ness, it seems clear that the deed is no more void in this case than one where there has been no assessment, as in Marsh v. The Supervisors, or where there has been no notice of sale of the land, or where the land has been sold to raise moneys in part that constituted no portion of the tax levied, as in Milledge v. Coleman, 47 Wis., 184, where it was held that the statute run upon the tax deed. In all those cases it was not possible that there could be any valid tax deed on the sale, while here there could have been, as the proceedings up to and including the sale were all regular; and if the statute runs in those cases it is evident that it does in this.

In that case, which is the last expression of the supreme court on the question, the court say: "In the very recent case of Oconto Company v. Jerrard, 46 Wis., 317, the effect of the tax deed where the statute had run was very fully considered. In that case there was no pretense that the tax for which the deed was issued proceeded upon a regular, fair and equal assessment of the property to be taxed. A more fundamental and fatal defect in the tax proceedings than this could not well exist, since a valid assessment is the foundation of the tax. In answer to the argument that the statute was not intended to apply to such a case, and that the deed could be impeached for a radical defect, the chief justice uses this language: The respondents had their day to impeach the tax proceedings and avoid the tax deed; then they might have said that the groundwork was so defective that there was no tax. This they did not then do, and they are now too late to do it. They suffered the statute to purge the tax proceedings of all defects, to raise the tax deed above impeachment. Their objections may be all well founded, but they came out of time. What the respondents might have said they cannot now say. The statute has left them like one estopped to speak the truth, because they did not speak it when they might.' That has been the construction uniformly given by this court to the statute of limitations in relation to tax deeds. It has been uniformly held in a multitude of cases, that, as against the grantee of a tax deed, the statute puts at rest all objections against the validity of a tax proceedings, whether resting on mere irregularity or going to the ground work of the tax. The statute makes a deed valid on its face prima facie evidence, as soon as executed, of the regularity of all proceedings from the assessment of the land inclusive to the execution of the deed, and the effect of all the decisions is that, when the statute has run in favor of the grantee, the debt becomes conclusive to the same extent. The terms of the statute bar any action to recover possession of land sold and conveyed by deed for non-payment of taxes, and the learned counsel for the respondent contends that to bring a tax deed within the statute the validity of the tax and of the sale must be established. Such a construction would go far to make the statute a dead letter. The statute was designed to protect things de facto, not things de jure. When there has been an actual attempt, however defective in detail, to carry out a proper exercise of the taxing power, the statute applies; and the trouble with the argument is that in such a case, saving the instances excepted by the statute itself after the statute has run, the tax deed itself conclusively establishes the validity of the tax and of the sale."

Demurrer is sustained and judgment for the defendant.

§ 124. Limitation must be reasonable. The limitations for the commencement of actions prescribed by the legislature, in so far as they affect existing contracts, are not conclusive on the courts; the limitation so fixed must be reasonable, and the courts have the right to determine whether the time so limited is reasonable. Pereles v. City of Watertown,* 6 Biss., 79.

§ 125. Action brought upon city bonds dated August 1, 1853, payable within ten years thereafter; the limitation for actions on such contracts at that time was twenty years; the legislature of the state (Wisconsin) passed, April 3, 1872, an act requiring actions of the nature, if already accrued, to be commenced within one year after its passage; the action was commenced in April, 1874; the act was held unconstitutional. Ibid.

§ 126. Judgments of other states. The statute of Mississippi of 1846, limiting suits on judgments recovered out of the state, does not affect judgments recovered before its passage. It refers to the time of the commencement of the action and not to the time of trial. An action of debt was brought in Mississippi in 1850, on a judgment recovered in 1844 in Louisiana. The defendant pleaded that at the time of the rendition of the judgment and down to the time of pleading, he was a resident of Mississippi, and also the statute of 1846, which barred actions on judgments recovered out of the state against residents, after three years. The plaintiff had judgment. Murray v. Gibson,* 15 How., 421.

§ 127. Applies to subsequent statutes.-The act of 1790, limiting the time in which to find indictments to two years after the commission of the offense, applies to offenses arising under statutes subsequently passed. So held where defendant had been convicted of a crime under a statute passed subsequent to 1790, and he sued out a writ of habeas corpus to review the sentence. Johnson v. United States,* 3 McL., 89.

