
    THOMAS RICHARDS VS. OLIVER TOWLES.
    Four years adverse possession of a chattel in another State, will not confer title against one here, who has no right to sue or enforce a legal remedy against the property.
    Where a negro, subject to the lien of an execution in this State, was taken off and sold in Georgia, where he remained upwards of seven years, four of which in the continuous possession of one owner, and afterwards, on being found in this State, was levied on and sold under the execution which was against him when he was taken away: (and which, meanwhile, having lost its active energy, was renewed by sci. fa.) Held, by a majority of the court, that the negro was still liable to seizure under the execution ; and that the possession in Georgia could not avail against the execution, and the Sheriff acting under it. Chancellors DeSaussure, Harper, and Johnson, dissenting.
    
      
      Before Mr. Justice Butler, at Edgefield, Spring Term, 1836.
    Trover for a negro, Ralph. His Honor the presiding Judge, sent up the following report of the case :
    Ralph was in plaintiff’s possession at the time he was taken by the defendant, (the sheriff of Edgefield at the time.) The plaintiff bought Ralph from Carr, in Augusta, Georgia. Carr bought him from Dalby, Dalby from John B. Guidron. As appeared by a bill of sale, Wilson Barrenton sold the negro to Guidron on the 26th of May, 1827. Carr, Dalby and Guidron lived in Georgia. Guidron was in possession of the negro a little longer than 4 years, under the bill of sale from Barrenton ; and the others had the continuous possession, till he was taken by the sheriff in November, 1834. Plaintiff proved that Ralph was worth $400.
    The defendant justified the taking of Ralph. He shewed that in 1825 he belonged to John M’Bride. That Wilson Barrenton was the agent of M’Bride, and had been employed to take his negroes out of the State and sell them, at a time there were various executions and judgments against him (M’Bride) unsatisfied. Indeed, it was not denied that Barrenton sold to Guidron as the agent of M’Bride. He had taken this negro, with others, to Alabama and other places, endeavoring to sell him, before Guidron bought him. The defendant, as sheriff of Edgefield district, sold the negro on sale day in December, 1834, under an execution — Executors of John Ramsay vs. John M'Bride. The judgment on which the fi. fa. was issued, was originally recovered by John Ramsay vs. John M’Bride. Fi. fa. lodged in Abbeville, Nov. 3rd, 1824. Sci. fa. to revive judgment and fi.fa. was taken out by the executors of John Ramsay. Fi. fa. on this sci.fa. was lodged in sheriff’s office of Edgefield, August 5th, 1834. Levy on the negro, November 5th, 1834 — sale in December ensuing.
    Upon my intimating an opinion that plaintiff could not recover upon the facts above stated, his counsel took a non-suit, with leave to move the Court of Appeals to set it aside.
    The first ground is, “ that the continuous possession of Guidron, Dalby, Carr and plaintiff, of the negro, for the period of 7 or 8 years, (in Georgia,) gave right and title to the property against the plaintiff in execution, and the sheriff acting under it.”
    It must be remarked, that no one ever had the adverse possession of the negro in South Carolina, till plaintiff bought him; which was not long before the sheriff sold him. The commencement of the adverse possession was in Georgia. Can four years adverse possession of a chattel, in a foreign State, confer title against any one who has no right to sue or-enforce a legal remedy against the property 1 The statute had not com? menced to run, as long as the negro remained in the possession of M’Bride, or his agent, Barrenton. I do not dispute the proposition, that four years adverse possession of an innocent purchaser in this State, will give title against the lien of an execution. In such case it runs against one who always has it in his power to enforce a legal remedy. By our statute of limitations, no action is barred in favor of one who has removed .beyond the limits of the State, before the right of action had accrued. ■The statute will not run in favor of one who has possession of intestate’s property, before administration is granted. This was expressly decided .in th,e case .of Geiger and Brown, reported in 4 M’Cord. Where a legal ¡remedy is suspended by injunction from Chancery, the statute will not run in favor of one having possession during the time. At least I apprehend not. In no case, thatl am aware of, will the statute run, where the party to be effected by it has no power to sue. In the case under consideration, the plaintiff in execution could not sue for the property specifically, either in this State or in Georgia. Nor had he a legal remedy by .which he could have made it liable to his debt. As soon as the property .was in Georgia, the execution lost its operation. The plaintiff in execution was deprived of all power of enforcing his remedy. Upon what ground of right, legal right, can the plaintiff set up the statute of limitations 1 No,doubt that the negro was taken off with a view to defraud creditors ; and it seems the fraud was not discovered by the plaintiff in execution until the negro was brought to this State. Upon this ground, .the execution creditors ought not to be barred of their remedy, until after the fraud was discovered. But I rest my opinion on the other ground. The question involved in this case, is one of great practical importance to persons living on the borders of the State ; it may frequently occur, and .ought to be settled.
    The other grounds taken by the plaintiff, resolve themselves into this .proposition — that a scire facias cannot revive the lien and enforcible energy of an execution. It has been repeatedly decided otherwise in this State. I think the law is, that a judgment and execution, when once revived , are revived vvith all their original power and incidents.
    •The plaintiff appeals, and moves to set aside the non-suit, and to reinstate his case on the docket for trial, on the grounds :
    1. That the continuous possession of Guidron, Dalby, Carr, and the plaintiff, of the negro in question, for the period of - seven or eight years, (in Georgia,) gave right and title to the property against the plaintiff in execution, or the sheriff acting under it.
    
