be shortened without detriment to .justice. But the question in the present case does not involve the merits of the law, but is simply, whether it is competent for the Legislature to take away an existing right of action, by a statute of limitations which allows no time in which to bring suit after the statute has come into operation.

The general power of the Legislature to pass statutes of limitation is not doubted. The time that these statutes shall allow for bringing suits is to be fixed by‘the legislative judgment and where the Legislature has fairly exercised its discretion, no Court is at liberty to review its action, and to annul the law, because in their opinion the legislative power has been unwisely exercised. ■ But the legislative authority is not so entirely unlimited that, under the name of a statute limiting the time within which a party shall resort to his legal remedy, all remedy whatsoever may be taken away. A statute which forbids any suit for the recovery of lands is not a statute of limitations, but a statute to pass to adverse possessors the title of all other claimants; and its validity can not depend upon the name bestowed upon it. It is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought. —. Piatt v. Vattier, 1 McLean, 158; Pritchard v. Spencer, 2 Ind., 486; State v. Swope, 7 Ind., 90; State v. Clark, 7 Ind., 468; Holcombe v. Tracy, 2 Minn., 245; Ridgley v. Steamboat Reindeer, 27 Mo., 442; Call v. Hagger, 8 Mass., 430; Holyoke v. Hoskins, 5 Pick., 26; West Feliciana R. R. Co., v. Stockett, 21 Miss., 395; Briscoe v.. Auketell, 28 Miss., 371; Central Bank of Georgia v. Soloman, 20 Geo., 408; and a statute that' fails to do this cannot possibly be sustained as a law of limitations, but would be a palpable violation of the constitutional provision that no person shall be deprived of property without due process of law.

It is claimed in the present case, that this act does give a reasonable time, inasmuch as its coming into effect is postponed for upwards of nine months from its passage, so that all persons who would be affected by the change in the law would be allowed that period within which to bring suit. It is not claimed that the act has any force as law before the first day of January, 1864, but it is said that it was notice to all persons of the change which was to take place in the law, that they might govern themselves accordingly.

The ease of Smith v. Morrison, 22 Pick., 430, unquestionably supports this view, which is, favored also by Holcombe v. Tracy, 2 Minn., 241; but it is difficult to see how any such principle can be applied to the statutes of this State. The constitution provides that “no public act shall take effect, or be in force until the expiration of ninety days from the end of the session at which the same is passed, unless the Legislature shall otherwise direct,” <fcc., (Art IP., §20.) The purpose of this pro'vision undoubtedly was to give the people time and opportunity to learn what changes were to be made in the law before those changes should come into operation, and some .countenance is therefore afforded to the position . of defendants, that the law becomes notice from its passage, notwithstanding it has not yet taken effect. But the idea embodied in this constitutional provision is, not that the passage of the law- is notice, but that ninety days from the end of the session are required to bring knowledge ■of the law to the public at large. In other words, as notice' of legislation is and must be given by publication in some form, the notice in _ analogy ■ to other cases of notice by publication, cannot be held complete until the whole period allowed for it has expired. And when the Legislature, for reasons satisfactory to them, decide to postpone the period for the statute to come into operation to a later period, it is to be presumed, nothing appearing to the contrary, that in the particular case it was deemed important that more time be allowed for citizens to ascertain the proposed changes, and to become acquainted with their bearings. The time thus allowed is the reasonable time fixed by the Legislature to bring knowledge of the law home to parties interested, before they are required to govern their actions by it.

That more time is essential for this purpose in some ■cases than in others is manifest. The legislative proceedings, in one case, may have attracted public attention and discussion, so that the passage of the act, as well-as its nature and bearings, will be generally known, almost immediately, while in another they are only brought to public notice by the publication of the act at some time afterwards. Many, without public detriment, may be ordered to take effect at once, while the grossest injustice might be done by allowing others to come into operation before they had been published in the statute book, and generally distributed.

