Townsend v. Jemison. 9 H. the suit is brought which regulates remedies. But for the foundation of comity, the manner of its exercise, and the extent to which courts can allowably carry it, we refer to the case of the Bank of Augusta v. Earle, 13 Pet. 519, 589; Conflict of Laws, Comity. From what has just been said, it must be seen, when it is claimed that statutes of limitation operate to extinguish a contract, and for that reason the statute of the State in which the contract was made may be pleaded in a foreign court, that it is a point not standing alone, disconnected from other received maxims of international jurisprudence. And it may well be asked, before it is determined otherwise, whether contracts by force of the different statutes of limitation in States are not exceptions from the general rule of the lex loci contractus. There are such exceptions for dissolving [*417] and discharging contracts out of the jurisdiction in which they were made. The limitations of remedies, and the forms and modes of suit, make such an exception. Confl. of Laws, 271, and 524 to 527. We may then infer that the doubts expressed in Leroy v. Crowninshield would have been withheld, if the point had been considered in the connection we have mentioned. We have found, too, that several of the civilians who wrote upon the question did so without having kept in mind the difference between the positive and negative prescription of the civil law. In doing so, some of them—not regarding the latter in its more extended signification as including all those bars or exceptions of law or of fact which may be opposed to the prosecution of a claim, as well out of the jurisdiction in which a contract was made as in it -were led to the conclusion, that the prescription was a part of the contract, and not the denial of a remedy for its enforcement. It may be as well here to state the difference between the two prescriptions in the civil law. Positive, or the Roman usucaptio, is the acquisition of property, real or personal, immovable, or movable, by the continued possession of the acquirer for such a time as is described by the law to be sufficient. Erskine's Inst. 556. Adjectio dominii per continuationem possessionis temporis lege definiti." Dig. 3. Negative prescription is the loss or forfeiture of a right, by the proprietor's neglecting to exercise or prosecute it during the whole period which the law hath declared to be sufficient to infer the loss of it. It includes the former, and applies also to all those demands which are the subject of personal actions. Erskine's Inst. 560, and 3 Burge, 26. Most of the civilians, however, did not lose sight of the differences between these prescriptions, and if their reasons for doing so had been taken as a guide, instead of some expressions used by them, Townsend v. Jemison. 9 H. in respect to what may be presumed as to the extinction or payment of a claim, while the plea in bar is pending, we do not think that any doubt would have been expressed concerning the correctness of their other conclusion, that statutes of limitation in suits upon contracts only relate to the remedy. But that was not done, and, from some expressions of Pothier and Lord Kames, it was said: "If the statute of limitations does create, proprio vigore, a presumption of the extinction or payment of the debt, which all nations ought to regard, it is not easy to see why the presumption of such payment, thus arising from the lex loci contractus, should not be as conclusive in every other place as in the place of the contract." And that was said in Leroy v. Crowninshield, in opposition to the declaration of both of those writers, that in any [418] other place than that of the contract such a presumption could not be made to defeat a law providing for proceedings upon suits. Here, turning aside for an instant from our main purpose, we find the beginning or source of those constructions of the English statutes of limitation which almost made them useless for the accomplishment of their end. Within a few years, the abuses of such constructions have been much corrected, and we are now, in the English and American courts, nearer to the legislative intent of such enactments. But neither Pothier nor Lord Kames meant to be understood, that the theory of statutes of limitation purported to afford positive presumptions of payment and extinction of contracts, according to the laws of the place where they are made. The extract which was made from Pothier shows his meaning is, that, when the statute of limitations has been pleaded by a defendant, the presumption is in his favor that he has extinguished and discharged his contract, until the plaintiff overcomes it by proof that he is within one of those exceptions of the statute which takes it out of the time after which he cannot bring a suit to enforce judicially the obligation of the defendant. The extract from Lord Kames only shows what may be done in Scotland when a process has been brought for payment of an English debt, after the English prescription has taken place. The English statute cannot be pleaded in Scotland in such a case, but according to the law of that forum, it may be pleaded that the debt is presumed to have been paid. And it makes an issue, in which the plaintiff in the suit may show that such a presumption does not apply to his demand; and that without any regard to the prescription of time in the English statute of limitation. It is upon this presumption of payment that the conclusion in Leroy v. Crowninshield was reached, and as it is now universally admitted that it Townsend v. Jemison. 9 H. is not a correct theory for the administration of statutes of limitation, we may say it was, in fact, because that theory was assumed in that case that doubts in it were expressed, contrary to the judgment which was given, in submission to what was admitted to be the law of the case. What we have said may serve a good purpose. It is pertinent to the point raised by the pleading in the case before us, and in our judgment there is no error in the district court's having sustained the demurrer. Before concluding, we will remark that nothing has been said in this case at all in conflict with what was said by this court in Shelby v. Guy, 11 Wheat. 