      2. That the lien of the ji. fa. lodged in Nov. 1S24, was suspended, and the sheriff could not have levied in May, 1827, wheu defendant in execution, (M’Bride,) sold to Guidron in Augusta.
    3. That the fi. fa. under which defendant acted, being issued on a sci. fa. in August, 1834, did not restore the lost lien on the personal property ,of the defendant in execution.
    4. The order of non-suit was contrary to the law of the case.
    
      Baushet, for the motion. Griffin, contra.
   Curia, per

Richardson, J.

As this case has given rise to some difference of opinion, I propose to apply the principle adduced by the presiding judge; the soundness of which has corrected my own first misimpres.sions. The case depends upon the constructive application of our statute .of limitations.

Four years possession of the negro Ralph, in South Carolina, by a purchaser “bona fide," would constitute a good statutory bar against the judgment creditors of M’Bride; 1 Hill, 303. 1 Bay, 339. But will the

same possession, in any other State, where the lien of our judgments cannot operate, constitute such a bar, is the question to be decided. Without the statute of limitations, the plaintiff could have no ground to stand oh. And the statufe makes no express provision for his case. In order, therefore, to make the constructive induction in his favor, he must reason, .either from analogy, and the spirit of the Act, or else, from the comity of nations, which seeks to avoid a conflict of laws.

As to the first topic. General writers upon bars and presumptions, lay down this rule. “ Contra non valentem agere, nulla occurrit prescription Because, no delay can be imputed to a claimant before he has a right to ■institute his claim ; 1 Poth. Obi. 404. Story’s Con. of L. &c.

The policy and justice of such statutory bars, are very intelligible. They are opposed to the inactivity and laches of claimants. The object is to suppress frauds, and quiet claims to property, by putting time in the place of titles ; the loss of which, so often happens from accident or misfortune. And the good effect of such statutes is, to quicken the diligence of men, by making negligence amount to the release of rights.

The doctrine of prescription has, indeed, become so well understood, .that the observation of Bracton, (“ omnes ac-tiones in mundo habent limitationes,") is now a practical maxim, and possession a popular mode of conveyancing, by which the use and right are transferred to the occupant.

But, can a just view of any one of the considerations before noticed, .support the plaintiff’s demand for the benefit of our statute of limitations'!

The creditors of M’Bride could, in no way, enforce their liens in Georgia; and laches cannot be predicated of the conduct of men who were under a legal incompetency to pursue their rights.

I need not reiterate the case of Geiger vs. Brown. It is a judicial decision, which is full against the plaintiff’s argument, drawn from his possession in Georgia.

When a debtor dies, and has no representative who may be sued, the statutory bar does not apply. Because the creditor cannot bring suit; and, for that reason, he cannot be charged with negligence, in not sueing within the prescribed time. This decision, too, which goes with the justice, policy, and reason of the statute, is against its literal expression.

How much more readily, then, shall we apply its rationale against the possession of Richards, when his case is entirely without the letter of the statute ! But again ; if the plaintiff’s title were to prevail against the lien of judgments, would such exclusion of the statutory bar tend to suppress frauds 1 Which is the prime consideration, in the doctrine of prescriptions.

So far from suppressing frauds, it does seem very clear, that if once extended in favor of such a possession, out of the State, we would open houses of refuge for frauds, North, South and West. It is in this view, that arguments, ah inconvenienti, present themselves. And when the inconvenience is opposed to a mere constructive doctrine, such arguments carry great weight.

It follows, therefore, that the letter of the statute, the policy it aims at, and our decided cases, all bear out the opinion of the presiding judge.

But, there remains to be considered the other view taken on the part of the plaintiff: Ought we to decide the case here, as it would probably be decided in Georgia, if Richards had sued Towles in that State ?

