
    
      BROH vs. JENKINS.
    
    
      If a slave be claimed by prescription, the question is to be examined according to the laws of the country in which he was thus acquited.
    
    
      A statute of limitations vests the property, when it prevents the former owner from recovering the thing, in consequence of a continued adverse possession.
    
    
      It is like the ussucapio of the Roman law.
    
    
      Appeal from the court of the parish and city of New-Orleans.
    
    
      Turner, for the defendant.
    
    
      This suit is brought by the plaintiff, as heir to his mother, to recover a slave named Lazare.
    
    
      The testimony on the part of the plaintiff is, that he is the only child of madame Broh; that the slave Lazare belonged to her, in the year 1803, when she resided at Jeremy, in the island of St. Domingo; that she sent him to Charleston in that year; that she died at Baracoa, about the end of 1808, or beginning of 1809; that the plaintiff was born in 1792, or 1793, and was consequently 26 or 27 years old when this suit was commenced.
    
    
      The testimony on the part of defendant is, that Lazare was in possession of Mr. Placide in Charleston, about fourteen years before this suit was commenced, where he always remained, until sold to defendant ; that Placide sold him to Dastras, on the 26th of May, 1806, who possessed him, as owner, until his death in the summer 1817, a term of eleven years ; that he was in October, 1817, sold to Lazarus, that Lazarus sold him to defendant on the 2d of August, 1819, in Charleston, South Carolina.
    East’n District.
    April, 1821.
    By the plaintiff’s own shewing, he and his mother were out of possession sixteen years; of that time more than five years were in the life time of madame Broh, and more than five years elapsed after plaintiff came of age; making the full term of prescription for slaves by our law. Civil Code, 488, art. 74.
    But the defendant contends, that by the laws of South Carolina, his title is undoubtedly protected ; four years adverse possession, in that state, will give title against the former owner, if within the state, and five years if out of the state. By that law whatever might have been the right of Placide, when he sold him to Dastras, there can be no doubt that the eleven years possession in Dastras gave him a good title, which descended on his death to his heirs, and that possession has continued in the descendants, and their vendees ever since, until the institution of this suit, in September, 1819.
    But it is contended by the plaintiff’s counsel, that our law of prescription does not apply in this case, because the thing was not within the jurisdiction of the state, and that the law of South Carolina cannot apply, because it is not a law of prescription, but merely a law of limitation, of the time within which a suit may be commenced.
    By the laws of nature and of nations, as laid down by Puffendorf, b. 4, chap. 12, and by Rutherforth, in his institutes, b. 1, chap. 8, property in things moveable and immoveable, in lands and in chattels, may be acquired by long possession, denominated prescription, or occupancy, and that mode of acquisition is common to all civilized nations. In England, under whose common law, South Carolina is governed, that mode was common as well as in those states where the same laws prevailed. But in the loose and undefined terms of their law, in early times, in every thing but what related to real estate, no precise term seems to have been fixed, in which the possessor of a chattel acquired a right to it, in opposition to the first proprietor ; and the courts adopted, as a rule, that the possession should have continued so long that no one could remember the former owner’s title. This rule gave rise to many suits, on stale demands, to prevent which, the statute for limiting the time of bringing suits was enacted ; that statute placed the occupant of the thing precisely on the footing of one who had acquired by prescription—to wit, that he could not be disturbed by any pretended former owner, after the lapse of the time fixed in the statute. 3 Bac. abr. 500.
    
      Puffendorff says, “the word prescription, imports strictly that plea, demur, or exception by which the person thus in possession invalidates the claim of the first proprietor.”
    