§ 128. The Wisconsin statute of limitation applies to causes of action accrued at the time of its enactment. Cleveland Ins. Co. v. Reed, 1 Biss., 180.

§ 129. The repeal of an exception contained in the statute of limitations causes the statute to begin to run from the date of the repeal. So held in an action commenced in 1847 on a writing obligatory and several promissory notes in Arkansas. The plaintiff was a non-resident of the state. The statute in force when the contract was entered into contained an exception in favor of non-residents. This exception was repealed in 1843, and the time was extended by act of 1844 to two years. The action was held to be commenced in time, as the statutory period was five years as to the writing obligatory, and barred as to the notes, the period being three years. Boyle v. Arledge,* Hemp., 620.

§ 130. When a statute of limitations contains an exception in favor of non-residents, and, by a subsequent statute, the exception is repealed, the running of the statute is counted as though the exception never existed. The courts will not give effect to such statutes where a reasonable limitation is not left in favor of actions accrued before its passage. Lewis v. Broadwell,* 3 McL., 568.

§ 131. By the statute of limitations of 1785 of Vermont the true owner of lands was not barred until the lapse of fifteen years. By the act of 1802, the statute did not run against the true owner of lands held for public, pious or charitable uses. This exception was repealed in 1819. In an action commenced in 1824 to recover certain lands in Vermont by a charitable organization, of which adverse possession had been taken in 1794, the true owner was held not barred. Society for the Propagation, etc., v. Pawlet, 4 Pet., 480 (§§ 611-18).

§ 132. Coupons. The cases of The City v. Lamson, 9 Wall., 477, and The City v. Butler, 14 Wall., 282, did not intend to decide that the right of action upon an interest coupon cut from a municipal bond was not barred by the statute of limitations until the action upon the bond itself was barred; but only that such coupons partook of the nature of the bonds so far as that the same limitation would apply to them as to the bond itself, although the bond was sealed and the coupons were not, and a different limitation was prescribed for sealed instruments and those unsealed. Clark v. Iowa City,* 20 Wall., 583; 9 West. Jur., 113.

§ 133. Bankruptcy.- The two years' limitation in the bankrupt act applies to suits by assignees to collect the debts and assets of the estate, as well as to suits relating to specific property. Payson v. Coffin, 4 Dill., 386.

§ 134. Distress for taxes due to the city of Washington is not barred by the statute of limitations. Hogan v. Ingle, 2 Cr. C. C., 352.

§ 135. Miscellaneous.— The Maryland statute of limitations of twelve years is a bar to an action against the devisee of the obligor, brought in Alexandria upon a bond executed and assigned in Maryland, all the parties having continued to reside in Maryland until the expiration of the twelve years. Gilpin v. Plummer, 2 Cr. C. C., 54.

§ 136. A payment of a part of the debt by the executor within the twelve years does not take the case out of the statute as to the heirs and devisees. Ibid.

§ 137. The statute of limitations does not apply to assumpsit upon open accounts between merchants. Wilson v. Mandeville, 1 Cr. C. C., 433.

§ 138. The plea of prescription is inapplicable to a case of pledge or antichresis in Louisiana under the civil law. Livingston v. Story, 11 Pet., 351.

§ 139. While New Orleans was under the control of the federal army a bill of exchange drawn upon a citizen of that place by a citizen of Mississippi was seized by the commander of the federal forces, and, although such bill was a nullity, collected from the drawee in New

Orleans, and the money confiscated. In an action of assumpsit brought to recover damages from such commander for the unauthorized collection, held, that the action did not come within the act of March 3, 1863 (12 Stat. at L., 757), which enacts that "no suit or prosecution, civil or criminal, shall be maintained for any arrest or imprisonment made, or other trespasses or wrongs done or committed, . . by virtue or under color of any authority derived from or exercised by or under the president of the United States, or by or under any act of congress, unless the same shall have been commenced within two years next after such arrest, imprisonment, trespass or wrong may have been done," etc. Britton v. Butler, 11 Am. L. Reg. (N. S.), 293; 9 Blatch., 456; 5 Am. L. T., 101; 15 Int. Rev. Rec., 98.