To make this act operate as notice from its passage, seems to us to violate the constitutional provision we have quoted. To do that, we must hold that it has at least the effect and force of notice, during a period when, the constitution has declared it shall not take effect or be in force, and when the obvious design and intention was, that it should have no force or effect whatever. And a very slight examination will show that the construction placed upon it by defendants will give it all the force, during this period, that a statute of limitations ever possesses; for-the office of such a statute is simply to fix a time within which parties shall assert their rights or be barred. If, therefore, the defendants are correct in their positions, this statute was not only performing this office before it took effect, but, as to the case before us, it had had its full effect before it came in force.

We do not regard the rule laid down in Smith v. Morrison, 22 Pick, 430, as consistent with the rule heretofore adopted in this State. It was held in Rice v. Ruddiman, 10 Mich., 125, that a statute must be understood as beginning to speak. the moment it takes effect, and not before; and this decision is in harmony with that in Charles v. Lamberson, 1 Clark, (Iowa) 442, where a statute for the protection of homesteads, which made them liable for all debts contracted prior to its passage, was held to mean, prior to its taking effect, although that period was some time after its enactment; In Cargill v. Power, 1 Mich., 369, the question arose as to the period of redemption allowed- on a mortgage, executed 'in January, 1847, while the statute of 1844 was still in force, allowing two years’ redemption after foreclosure, under the power of sale. By the Revised Statutes of 1846, which had been adopted May 18, 1846, to take effect from and after the first day of March, 1847, the period allowed for redemption was'reduced to one year; and it was insisted, as the mortgage was executed after the passage of the Revised Statutes, but before they took effect, that the .intention of the parties was, that the proceedings, under the power to sell, should be regulated, and their rights governed by the Revised Statutes.

That case was certainly a strong one- for the application of such a doctrine, if it could be applied in any case; for eight months had already elapsed since the passage of the statutes, and the parties^ if they were to take any notice of them, would be thereby apprised that no proceedings could possibly be taken under the mortgage, resulting in a sale, before the new law was to take effect. But the Court say that “ no statute has, ex prqprio vigore, any force until it becomes the law of the land. All persons are bound to know, and are supposed to know, what , the law is; and as it is that which is to govern the conduct and actions of men, their contracts, it is to be presumed, are made in reference to it, unless the contrary is expressly shown.”

If the period between the passage and the taking effect of the statute can be regarded as time allowed by the statute for bringing suit, then in any case where, by a prospective statute, a time is limited for that purpose, the time should begin to run at the time when the statute is passed and not when it takes effect. But the Court hold that the intervening time is not to be counted as a part of the time limited. — Piatt v. Vattier, 1 McLean, 157.

The naked case here presented, then, is this: By the law in force to the close of the year 1863, Mary Robinson, or her grantee, was allowed sixteen years within which to bring suit for the recovery of this land; at that instant a statute took effect, which provided that all remedy whatever for its recovery was thereby barred. Whether passed at that moment or before, we conceive to be immaterial, and that the statute cannot be applied to this case without violating a plain principle of constitutional law.

The other question which is presented by the record, whether the deed from Mary Robinson to John R. Williams Was.properly received in evidence, was passed over by counsel without argument. The deed Avas certainly a proper instrument of evidence, if the defendants proposed to follow it with such other 'evidence as would establish its validity. They had a right to show that John Robinson'was dead or divorced, and that the right of Mary Robinson to convey as a feme sole had thereby become unquestionable. The plaintiff, assuming that her grantor was the identical Mary Robinson, who executed the deed to Williams, regards that deed as void for the supposed existing coverture. The precise question which this objection would raise, on the plaintiff’s theory of the facts, is, Whether a deed executed by a married woman within the territory of Michigan, as if she were a feme sole, in the year 1816, after her husband and herself bad left the territory, without the intention of returning to reside therein, was valid under the then existing laws, or can he avoided by her or her grantee, after the death of her husband? Tills is a grave question; and as the decision upon the present record does not turn upon it, we do not think it proper to express an opinion without having heard an argument.

The judgment of the Court below must be reversed, and a new trial ordered.

Ohristiancy and Campbell JJ. concurred.

Martin Cli. J. dissented.