      Rutherforth says, “prescription is a right to a thing acquired by long, honest and uninterrupted possession, though before such possession, some other person, and not the possessor, was the owner of it.”
    The possessor is presumed in England, and in the several states of this union, to be the proprietor of the thing, and in fact is so against all but him who hath the very right ; so that none can disturb him in the enjoyment of that possession, but the rightful proprietor. Eq. cases abr. 369, & 18, Vin. abr. 71.
    Therefore, when he who once had right, has lost that right, by neglecting to enforce it, by suit at law, the possessor remains the owner in full property ; that is, he possesses, with the capacity to hold against all the world. What idea have we of property in a thing, but the right of the possessor to enjoy it, to the exclusion of all others? Where, or in what state or country, that possession was acquired, is immaterial, provided it was honestly acquired, and has continued so long, that the former owner has lost his right of reclaiming by suit.
    It is established by two decisions in the supreme court of South Carolina, that the possession of a slave, or other chattel, does give title under their statute of limitations. 2 Bay, 156, 425.
    In Virginia, under their act of limitations, similar to that of South Carolina, it was decided, “that twenty years adverse possession is a positive title to the defendant ; it is not a bar to the action, or remedy of the plaintiff only, but takes away his right of possession.” This was a land case. 1 Mun. Rep. 455.
    
      In the same state, a person without a valid title, who has possessed slaves so long as to be protected by the act of limitations, acquires a legal title to them, and may sustain an action thereon. The court said, “that the long and peaceable possession of the slaves in question, acquired without fraud or force, gave to the plaintiffs a legal title to them,” and might sue on that title. 3 Hen. & Mun. 66.
    And again, when examining into the validity of the titles of adverse claimants of slaves, the defendants conceiving themselves protected by the act of limitations ; the court said, “the possession of the plaintiffs ceased in the year 1785, and this suit was not instituted until October, 1791. There were more than five years adversary possessions in the defendants, which is a complete bar to the plaintiff’s title” 4 Hen. & Mun. 145.
    If the court had understood the act only to be a bar to the remedy, they would have said nothing about barring the title. But, if the title is barred, it must be, because it is divested, and acquired by some other.
    But the same statute has received the same construction in the supreme court of the united states—to wit, that the possession of slaves will ripen into a title, to the property. 5 Cranch. 385.
    A contrary doctrine would bring with it a consequence inconsistent with the known principles of right of transmitting title to things, to wit, that the possession would be protected, in the first person, and not in the second, having a derivative right. So long as the first possessor should retain the possession, even until his death, he would be safe in the enjoyment of the thing. But, so soon as he parted with it to another, whether by sale, or by descent, this new possessor would be exposed to the action of the old proprietor, whose action had been long barred by the act of limitations. Such a state of things would defeat the very ends of the law, which are the quietus of man’s possession.
    But the law is otherwise, as I understand it, and those who have lost their right of action, to chattles, by the operation of the statute, as against the first possessor, can never assert it against any second or subsequent possessor.
    In this case, can it be pretended, that Mr. Dastras had not a good right to the slave, after a possession of eleven years? Can it be pretended that Michael Lazarus, had acquired no right to the slave, by his purchase from Dastras? And, can it be doubted, that the defendant Jenkins acquired title in South Carolina, by his purchase, from Lazarus? Will any one pretend, that under the laws of South Carolina, the present plaintiff could have recovered the slave in that state from Dastras, Lazarus or Jenkins? By what rule of law is the right to the slave, thus acquired by the laws of that state, divested or weakened by removing into this state? Is not every citizen removing from one into another state, so protected in all his rights, acquired under the laws of the state from whence he removed? Is it not a principle well established, that the lex loci contractus shall govern the rights of the parties; the cases of interest, the cases of marriage, and succession, &c. are familiar to every one, that vested rights will not be lost by a removal into another state.
    But, whatever may be the opinion of the court on the foregoing view of the case, I contend, that by our own state laws, the right by prescription is complete in the defendant.
    The Spanish law, as found in the third Partida, title prescription, shews, that he who possesses in good faith, believing himself the owner, may acquire title to the thing by prescription, though the thing did formerly belong of right to another ; under this law lived madame Broh. By our Civil Code, 482, art. 32, “ prescription is a manner of acquiring property, or of discharging a debt by the effect of time, under the conditions regulated by law.”
    “Slaves may be prescribed for in half the time required for prescription of immoveable estates ; and in the same manner, and subject to the same exceptions.” Id. 488, art. 72. Immoveable estates may be prescribed for, after the expiration of ten years, if the true proprietor resides here, and after twenty, if he resides abroad. Id. 486, art. 67. Every man is presumed to have possessed fairly, and honestly, until the contrary be proved ; and it is sufficient if he commenced his possession fairly. Id. 488, art. 71 & 72. In our case there is not only a total absence of proof on the part of the plaintiff, of a knavish possession, but the proof is abundant, that it was bona fide, and for a fair price. To the time of our possession, we add that of those who possessed before us. Civil Code, 484, art. 43. To our own, and thus we complete seventeen years, But it will be said during part of that time the plaintiff was a minor, and the prescription did not run for that term ; let this be examined, and it will be soon seen to avail nothing. The mother of the plaintiff was out of possession from some time in 1803, until since about the latter end of 1808, when she died at Baracoa; making more than five years. The plaintiff came of age in Louisiana, 1813, and the suit was begun in September, 1819; making six full years after he was of age, for the prescription to run against him.
    Now we have seen that ten years is the full time of prescription, where the plaintiff resides abroad, surely it cannot require more when half that time he resided here. Now add the five years of madame Broh, to the six years of her son’s time, and we have more than ten to complete our right. So that taking this case by the law of Carolina, our title is a legal one. The whole time had run against madame Broh, in her lifetime, by the Carolina laws, and the title in Dastras was good ; the whole time required by our law, has run against plaintiff, and the title in Jenkens is good. But if I fail in this, we cannot be dispossessed without being paid the price of our purchase. Civil Code, 488, art. 76.
    