SUMMARY

5. State Statute in United States Courts.

Will follow state decisions, § 140.— Rule in equity cases, § 141.

§ 140. The federal courts will follow the state statute of limitations as construed by the state courts, and, in so far as it affects title to land, will overrule their own decisions in order to con- · form to the interpretation given by the state courts. So held in an action involving the title to lands in Tennessee, where the United States courts had in 1816 given one interpretation to the state statute of limitations, and in 1825 the state courts adopted a construction inconsistent therewith. Green v. Neal, §§ 142-144.

§ 141. The United States courts are not bound to follow as rules of decision, in equity cases, the statutes of limitation of the several states or the construction given to them by the state judiciary. And in cases where they do so by analogy, it is because equity requires it and the statutes are found to be in harmony with its general principles. Thus where the statute of limitations of the state of Missouri barred claims against the estate of a decedent, if not presented within two years, the court refused to follow it, where there had been a fraudulent concealment of the cause of action by the deceased and the fraud was not discovered until seven years after his death. Johnston v. Roe, § 145. [NOTES.-See SS 146-170.]

GREEN v. NEAL.

(6 Peters, 291-301. 1832.)

Opinion by MR. JUSTICE MCLEAN. STATEMENT OF FACTS. This writ of error is prosecuted to reverse a judgment of the circuit court for West Tennessee. An action of ejectment was prosecuted by Neal in that court, to recover the possession of six hundred and forty acres of land. The issue was joined, and at the trial the defendant relied upon the statute of limitations, and prayed certain instructions of the court to the jury. Instructions were given as stated in the following bill of exceptions:

"In the trial the plaintiff introduced in evidence a grant from the state of North Carolina, dated, to Willoughby Williams, for the land in controversy, and deduced a regular chain of conveyances to plaintiffs' lessor, and proved defendant in possession of the land in question at the time suit was brought; defendant introduced a deed from Andrew Jackson to Edward Dillon, and proved that defendant held by a lease from Dillon; and also in support of Dillon's title introduced evidence tending to prove that persons claiming under and for Dillon had been more than seven years in possession. of the premises in dispute, adverse to the plaintiffs; upon which the court charged the jury that, according to the present state of decision in the supreme court of the United States, they could not charge that defendant's title was made good by the statute of limitations."

The decision of the point raised by the bill of exceptions in this case is one of great importance, both as it respects the amount of property which may be affected by it, and the principle which it involves. In the case of Patton v. Easton, 1 Wheat., 476, which was brought to this court by writ of error in

1816, the same question which was raised by the bill of exceptions was then decided. But it is contended that, under the peculiar circumstances of the case now before the court, they ought not to feel themselves bound by their former decision. This court, in the case of Powell v. Harman, 2 Pet., 241, gave another decision, under the authority of the one just named; but the question was not argued before the court.

§ 142. This court uniformly adopts the decisions of the state courts respectively in the construction of their statutes.

The question involves, in the first place, the construction of the statutes of limitations passed in 1715 and in 1797. The former was adopted by the state of Tennessee from North Carolina; the third section of which provides "that no person or persons, or their heirs, which hereafter shall have any right or title to any lands, tenements, or hereditaments, shall thereunto enter or make claim, but within seven years after his, her or their right or title shall descend or accrue; and in default thereof, such person or persons so not entering or making default shall be utterly excluded and disabled from any entry or claim thereafter to be made." The fourth section provides, after enumerating certain disabilities, and the time within which suit must be brought after they shall cease, that "all possessions held without suing such claim as aforesaid shall be a perpetual bar against all and all manner of persons whatever, that the expectation of heirs may not, in a short time, leave much land unpossessed, and titles so perplexed that no man will know from whom to take or buy land."

