All limitation laws, however, must proceed on the theory that the party, by lapse of time and omissions on his part, has forfeited his right to assert his title in the law. Where they relate to property, it seems not to be essential that the adverse claimant should be in actual possession; 2 but one who is himself in the legal enjoyment of his property cannot have his rights therein forfeited to another, for failure to bring suit against that other within a time specified to test the validity of a claim which the latter asserts, but takes no steps to enforce. It has consequently been held that a statute which, after a lapse of five years, makes a recorded deed purporting to be executed under a statutory power conclusive evidence of a good title, could not be valid as a limitation law against the original owner in possession of the land. Limitation laws cannot compel a resort to legal proceedings by one who is already in the complete enjoyment of all he claims.3

All statutes of limitation, also, must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing right of claimants without affording this opportunity: if it should attempt to do so,

ford, 33 Tex. 745; s. c. 7 Am. Rep. 270; Pearsall v. Kenan, 79 N. C. 472; s. c. 28 Am. Rep. 336. A class of cases may be excepted from the operation of the statute, though barred when such except ing act was passed. Sturm v. Fleming, 8 S. E Rep. 263 (W. Va.). The legisla ture may compel a county to pay a claim barred by the general statute. Caldwell Co v. Harbert, 68 Tex. 321.

1 Stearns v. Gittings, 23 Ill. 587, per Walker, J.; Sturges . Crowninshield, 4 Wheat. 122, 207, per Marshall, Ch. J. Pearce v. Patton, 7 B. Monr. 162; Griffin r. McKenzie, 7 Ga. 163; Colinan v. Holmes, 44 Ala. 124.

Miss. 1038. The case of Leffingwell v. Warren, 2 Black, 599, is contra. That case follows Wisconsin decisions. In the leading case of Hil v. Kricke, 11 Wis. 442, the holder of the original title was not in possession; and what was decided was that it was not necessary for the holder of the tax title to be in possession in order to claim the benefit of the statute; ejectment against a claimant being permitted by law when the lands were unoccupied. See also Barrett . Holmes, 102 U. S. 651. To stop the running of the statute it is not necessary that the owner should be in continuous possession. Smith v. Sherry, 54 Wis. 114. This

2 Stearns. Gittings, 23 Ill. 387; Hill circumstance of possession or want of v. Kricke, 11 Wis. 442.

3 Groesbeck v. Seeley, 13 Mich. 329. In Case v. Dean, 16 Mich. 12, it was held that this statute could not be enforced as a limitation law in favor of the party in possession, inasmuch as it did not proceed on the idea of limiting the time for bringing suit, but by a conclusive rule of evidence sought to pass over the property to the claimant under the statutory sale in all cases, irrespective of possession. See also Baker v. Kelly, 11 Minn. 480; Eldridge v. Kuehl, 27 Iowa, 160, 173; Monk r. Corbin, 58 Iowa, 503; Farrar v. Clark, 85 Ind. 449; Dingey v. Paxton, 60

possession in the person whose right is to be extinguished seems to us of vital importance. How can a man justly be held guilty of laches in not asserting claims to property, when he already possesses and enjoys the property? The old maxim is, "That which was originally void cannot by mere lapse of time be made valid;" and if a void claim by force of an act of limitation can ripen into a conclusive title as against the owner in possession, the policy underlying that species of legislation must be something beyond what has been generally sup posed.

it would be not a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions. It is essential that such statutes allow a reasonable time after they take effect for the commencement of suits upon existing causes of action; though what shall be considered. a reasonable time must be settled by the judgment of the legislature, and the courts will not inquire into the wisdom of its deci sion in establishing the period of legal bar, unless the time allowed is manifestly so insufficient that the statute becomes a denial of justice.2

Alterations in the Rules of Evidence.

It must also be evident that a right to have one's controversies determined by existing rules of evidence is not a vested right. These

rules pertain to the remedies which the State provides for its citizens; and generally in legal contemplation they neither enter into and constitute a part of any contract, nor can be regarded as being of the essence of any right which a party may seek to enforce. Like other rules affecting the remedy, they must therefore at all times be subject to modification and control by the legislature; 1 and the changes which are enacted may lawfully be made applicable to existing causes of action, even in those States in which retrospective laws are forbidden. For the law as changed would only prescribe rules for presenting the evidence in legal controversies in the future; and it could not therefore be called retrospective even though some of the controversies upon which it may act were in progress before. It has accordingly been held in New Hampshire that a statute which removed the disqualification of interest, and allowed parties in suits to testify, might lawfully apply to existing causes of action. So may a statute which modifies the common-law rule excluding parol evidence to vary the terms of a written contract;3 and a statute making the protest of a promissory note evidence of the facts therein stated.1 These and the like cases will sufficiently illustrate the general rule, that the whole subject is under the control of the legislature, which prescribes such rules for the trial and determination as well of existing as of future rights and controversies as in its judgment will most completely subserve the ends of justice."

