Argument for Defendant in Error.

within which an action of dispossession could be commenced, ripens into a perfect and indefeasible title in fee simple.

In Harpending v. Reformed Dutch Church, ubi supra, it is laid down (following the head note) that, "After the elapse of twenty years from the commencement of adverse possession of the property claimed, the defendants had a title. as undoubted as if they had produced a deed in fee simple from the true owners of that date; and all inquiry into their title or its incidents was effectually cut off."

This rule has been followed by this court in many other cases, but we cite only one, Bicknell v. Comstock, 113 U. S. 149, 152, in which Mr. Justice Miller, delivering the opinion of the court, says: "This court has more than once held that the lapse of time provided by the statutes makes a perfect title.

"In Leffingwell v. Warren, 2 Black, 599, it is said that ‘the lapse of time limited by such statutes not only bars the remedy, but it extinguishes the right and vests a perfect title in the adverse holder.'

"And this doctrine is repeated in Croxall v. Shererd, 5 Wall. 268, 289; and in Dickerson v. Colgrove, 100 U. S. 578, 583."

The leading case in the State of Nebraska on the question of title by adverse possession is Horbach v. Miller, 4 Nebraska, 31. The later decisions on that question, citing and approving that case, are: Gatling v. Lane, 17 Nebraska, 77; Stettnischer v. Lamb, 18 Nebraska, 619; Parker v. Starr, 21 Nebraska, 680; Gue v. Jones, 25 Nebraska, 634; Tourtelotte v. Pierce, 27 Nebraska, 57; Fitzgerald v. Brewster, 31 Nebraska, 51; Meyer v. Lincoln, 33 Nebraska, 56. The following extract from Meyer v. Lincoln clearly states the rule established by these decisions: "By numerous decisions of this court it has been held that adverse possession of real estate, as owner, for ten years, gives a perfect title to the occupant. Horbach v. Miller, 4 Nebraska, 31, 47; Gatling v. Lane, 17 Nebraska, 77, 79; Haywood v. Thomas, 17 Nebraska, 237, 240; Tex v. Pflug, 24 Nebraska, 666, 669; Levy v. Yerga, 25 Nebraska, 764; Obernalte v. Edgar, 28 Nebraska, 70; Crawford v. Galloway,

Opinion of the Court.

29 Nebraska, 261; Peterson v. Townsend, 30 Nebraska, 373, 376; Alexander v. Wilcox, 30 Nebraska, 793, 795."

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

Objection is made that the bills of exception were not allowed and signed either at the trial or the judgment term, and the case of Müller v. Ehlers, 91 U. S. 249, is cited to show that we cannot consider them for that reason.

From the record, it does indeed appear that the bills of exception were not allowed and signed during the term at which the judgment was rendered, but it also appears that, at said term, an order was entered stating that, inasmuch as the bills of exception could not be completed at that term, the time for preparing and presenting them was extended till February 1, 1890, at which time bills of exception might be allowed and signed with the same force and effect as if said action had been had within the usual time; and it also appears that on January 18, 1890, plaintiff's counsel served defendant's counsel with a copy of the bills of exception proposed, with notice that they would be presented for the judge's consideration on January 27, 1890. On that day, defendant's counsel did not appear, and thereupon the court entered an order, reciting the foregoing facts, and directing that the bills of exception be filed with the clerk of the court, and that defendant should have thirty days in which to file suggestions of amendment thereto, and continuing the cause till the further order of the court for the purpose of settling, allowing, and signing the bills; and it further appears that on March 1, 1890, the bills of exception were finally signed by the judge and filed. The record also discloses that the defendant protested against the action of the court in extending the time and in allowing and signing the bill of exceptions after the expiration of the term at which the judgment was rendered.

In the case of Müller v. Ehlers, relied on by the defendant in error, this court did hold that because the bill of exceptions had not been signed at or during the term at which the judg

Opinion of the Court.

ment was rendered, it could not be considered, and expressed itself as follows: "As early as Walton v. United States, 9 Wheat. 651, the power to reduce exceptions taken at the trial to form and to have them signed and filed was, under ordinary circumstances, confined to a time not later than the term at which the judgment was rendered. This, we think, is the true rule, and one to which there should be no exceptions, without an express order of the court during the term or consent of the parties save under very extraordinary circumstances. Here we find no order of the court, no consent of the parties, and no such circumstances as will justify a departure from the rule. A judge cannot act judicially upon the rights of parties, after the parties in due course of proceedings have both in law and in fact been dismissed from the court."

