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able opinion in the case of Humbert v. Trinity Church, 24 Wend., 587, remarked that it was of the nature of the statute of limitations, when applied to civil actions, "to mature a wrong into a right by cutting off the remedy;" and again, when speaking of actions brought by the true owner after the bar of the statute, "his title remains, but he has lost his remedy."

The question in this case was whether the long continued adverse possession of the defendant barred the plaintiff's action, and it was held rightly that it did. The effect of an adverse possession as a means of acquiring title was not, however, involved in the case. The doctrine that a statute of limitations merely extinguishes the remedy, has been frequently applied to contract obligations. As thus applied the principle cannot be disputed. Time may bar an action upon the promise or contract, but it does not pay the debt. That remains as a moral obligation, at least, and is a good consideration for a new promise. Adverse possession of tangible property implies not only the lapse of time but occupation and enjoyment by the possessor and the acquiescence of the true owner in a hostile claim of title. The idea that the title to property can survive the loss of every remedy known to the law for reducing it to possession and enjoyment would seem to have but small support in logic or reason. Enactments which are appropriately termed statutes of repose, when applied to the adverse possession of land, have, as it seems to us, a broader and deeper effect than simply to destroy the remedy of the true owner for its recovery.

One of the earliest cases in this state upon the question is Jackson v. Dieffendorf, 3 John., 269, decided nearly a quarter of a century before the change made in the English statute. 21 Jac. 1 Ch. 16. In that case a party who could show no other title to land than an adverse occupation for thirty-eight years was at the end of that period put out of possession by another, who had the paper title, under a judgment in ejectment obtained by default; and the party recovering the judgment, and in whose deed the premises were included, went into possession. The dispossessed party then brought another action of ejectment against the person who had turned him out, and who had a deed of the land, for the purpose of repossessing himself of what he had lost. The court held that he was entitled to recover upon the ground that the alverse possession was conclusive evidence of his title. The doctrine of that case on this point has never been disturbed, and the case itself has frequently been cited with approval in this court. Baldwin v. Brown, 16 N. Y., 364; Reed v. Farr, 35 id., 117. The case of Cahill v. Palmer, 45 N. Y., 478, was an action to recover money paid to the defendant for certain lands taken for Central Park. Both parties claimed to own the land for which the money was paid by the city. A statute provided that when the money was paid to the wrong person, the real owner of the land might bring and maintain an action to recover it from the party to whom paid. The plaintiff had the paper title to the land, and the defendant, to whom the money was paid, showed an adverse possession for more than twenty years prior to the time the land was

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taken by the city. This court held that the money was properly paid to the defendant, and that the plaintiff could not recover.

Grover, J., referring to the point now under consideration, said: "The counsel for the appellant insists that an adverse possession, although for the length of time required by statute to bar the owner, is available only as a defense to a suit brought by such owner for the recovery of the land. In this the counsel is in error. When the possession is actual, exclusive, open and notorious, under a claim of title adverse to any and all other for the time prescribed by statute, such possession establishes title. To uphold it, a grant from the true owner to such party may be presumed." In Reformed Church v. Schoolcraft, 65 N. Y., 134, it was held that adverse possession for the period prescribed by the statute to bar an action was sufficient proof of title upon which to maintain an action of ejectment against parties in possession without title. The policy upon which the statute of limitations was based, when applied to real property, was examined and the conclusion reached in that case that the real owner's title is lost by acquiescence in adverse possession by another, and that the title lost is gained by the party in possession. In Barnes v. Light, 116 N. Y., 34; 26 N. Y. State Rep., 654, it was held that an action of ejectment, founded upon adverse possession alone, may be maintained by the party in whose favor the adverse possession has run, even against the true owner. This case was decided mainly upon the authority of Sherman v. Kane, 86 N. Y., 57; Carleton v. Darcy, 90 id., 566, and Mayor v. Carleton, 113 id., 284; 22 N. Y. State Rep., 625, in all of which it is held that title may be obtained by adverse possession alone. In Millard v. McMullin, 68 N. Y., 345, it is held that such a title is sufficient to uphold the lien of an execution. A clear adverse possession for twenty years constitutes a title which a purchaser at a judicial sale may not refuse. Seymour v. De Lancey, 1 Hopk. Ch., 436; Mott v. Mou, 68 N. Y., 246; Shriver v. Shriver, 86 id., 575; O'Connor v. Huggins, 113 id., 511; 23 N. Y. State Rep., 275.