361. The distinctions made by us here [* 419] between statutes giving a right to property * from possession for a certain time, and such as only take away remedies for the recovery of property after a certain time has passed, confirm it. In Shelby v. Guy, this court declared that, as by the laws of Virginia five years' bona fide possession of a slave constitutes a good title upon which the possessor may recover in detinue, such a title may be set up by the vendee of such possessor in the courts of Tennessee as a defence to a suit brought by a third party in those courts. The same had been previously ruled in this court in Brent v. Chapman, 5 Cranch, 358; and it is the rule in all cases where it is declared by statute that all rights to debts due more than a prescribed term of years shall be deemed extinguished, and that all titles to real and personal property not pressed within the prescribed time shall give ownership to an adverse possessor. Such a law, though one of limitation, goes directly to the extinguishment of the debt, claim, or right, and it is not a bar to the remedy. Lincoln v. Battelle, 6 Wend. 475. Confl. of Laws, 582. In Lincoln v. Battelle, 6 Wend. 475, the same doctrine was held. It is stated in the Conflict of Laws, 582, to be a settled point. The courts of Louisiana act upon it. We could cite other instances in which it has been announced in American courts of the last resort. In the cases of De la Vega v. Vianna, 1 Barn. & Adol. 284, and the British Linen Company v. Drummond, 10 Barn. & Cres. 903, it is said, that, if a French bill of exchange is sued in England, it must be sued on according to the laws of England, and there the English statute of limitations would form a bar to the demand if the bill had been due for more than six years. In the case of Don v. Lippmann, 5 Clark & Fin. 1, it was admitted by the very learned counsel who argued that case for the defendants in error, that, though the law for expounding a contract was the law of the place in which it was made, the remedy for enforcing it must be the law of the place in which it is sued. In that case will be found, in the argument of Townsend v. Jemison. 9 H. * Lord Brougham before the house of lords, his declaration of the same doctrine, sustained by very cogent reasoning, drawn from what is the actual intent of the parties to a contract when it is made, and from the inconveniences of pursuing a different course. In Beckford and others v. Wade, 17 Vesey, 87, Sir William Grant, acknowledging the rule, makes the distinction between statutes merely barring the legal remedy and such as prohibit a suit from being brought after a specified time. It was a case arising under the possessory law of Jamaica, which converts a possession for seven years under a deed, will, or other conveyance, into a positive absolute title, against all the world, without exceptions in favor of any [* 420 ] one or any right, however a party may have been situated during that time, or whatever his previous right of property may have been. There is a statute of the same kind in Rhode Island. 2 R. I. Laws, 363, 364, ed. 1822. In Tennessee, there is an act in some respects similar to the possessory law of Jamaica; it gives an indefeasible title in fee-simple to lands of which a person has had possession for seven years, excepting only from its operation infants, feme coverts, non compotes mentis, persons imprisoned or beyond the limits of the United States and the territories thereof, and the heirs of the excepted, provided they bring actions within three years after they have a right to sue. Act of November 16, 1817, c. 28, §§ 1, 2. So in North Carolina, there is a provision in the act of 1715, c. 17, § 2, with the same exceptions as in the act of Tennessee, the latter being probably copied substantially from the former. Thirty years' possession in Louisiana prescribes land, though possessed without title and malâ fide. We have mentioned those acts in our own States, only for the purpose of showing the difference between statutes giving title from possession, and such as only limit the bringing of suits. It not unfrequently happens in legislation, that such sections are found in statutes for the limitation of actions. It is in fact because they have been overlooked, that the distinction between them has not been recognized as much as it ought to have been in the discussion of the point, whether a certain time assigned by a statute, within which an action must be brought, is a part of the contract, or solely the remedy. The rule in such a case is, that the obligations of the contract upon the parties to it, except in well-known cases, are to be expounded by the lex loci contractus. Suits brought to enforce contracts, either in the State where they were made, or in the courts of other States, are subject to the remedies of the forum in which the suit is, including that of statutes of limitation. Doe v. Eslava. 9 H. JOHN DOE, ex dem. OF CATHARINE LOUISA BARBARIE, ANN BILLUP BARDE, DANIEL R. BROWER and ANN B. BROWER, his Wife, CURTIS LEWIS and ISABELLA LEWIS, his Wife, JOHN T. LACKEY and MARGARET LACKEY, his Wife, Heirs and Legal Representatives of ROBERT FARMER, deceased, v. MIGUEL D. ESLAVA, and others, Tenants in Possession. 9 H. 421. Where a title founded on a French grant, made in 1759, was confirmed by congress under the act of May 8, 1822, ( 3 Stats. at Large, 699,) and another title founded on a Spanish grant made in 1788, under which possession had been held, also confirmed by the same act, came in conflict, and the state court held that both parties stood on equal ground under the act of congress, and that it was necessary to resort to the antecedent condition of the titles to decide between them, and thereupon decided that under the local laws and regulations the junior grant, with possession, must prevail, this court cannot reëxamine that decision under the 25th section of the judiciary act of 1789, (1 Stats. at Large, 85.) ERROR to the supreme court of the State of Alabama, in an action of ejectment by the plaintiff in error, to recover a lot in the city of Mobile. The title relied on by the plaintiff was a grant from the governor of Louisiana, in 1759, mesne conveyances from the grantee to the ancestor of the lessors of the plaintiff, and a confirmation by act of congress of May 8, 1822, after the following proceedings, before the board of commissioners: [* 423 ] *In June, 1820, the claim was presented by Louis de Vobiscey, who had married one of the daughters of Farmer, in the following manner. "To the Register and Receiver of Public Moneys, acting as Commissioners of Land Claims at Jackson Court House, Mississippi. "Gentlemen: You are hereby notified that the following claims of the heirs of Robert Farmer are now revived, and additional evidence offered in support thereof, to wit: a lot in the city of Mobile, situate opposite to Fort Charlotte, and running fourteen toises (eighty-four feet) front on Government street, and running back to the public bakehouse, (about three hundred feet,) which said lot was granted by the French government, by patent bearing date 19th April, 1757, to Mr. Grondel, who, by deed bearing date 22d August, 1757, sold it to Bertrand Guichandene, who, by deed of sale bearing date 18th March, 1759, sold it to Count Pascher, by whom, by deed, lost by time or accident, it was transferred to Robert Farmer, who, according to the evidence hereto annexed, inhabited the same upwards of twenty years, and which is now in my possession in right of the heirs of said Farmer. A translation of the patent is recorded |