
    Goodwin v. Morris.
    Statute of Limitations.
    The statute of limitations of this Mate affects the remedy only, and not the right or title to personal property.
    Common Law Rule Presumed.
    In the absence of any allegation or proof to the contrary, the court will ccntne that the common law rule of limitation concerning the bringing of actions to recover possesion of this class of property, is in force in Washington Territory, and under that rule the statute of this state could not be pleaci there as a to an action of that class.
    
      Appeal from Umatilla, The facts are stated in the opinion.
    
      Everts & Walker, for appellant.
    The statute of limitations commences to ran1 from the time,,, the possession becomes adverse. (11 Peters, 41, 52; 9 N. Y. 329; 35 Mo., 197; 49 Mo., 399; 54 Mo.. 315.)
    
    Where there has been continuity of possession, the time of all adverse claimants may be taken together, and the vendee can, plead possession in a vendor a a defense. (Code, see. 1; 5 Met., 15; 17 Am. Pec,,, A:9; 13 Id., 320;9 Id., 890.)
    The warranty of title by a vendor only extends to the boundaries of the ate. Contracts are governed by the lex contractus. (2 1 S. Digest. 783; 3 Met., 397; 6 Peters, 172.)
    
    The statute of limitations in sufficiently pleaded. (29 Cal, 19 45; 2 Estes’ Plead., 741; 37 Cal, 373.)
    Bailey, Tustin & Turner and Ronhare & Ramsey, for respondent.
    Paragraph 8 of the char o oi‘ fcbr coin r. below has reference to the attempt of the appellant title in himself by the s possession. The newer does not contain any plea of the statute of limitation. Possession of the mare fomore Mum sic years would, if true, constitute no defense, be-it true constitute title by possession, it u nst be adverse and hostile to the true owner. By failing to plead, in proper form, an adv for six years, the appellan. waived such. defense, (5 Curtis, 224; Angell on Limitation, section 385; 2 Smith's Leading Cacee. 598, MS: 22 Ark 4- 8; Wilson v. McEwan, 7 Or., 87; 38 Iowa, 156; 43 George., 332; 57 Mo., 294,)
    *Our statute merely suspends the rentedv, it does iv-i c-aíüí* guitsh the right. [Myers v. Beals'} » M, 180; CMru.'V/ff v. Jamiaon, 9 How., 413.)
   By the Court,

Watson, J.;

This action was commenced and meJ into justice are for Pendleton precinct, Umatilla county, Oregon. 7f undent there obtained judgment, and the case upper led to-the circuit court for said comity. The was tried there by a jury, and respondent again oto.lined a judgment, fam which an appeal has been taken to this court.

It appears that appellant obtained possession to mare, about the 1st September, 187, and kept possession of her from that date, in aid county, claiming her property, until in November, 1878, when he sold and doirco to respondent together with vole which she into had while so in appellant's possession and warranted title to une.

In September, 1879. respondent took th mare and Washington Territory, where they were claimed by the Waterman as her property oud giren up to In without.

This action was brought to recover -unaues for o or. ah of die warranty. The issues made by the pleading whether appellant had tide to the property when be the respondent and as to the damage.

The appellant claim a that, hi possession of over years Oregon gave him side to the property, and that an intruction give by the judge of the circuit court to the jury, on the trial bearing upon the queer ion of the sufficiency of hi-possession under the statute of limitations of this states was brroneonr and injuriously affected Ms substantial rights.

We are of the opinion, however, that he could acquire no title simply by adverse possession for the period prescribed by the statute witbin which an action to recover the possession of personal property must be commenced in this state, and that it therefore becomes unnecessary to consider the instruction objected to.

It bas been announced-, as the law in this state, governing sucb cases, that the statute of limitations bere only affects the remedy, and does not extinguish the right. (Meyer v. Beal, 5 Oregon, 130.)

Notwithstanding the great diversity of opinion upon the question of the effect of the statute of limitations, which appears in the numerous authorities upon the subject, we aiv wthely satisfied to adhere to tbe doctrine of that decision. It round construction of our statute, based, upon the obvious intention of the legislature that enacted it. Under other provisions of rite civil code, adopted at the same time, a defense under that statute taken advantage of by demurrer or answer waived. (Secs. 66, 69 and 70.) The following authority support the view. Townsend v. Jemison, 9 Howard, U. S. 413; Parsons Contracts, 99 and 100; Story’s Conflict of Laws, 576,5 Rouche v. Savetier, 3 John. Ch., 218, 221; Lincolin Lollelle, 6 Wend., 485.

The bar of tbe statute of limitations in this sfe coi id not he pleadhis a defense to an action for the posse-don of 13 w property in Washington Territory, where we must , in tie absence of allegation and proof to tbe contrary, presumo the, common law rule to prevail. (Cressey v. Tatom, el al., decided at tbe present term; 3 Parsons on Contracts, 381; Angell on Limitations, secs. 14,17, 20 and 21, and appendix, page 3, 5th edition.)

^Respondent was wholly justifiable in surrendering up ti e possession to the holder of the legal right and title of the property, under such circumstances, as he had no defense, and he thereupon became entitled to bring his action for damage on the warranty. The judgment of "the circuit court is affirmed.

Judgment affirmed.  