      There is a distinction very manifest between the possession of things, and the non-performance of an express allegation; a debt being contracted in one state is recoverable in every other. This is a positive obligation ; when contracted, the statute of limitations formed no part of it, and even if the action was barred, a new promise would revive it. But not so with things in possession of which the possessor believes himself to be the owner; a debtor is morally bound to pay his debt, no matter how long his creditor may have forborne to demand it, and the equity of the statute, in favour of the debtor, rests on the presumption of payment, arising from the long silence of the creditor. Besides a debt is invisible, a promise is not a thing, the promisor, or debtor remains in possession of no specific thing transferable by him to another; it is in every respect different from chattles, or things visible, tangible, and moveable, the right to which by long possession is given by the law of the place, and not by any contract or sale between the parties; the law is the ingredient, essential to the right, and a right thus acquired is permanent and transmissable. A contract has refereace to certain laws, as where by the law of the place, a certain interest is fixed, payable on the debt ; the law of interest is an ingredient in the contract, and wherever it may be demanded, by suit, the law of the place of the contract will be regarded as fixing the rights of the one, and the obligation of the other. Therefore, the statute of limitations of one state has no validity in another, as it regards the performance of contracts, for the payment of obligations; but of rights acquired under them, they ought every where to be regarded.
    Livingston, for the plaintiff.
    Madame Broh, the mother of the plaintiff, left St. Domingo, on account of the revolution, and came to Baracoa, in the island of Cuba, bringing with her two slaves, Lazare, the subject of the present suit, and another. In 1803, she sent those slaves to Charleston, by Darginier, to be kept until she should send for them; male negroes from St. Domingo not being permitted at that time to remain at Baracoa. She died the last of the year 1808, or the beginning of 1809.
    Her son, the present plaintiff, was born in 1793, and is her heir.
    He arrived here in 1809, the negro Lazare, was brought here by the defendant, in the month of August, 1819, and this suit was commenced the 15th September, in the same year.
    The defendant sets up the title of prescription, by virtue of possession, in himself and others, under whom he claims, founded on several sales which he produced, but, as we allege, does not properly prove.
    The first question to be disposed of is, by what law will the court judge of the prescription; that of South Carolina, where the slave was, or that of this state, where the suit is brought; if by the latter, whether any prescription begins to run until the subject of it be within the jurisdiction of the state; and finally, if it should so run, whether our laws of prescription, as applied to the facts in this case, will give a title to the defendant?
    On the first point. It is not clearly settled as law, that the lex loci contractus governs in all questions, relative to the construction of such contract, but that the lex fori must govern the proceeding to enforce it and all its incidents, for the first part of this statement, see 2 Huberus, 30, 1 Gal. 375, 2 John. 241, 5 Cranch. 289. 2 H. Bl., 553 ; for the second part, Hub. ubi sup. 5 Cranch. 289, 298, 302, 1 Gal. 376, 2 John. 199, 2 Mass. 89.
    