The supreme court of the United States has repeatedly asserted the recognized rule of the common law that adverse possession is one of the modes of acquiring title to property. In Campbell v. Holt, 115 U. S., 620, Mr. Justice Miller, delivering the opinion of the court, said: "By the long and undisturbed possession of tangible property, real or personal, one may acquire a title to it, or ownership, superior in law to that of another, who may be able to prove an antecedent and, at one time, paramount title.

This superior or antecedent title has been lost by the laches of the person holding it in failing within a reasonable time to assert it effectively; as by resuming the possession to which he was entitled, or asserting his right by suit in the proper court. What the primary owner has lost by his laches, the other party has gained by continued possession without question of his right. This is the foundation of the doctrine of prescription, a doctrine which in the English law is mainly applied to incorporeal hereditaments, but which in the Roman law, and the Codes founded on it, is applied to property of all kinds." After pointing out the

fact that possession was the earliest mode known to mankind for the appropriation of anything tangible to the use of one, and to the exclusion of all others, and that it was always a means of acquiring title, he adds: "The English and American statutes of limitation have in many cases the same effect, and if there is any conflict of decisions on the subject, the weight of authority is in favor of the proposition that where one has had the peaceable, undisturbed, open possession of real or personal property, with an assertion of his ownership, for the period which, under the law, would bar an action for its recovery by the real owner, the former has acquired a good title, a title superior to that of the latter, whose neglect to avail himself of his legal rights has lost him his title. This doctrine has repeatedly been asserted in this court. Leffingwell v. Warren, 2 Black, 599; Croxall v. Shererd, 5 Wall., 268, 289; Dickerson v. Colgrove, 100 U. S., 578, 583; Bicknell v. Comstock, 113 id., 149, 152. It is the doctrine of the English courts, and has been often asserted in the highest courts of the states of the Union."

The principle has also the sanction of two eminent authors on the law of limitations. Judge Cooley, in his recent work, referring to this question, says: "When the period prescribed by statute has once run, so as to cut off the remedy which one might have had for the recovery of property in the possession of another, the title to the property irrespective of the original right is regarded in the law as vested in the possessor, who is entitled to the same protection in respect to it which the owner is entitled to in other cases.

"A subsequent repeal of the limitation law could not be given a retroactive effect, so as to disturb this title. It is vested as completely and perfectly, and is as safe from legislative interference as it would have been had it been perfected in the owner by grant, or by any species of assurance." The learned author, admitting that there is controversy in regard to the point, has collected in a note the decisions of the highest courts in the several states sustaining the doctrine stated in the text. Cooley's Con. Lim., 449, 5th ed. In the other treatise on this subject, which is of highest authority, it is said: "As a general doctrine it has too long been established to be now in the least degree controverted, that what the law deems a perfect possession, if continued without interruption during the whole period which is prescribed by the statute for the enforcement of the right of entry, is evidence of a fee. Independently of positive or statute law, the possession supposes an acquiescence in all persons claiming an adverse interest; and upon this acquiescence is founded the presumption of the existence of some substantial reason, though perhaps not known, for which the claim of an adverse interest was forborne. Not only every legal presumption, but every consideration of public policy, requires that this evidence of right should be taken to be very strong, if not of conclusive force." Angell on Lim., ch. 31, p. 373. The same learned author seems to treat prescription and adverse possession, so far as this question is concerned, as practically the same thing. Id., ch. 1 and 2.

These authorities and others that might be cited show that title

to an estate in land may be acquired by one and lost by another by means of adverse possession. This principle has become a rule of property that cannot now be disturbed without grave injury to titles. There is no serious claim that the plaintiff can recover the share which she took direct from her father; and, as to the other two shares, the plaintiff's remainders are limited upon her mother's life estate, which the defendant has absorbed in its adverse possession and is not yet terminated, as under the principles above stated, she had nothing to convey and nothing passed to the plaintiff under the deed of October, 1885. Hence, the plaintiff's rights are to be determined in this case in the same way as if the deed had not been executed at all. This point is, we think, decisive of the case, and it is not necessary to examine the questions, so ably discussed, whether the conveyance offends against the champerty statutes; whether the defendant is entitled to the rights of a mortgagee in possession, or when, and under what circumstances, a defendant in ejectment can protect his possession by an outstanding title in another.