In the year 1797, the legislature, in order to settle the "true construction of the existing laws respecting seven years' possession," enact "that in all cases, wherever any person or persons shall have had seven years' peaceable possession of any land, by virtue of a grant or deed of conveyance founded upon a grant, and no legal claim by suit in law, by such, set up to said land, within the above term, that then, and in that case, the person or persons so holding possession as aforesaid shall be entitled to hold possession in preference to all other claimants, such quantity of land as shall be specified in his, her, or their said grant or deed of conveyance, founded on a grant as aforesaid." This act further provides that those who neglect, for the term of seven years, to assert their claim, shall be barred.

This court, in the conclusion of their opinion in the case of Patton v. Easton, 1 Wheat., 481, say, "this question, too, has at length been decided in the supreme court of the state. Subsequent to the division of opinion on this question in the circuit court, two cases have been decided in the supreme court for the state of Tennessee, which have settled the construction of the act of 1797. It has been decided that a possession of seven years is a bar only when held under a grant, or a deed founded on a grant.' The deed must be connected with the grant. This court concurs in that opinion. A deed cannot be founded on a grant' which gives a title not derived in law or equity from that grant, and the words 'founded on a grant' are too important to be discarded."

The two decided cases, to which reference is made above, are Lillard v. Elliott, and Douglass . Bledsoo's Heirs. These cases were decided in 1815; and this court considered that they settled the construction of the statute of 1797. But it is now made to appear that these decisions were made under such circumstances that they were never considered, in the state of Tennessee, as fully settling the construction of the act.

In the case of Lillard v. Elliott it seems but two judges concurred on the point, the court being composed of four; and in the case of Weatherhead v. Bledsoe, 2 Overt., 352, there was great contrariety of opinion among the judges on the point of either legal or equitable connection. The question was frequently raised before the supreme court of Tennessee; but the construction of the two statutes of limitations was never considered as finally settled until 1825, when the case of Gray v. Darby, Mart. & Yerg., 396, was decided. In this cause an elaborate review of the cases which had arisen under the statute is taken, and the construction of both statutes was given, that it is not necessary, to entitle an individual to the benefits of the statutes, that he should show a connected title, either legal or equitable. That if he prove an adverse possession of seven years under a deed, before suit is brought, and show that the land has been granted, he brings himself within the statutes.

Since this decision the law has been considered as settled in Tennessee, and there has been so general an acquiescence in all the courts of the state, that the point is not now raised or discussed. This construction has become a rule of property in the state, and numerous suits involving title have been settled by it.

Had this been the settled construction of these statutes when the decision was made by this court in the case of Patton's Lessee v. Easton there can be no doubt that that opinion would have conformed to it. But the question is now raised whether this court will adhere to its own decision, made under the circumstances stated, or yield to that of the judicial tribunals of Tennessee. This point has never before been directly decided by this court on a question of general importance. The cases are numerous where the court have adopted the constructions given to the statute of a state by its supreme judicial tribunal; but it has never been decided that this court will overrule their own adjudication, establishing an important rule of property, where it has been founded on the construction of a statute made in conformity to the decisions of the state at the time, so as to conform to a different construction adopted afterwards by the state.

This is a question of grave import, and should be approached with great deliberation. It is deeply interesting in every point of view in which it may be considered. As a rule of property it is important, and equally so as it regards the system under which the powers of this tribunal are exercised. It may be proper to examine in what light the decisions of the state courts, in giving a construction to their own statutes, have been considered by this court. In the case of M'Keen v. Delancy, 5 Cranch, 22, this court held that the acknowledgment of a deed before a justice of the supreme court, under a statute which required the acknowledgment to be made before a justice of the peace, having been long practiced in Pennsylvania, and sanctioned by her tribunals, must be considered as within the statute.

The chief justice, in giving the opinion of the court in the case of Bodley v. Taylor, 5 Cranch, 221, says, in reference to the jurisdiction of a court of equity: "Had this been a case of the first impression, some contrariety of opinion would, perhaps, have existed on this point. But it has been sufficiently shown that the practice of resorting to a court of chancery, in order to set up an equitable against the legal title, received in its origin the sanction of the court of appeals, while Kentucky remained a part of Virginia, and has been so confirmed by an uninterrupted series of decisions, as to be incorporated into their