      A plea of the statute of limitation or prescription, as it is stiled in our law, is one of these incidents to the mode of proceeding, which is to be governed by the lex fori, Nash vs. Tupper, 402, 3 John. 267, 2 Mass. 84. In addition to these direct authorities, on the effect of foreign statutes of limitation, it may be remarked, that so little authority was thought due to the acts done in other states, that neither letters of administration, nor letters testamentary obtained in one state, have been deemed sufficient to authorise the bringing a suit in another. 1 Cranch. 282, 2 Cranch. 323.
    If the law of prescription of this state be the only one that can apply to the defendant’s case, the first enquiry is, whether any possession, in a foreign country will support this plea? I do not find any express decision on this point, and I believe it has not yet been litigated. We must therefore, apply to the words of our law, and endeavour to find its true construction. Civil Code, 98, art. 19.—Slaves are considered as immoveable by the operation of law, ibid. 486, art. 67, “a man who becomes possessed of an immoveable estate fairly, and honestly, and by virtue of a just title, may prosecute for the same, after the expiration of ten years, if the true proprietor resides in the territory, and after twenty years, in case the said proprietor resides abroad.”
    
      Article 74. “Slaves may be prosecuted for in half the time required for the prescription of immoveable estate, and in the same manner, and subject to the same rule.”
    Slaves, by these provisions, are put on the same footing with real estate, but a possession to give rise to a prescription of real estate must, from the necessity, be in the state, if therefore, the words of the Code are to be taken literally, the same kind of possession would be necessary, in the case of slaves. Is there any thing either in the contract, or in sound reasoning, which would lead us to a different construction? It is thought not. The latter member of the 67th article, above quoted, provides only for the two cases of the absence, or presence, of the true proprietor ; that of the defendant, or possessor, is not provided for, because the action being in rem, the plaintiff might always bring it, whether the defendant was absent or not. But this reason does not apply to a slave out of the state, when the true proprietor resides within; no suit could be brought, until the slave or the holder came within the jurisdiction of our courts, and therefore, it would seem both unjust and against the spirit of the law, to give effect to a prescription which the true proprietor could not have avoided, by bringing his action.—Poth. Ob. n. 678, gives us the reasons on which the prescription (of actions) is founded, which he says, are two—1. Presumption of payment: 2. As a penalty for negligence, in not prosecuting a right. The first of those reasons cannot apply in the case of a prescription, founded on possession; it must then be for the second reason, and for the obvious one, of the interest which every community has of protecting long possessions, that the prescription of this kind, here pleaded, was established. But the negligence, for which the party is to be punished, must surely be one which respects our own laws; so heavy a penalty would never be imposed to make our citizens vigilant with respect to the laws of other countries; but there can be no negligence imputed to a man, who has no opportunity of applying to the laws of his own country, and thus Pothier teaches us expressly, n. 679.— Il resulte de ce qui vient d’etre dit, que le temps de la prescription ne peut commencer a courir que du jour que le creancier a pu intenter sa demande; car on ne peut pas dire qù il a tardé a l’intenter tant qù il ne pouvoit pas l’intenter; dè la, cette maxime genérale sur cette matiere : contra non valentem agere, nulla currit prescriptio.
    As to the other reason, on which possessive prescription rests, the interests of the community, in securing long possessions, that can only apply to possessions acquired, and enjoyed under that community ; for one state has clearly no interest whatever, in protecting an unlawful possession, which was only of a few days duration, under its laws, although it might have been the interest of the country from which the possessor came, with the property, to have protected him in it, if it was of sufficient duration, while he remained with it, under the laws of that country. And our law, with respect to moveables, is founded on this principle, and strongly corroborates my reasoning. “If a man has had public and no tortious possession of a moveable thing, during three years, in the presence of the person who claims the property of the thing, said person being a resident of the territory is presumed to have known the circumstance. The property becomes vested in the possessor, unless the thing has been stolen.” Civil Code, 488, art. 75.