As we have seen, the present record discloses "an express order of the court during the judgment term, continuing the cause for the purpose of settling, allowing, signing, and filing the bills of exception," and this case is thus brought within the ruling in Müller v. Ehlers.

Our most recent utterance on this subject was in Morse v. Anderson, ante, 158, where it was held that this court would not review bills of exception signed after the time fixed by a special order of the court had expired.

As this record discloses that the exceptions relied on were taken at the trial, and that the delay was in reliance on an express order of the court, postponing the act of allowing and signing the bills, we think that we are not precluded from a consideration of the errors assigned.

A further preliminary objection is urged to the form of the bill of exceptions, which is said to be a mere transcript of the entire testimony and of the charge, and the case of Hanna v. Maas, 122 U. S. 24, is cited.

In that case it was held that when a bill of exceptions is so framed as not to present any question of law in a form to be revised by this court, the judgment must be affirmed, but the facts of the case were thus stated: "This bill of exceptions has been framed and allowed in disregard of the settled rules of law upon the subject. No ruling upon evidence is

Opinion of the Court.

open to revision, because none appear to have been excepted to; and the overruling of the motion for a new trial is not a subject of exception. The bill of exceptions, instead of stating distinctly, as required by law and by the 4th Rule of this court, those matters of law in the charge which are excepted to, and those only, does not contain any part of the charge, or any exception to it, and undertakes to supply the want by referring to exhibits annexed, containing all the evidence introduced at the trial, the whole charge to the jury, and notes of a desultory conversation which followed between the judge and the counsel on both sides, leaving it to this court to pick out from those notes, if possible, a sufficient statement of some ruling in matter of law."

The present record presents a very different condition of facts, as the bill of exceptions, in so far as it relates to the charge, specifies with distinctness the parts of the charge excepted to and the legal propositions to which exceptions are taken. The view we take of the case does not compel us to consider the objections taken to the admission or rejection of evidence, and we are therefore not called upon to determine whether such objections are properly presented for review.

This was an action of ejectment for the recovery of a tract of land of which the boundaries and situation were not matters of dispute. It was conceded that both parties claimed to derive title from one E. B. Taylor, and that the plaintiff's evidence sufficed to entitle him to recover, unless such right of recovery was overcome by the defendant's claim of an adverse possession of a character and duration sufficient, under the laws of Nebraska, to create a good title.

The record discloses that the judge instructed the jury to make a finding of special facts; that the jury did so; that the plaintiff moved for judgment in his favor upon the verdict; that the defendant did likewise; and that the court sustained the defendant's motion and entered judgment in his favor.

The following are the statutory provisions of Nebraska relating to verdicts:

"SEC. 292. The verdict of a jury is either general or special. A general verdict is that by which they pronounce

Opinion of the Court.

generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury finds the facts only. It must present the facts as established by the evidence, and not the evidence to prove them, and they must be so presented as that nothing remains to the court but to draw from them conclusions of law.

"SEC. 293. In every action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases the court may direct the jury to find a special verdict in writing, upon all or any of the issues; and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact to be stated in writing, and may direct a written finding thereon. The special verdict or finding must be filed with the clerk and entered on the journal.

"SEC. 294. When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly." Compiled Statutes of Nebraska, 1887. Code of Civil Procedure.

The action of the court below in rendering judgment on the special verdict in favor of the defendant forms the subject of the first assignment of error. The plaintiff's contention. is that the special verdict did not warrant a judgment in favor of the defendant, because it did not find that the possession on which the defendant relied was actual and exclusive.

No state statute has been referred to as regulating or defining title by adverse possession, and, indeed, it is stated in the brief of defendant in error that there is no such statute; but there is a statutory provision that an action for the recovery of the title or possession of lands, tenements, or hereditaments can only be brought within ten years after the cause of such action shall have accrued.

Our investigation, therefore, into the sufficiency of the special verdict must be controlled by the principles established, in this branch of the law, by the decisions of the courts, particularly those of the Supreme Court of the State of Nebraska and of this court.