A strong instance in illustration of legislative control over evidence will be found in the laws of some of the States in regard to conveyances of lands upon sales to satisfy delinquent taxes. Independent of special statutory rule on the subject, such conveyances would not be evidence of title. They are executed under a statutory power; and it devolves upon the claimant under them to show that the successive steps which under the statute lead to such conveyance have been taken. But it cannot be doubted that this rule may be so changed as to make a tax-deed prima facie evi

Cowan v. McCutchen, 43 Miss. 207; Carothers v. Hurly, 41 Miss. 71. The right to testify existing when a contract is made may be taken away. Goodlett v. Kelly, 74 Ala. 213.

3 Gibbs v. Gale, 7 Md. 76.

4 Fales. Wadsworth, 23 Me. 553.

5 Per Marshall, Ch. J., in Ogden v. Saunders, 12 Wheat. 213, 249; Webb v. Den, 17 How. 576; Delaplaine v. Cook, 7 Wis. 44; Kendall v. Kingston, 5 Mass. 524; Towler v. Chatterton, 6 Bing 258; Himmelman v. Carpentier, 47 Cal. 42.

dence that all the proceedings have been regular, and that the purchaser has acquired under them a complete title. The burden of proof is thereby changed from one party to the other; the legal presumption which the statute creates in favor of the purchaser being sufficient, in connection with the deed, to establish his case, unless it is overcome by countervailing testimony. Statutes making defective records evidence of valid conveyances are of a similar nature; and these usually, perhaps always, have reference to records before made, and provide for making them competent evidence where before they were merely void.2 But they divest no title, and are not even retrospective in character. They merely establish what the legislature regards as a reasonable and just rule for the presentation by the parties of their rights before the courts in the future.

But there are fixed bounds to the power of the legislature over this subject which cannot be exceeded. As to what shall be evidence, and which party shall assume the burden of proof in civil cases, its authority is practically unrestricted, so long as its regulations are impartial and uniform; but it has no power to establish rules which, under pretence of regulating the presentation of evidence, go so far as altogether to preclude a party from exhibiting his rights. Except in those cases which fall within the familiar doctrine of estoppel at the common law, or other cases resting upon the like reasons, it would not, we apprehend, be in the power of the legislature to declare that a particular item of evidence should preclude a party from establishing his rights in opposition to it. In judicial investigations the law of the land requires an opportunity for a trial; and there can be no trial if only one party is suffered to produce his proofs. The most formal conveyance may be a fraud or a forgery; public officers may connive with rogues to rob the citizen of his property; witnesses may testify or officers certify falsely, and records may be collusively manufactured for dishonest purposes; and that legislation which would preclude the fraud or wrong being shown, and deprive the party wronged of all remedy, has no justification in the principles of natural justice or of constitutional law. A statute, therefore,

1 Hand v. Ballou, 12 N. Y. 541; Forbes v. Halsey, 26 N.Y. 53; Delaplaine ». Cook, 7 Wis. 44; Allen v. Armstrong, 16 Iowa, 508; Adams v. Beale, 19 Iowa, 61; Amberg v. Rogers, 9 Mich. 332; Lumsden v. Cross, 10 Wis. 282; Lacey v. Davis, 4 Mich. 140; Wright v. Dunham, 13 Mich. 411; Abbott r. Lindenbower, 42 Mo. 162; s. c. 46 Mo. 291. The rule once estab

lished may be abolished, even as to ex-
isting deeds. Hickox v. Tallman, 38 Barb.
608; Strode v. Washer, 16 Pac. Rep. 926
(Or.); Gage v. Caraher, 125 Ill. 447.
2 See Webb r. Den, 17 How. 576.

3 Tift . Griffin, 5 Ga. 185; Lenz v. Charlton, 23 Wis. 478; Conway v. Cable, 37 Ill. 82; ante, p. 443, note; post, pp. 469-471 and notes.

which should make a tax-deed conclusive evidence of a complete title, and preclude the owner of the original title from showing its invalidity, would be void, because being not a law regulating evidence, but an unconstitutional confiscation of property. And a statute which should make the certificate or opinion of an officer conclusive evidence of the illegality of an existing contract would be equally nugatory; 2 though perhaps if parties should enter into a contract in view of such a statute then existing, its provisions might properly be regarded as assented to and incorporated in their contract, and therefore binding upon them.3