The judgment should be affirmed.

All concur, except ANDREWS, J., taking no part, and GRAY, J., not voting.

THE PEOPLE ex rel. LAFAYETTE E. PRUYNE, App'lt, v. CHARLES H. WALTS, Resp't.'

(Court of Appeals, Second Division, Filed October 7, 1890.)

HABEAS CORPUS-CUSTODY OF CHILD.

The withholding of a child from its legal guardian and delivering it to other control or custody when such disposition is for the best interests of the child, is a matter which rests very largely in the discretion of the court or officer who issues a writ of habeas corpus.

APPEAL from an order of the general term of the fourth judicial department, affirming an order made by Mr. Justice Kennedy, at chambers, dismissing a writ of habeas corpus.

The relator was a testamentary guardian of Terzah G. Bigelow, the infant daughter of Lyman E. and Melitta H. Bigelow, who, at the commencement of these proceedings, was between seven and eight years of age.

In September, 1883, Mrs. Bigelow left her husband, taking her daughter with her, and went to the house of her father, where she resided until her death in December, 1886. While residing with her father, who was a widower, she arranged with the respondent and his wife that in case of her death her daughter should make her home with them, and a few days after the mother's death the child became a member of the respondent's family. Lyman E. Bigelow died in August, 1884, leaving a will, by which, after giving small legacies to his wife and daughter, he made the relator residuary legatee of his estate, and appointed him guardian of the person and estate of his daughter.

This proceeding was instituted in January, 1887.

Watson M. Rogers, for app'lt; Levi II. Brown, for resp't.

1 See 47 Hun, 632.

BROWN, J.-This case is very similar in its facts to Matter of Welch, 74 N. Y., 299. There as here the contest was between the testamentary guardian appointed by the will of the father, and those to whose custody the mother had committed the child. There as here the special term dismissed the writ, without prejudice to further proceedings, for reasons affecting the health and welfare of the child. This court dismissed the appeal, holding that such reasons justified the withholding the custody of the child from its legal guardian and that the matter was one so purely within the discretion of the special term that its conclusions would not be reviewed.

We are of the opinion that the same disposition must be made of this appeal. See also People ex rel. Lucy Allen v. William H. Allen, 105 N. Y., 628; 6 N. Y. State Rep., 795.

The learned counsel for the relator claims that it was an abuse of discretion to withhold the custody of the child from its legal guardian. The rights of the guardian are no greater than those of the father and the cases are numerous where the custody of an infant has been withheld from a father upon considerations relating to the child's welfare. In re McDowle, 8 Johns., 328; People v. Weissenbach, 60 N. Y., 385.

The common law writ of habeas corpus was a writ in behalf of liberty, and its purpose was to deliver a prisoner from unjust imprisonment and illegal and improper restraint.

It was not a proceeding calculated to try the rights of parents and guardians to the custody of infant children.

It was of frequent use, however, when children were detained from their parents or guardians, on the ground that absence from legal custody was equivalent to illegal restraint and imprisonment.

In the case of children of the age of discretion the object of the writ was usually accomplished by allowing the party restrained the exercise of his volition, but in the case of an infant of an age to be incapable of determining what was best for itself the court or officer made the determination for it, and in so doing the child's welfare was the chief end in view. Rex v. Delaval, 3 Burr., 1434; Matter of Waldron, 13 Johns., 418; People v. Mercein, 8 Paige, 47; S. C., 25 Wend., 73; People v. Wilcox, 22 Barb., 178; Wilcox v. Wilcox, 14 N. Y., 575; People v. Weissenbach, 60 id., 385; see also Hurd on Habeas Corpus, chap. 9.

The purpose of the writ, as now regulated by the Code, is the same. Code Civ. Pro., §§ 2015, 2031.

The court is bound to respect the legal rights of the parent or guardian, and their rights cannot be overthrown by the mere wishes of the child. But the jurisdiction to be exercised by the court or officer is equitable in its character, and the welfare of the child is the chief object to be attained and must be the guide for the judgment of the court.

It is entirely competent, therefore, for the court, while recogniz ing the legal rights of the guardian, to make a temporary disposition of the child and to deliver it to other control or custody when such disposition is for the best interests of the child, and

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