The position is this: The title of Richards is perfect- in Georgia. ■Should it not, therefore, prevail in South Carolina I And a strong hypothetical case is put. Suppose a younger judgment creditor, here, had ¡revived his judgment in Georgia, had sold the negro under execution there, and held him for seven years. Would we then take the property in favor of an elder lien here ? This would be an imposing case, but it is an extreme one.

Still, I admit, that in a contest between two liens, both perfect, but, with such meritorious vigilance, and possession, in favor of the younger, it might ptevail over the elder lien.

But, it should be remembered, that between equal liens, the elder has a mere technical superiority over the younger. And in the suppositious case put, the arguments drawn from the general policy of statutes of limit'ations, would not apply. Nor would the apprehension of many frauds, following such a decision, be felt, as in the case actually before the1 court.

The rules of law are general, but' not universal. There is, perhaps, no doctrine so general, but that a case may be- brought with such peculiar equities, as not to be within its policy, morality, or reason : And them the maxim of common justice, and of the soundest philosophy, is, “ cessante ratione, cessat, et ipsa lex.” The same doctrine, bereft of its reason, then becomes foreign to the case j it does not apply. To draw blood in the streets of Venice, incurs death.’ But a surgeon who bleeds a patient there, in order to save his life, still incurs no penalty.

The answer to the argument, as far as it is fairly applicable to the case before us, is this : Although, in Georgia, the precise case of Richards and Towles would very probably be decided in favor of Richards, because the lien of our judgments would not attach in Georgia, and the possession would stand, without any antagonist principle — yet, if the contest there were between the same possession in South Carolina and judgment creditors in Georgia, the same decision would be made in favor of creditors. !5o that, properly considered, our decision holds out no conflict between the laws of the two States. And, “ mutatis mutandis” (the terms being rightly understood,) the-Georgia judicature would decide precisely as we now do. Harmony, therefore, not discord, will follow the reciprocal principles we have assumed, in deciding between our laws and those of a sister State ; and the obvious principles of public policy be supported.

The motion is refused.

Johnston, O’Neall, Gantt, and Evans, JJ., concurred.

Harper, Ch.

dissenting. I suppose that whatever effect the lien of an execution may have, under our decisions, within our own State, it cannot be doubted that it has no effect out of the limits of the State. Our laws cannot have operation out of our own jurisdiction. When the slave was sold in Georgia, he was subject to no lien, and there can be no doubt but that by the law of Georgia, the contract of sale was good and valid, and the purchaser acquired a good and perfect title in law and- equity. There’ is as little doubt, I think, that by the comity of nations, the validity and effect of every contract is determined by the law of the jurisdiction in which it was made, unless the contrapt has reference to another country for its performance; and it should seem to follow, that the title of the purchaser would be equally valid in every civilized State in the world. I am utterly at a loss to conceive the principle on which the slave could be subject to the execution of Ramsay when brought into this State'as the property of the plaintiff — how the lien of an execution against A can attach upon the property of B — how a title, good and valid, to every intent and purpose whatever, on the Southern bank of the Savannah fiver, can be defeated by the property’s being brought to the Northern bank.

If the purchaser in Georgia had known that the slave had been brought out of South Carolina for the purpose of cheating the execution, this' might well have been construed á fraud, which would have avoided his title. But this is not alledged, and the slave passed through several hands in Georgia. If a creditor of one of these owners had taken him in execu:ion, and he had been sold, the title of the purchaser would still depend upon the law of Georgia; and upon the principle contended for, if such a purchaser had brought him into this State, he must have been equally subject to the execution here. If there had been an execution against M’Bride, in Georgia, and he had been taken and sold While his property, I do not perceive how a similar consequence could be avoided.

By the principles of equity, a purchaser for valuable consideration without notice is always protected. He who has honestly paid his money, is supposed to have an equity as high as any other equity, and the court will never interfere against him. The plaintiff stands in this position. But there are not equal equities. It is a well known rule of law, that if one of two innocent persons must suffer, he shall bear the loss whose neglect has enabled a third person to occasion it. It is on this principle that a person making payment, bona fide, of a bill or note, payable to bearer, or indorsed in blank to one who stole or found it, is protected. Some degree of neglect is imputed to the true owner who lost it. But in this case the fi. fa. of Ramsay against M’Bride was lodged on the 3d of November, 1S24, and the sale of Guidron in Georgia, was on the 2Gth of May, 3827. The plaintiff forebore to enforce his execution for several years ; by this gross neglect putting it in the defendant’s power to send his property out of the State, and if the non-suit should be sustained, to defraud an innocent purchaser in Georgia. I cannot but think that such a decision would be in the highest degree unjust, and afford great cause of complaint to the citizens of neighboring States.

I am of opinion that the motion should be granted.

Chancellors DeSaussure and Johnson concurred in this opinion.  