    Here we find, that to prescribe for a moveable, both parties must have been within the state, during the whole period of prescription. Now, though slaves are declared immoveables by law, no law can make them so by nature ; they are liable to be taken out of the territory and sold, which other immoveables are not; and it would seem very extraordinary, that a possession under such a sale, in a foreign country, should deprive the true owner of his property, even in cases where such possession may have had the duration required by our laws, to have had that effect, if the possession had been within the state. And if the construction, contended for, be the true one, our law gives greater protection to the owners of other moveables, than it does to those of slaves, which are, notwithstanding, placed in a higher class. If a man steal my horse, rides him out of the state, and there sells him, I may claim and recover him from the bona fide purchaser, if he bring him, after twenty years, again into the state; but the same operation performed with respect to my slave, deprives me of my property in him, if he be brought back after a lapse of only ten. This is an anomaly which ought not lightly to be introduced into our jurisprudence.
    In whatever light then, slaves may be considered, whether as immoveables or moveables, the prescription can only begin from the time the slave is brought within our jurisdiction, if moveable from the necessity of the case, because the possession of such property, if literally taken, must be within the jurisdiction. If moveable, from reason and the express words of our Code, the possession must be in the territory and in the presence of both parties.
    But, even if the possession in a foreign country, be considered as sufficient to establish a prescription, it must, at least, have been attended with the circumstances required by our law, both as to origin and duration.
    First, there must have been a continued possession for five years, in the presence, or ten years in the absence, of the parties, after the party became of age; and this possession must have been bona fide, and founded on a just title. The slave in question, was entrusted, as appears by the testimony, in 1803, by madame Broh, the plaintiff’s mother, to a Mr. Darginier, to carry to Charleston. There is no sale produced, either from him or from the owners; but a paper, purporting to be the copy of a sale, from Placide Bossa, to John Dastras and Mathew Dastras, jun.; was produced on the trial, and excepted to by the plaintiff, p. 27, document C. This copy is inserted in the record ; but, we argue, ought not to have been received, because it is not authenticated in the manner required by the act of congress. That act, vol. 3, (revised edition) 621, March 27, 1804, directs—1. That, “ as to records and exemplifications of office-books, not appertaining to any court, they must be authenticated ; first, by the attestation of the keeper of such records or books, and the seal of his office, if there be a seal-2. By the certificate of the governor, chancellor, &c. under the great seal, that the said attestation is in due form, and by the proper officer.”
    Now, without raising any question, whether this is such a record, or exemplification as is intended by this act ; two essentials to the introduction of this paper are wanting. It is not under the seal of the keeper of the records, from whence it purports to have been copied. Nor is the want of a seal supplied by any allegation, that there was none.
    Secondly, “the governor certifies under the great seal, that B. Elfie, who has signed the certificate, is deputy secretary of state, and that due faith, credit, and authority, ought to be given to his proceedings and certificates as such.” Yet he does not certify, that which the law expressly requires, and which is most essential for us to know, that his attestation is in due form, and that he is really the proper officer to certify copies of deeds.
    The governor might have given the same certificate of the act of a notary, a justice of the peace, or any other officer who had nothing to do with the records of deeds. And for ought that appears here, except from Mr. Elfie’s own certificate, we have no such proof with respect to him; besides, even supposing this to be full proof, that this is a copy of a a deed. What proof is there that such copy is good evidence in Carolina, without producing the original.
    This paper then ought not to have been admitted in evidence, and can form no foundation for a presumption.
    The next deed is from John Paul Dastras, by procuration of Mathew Dastras, to Michael Lazarus, dated October 2, 1817. This deed was produced in original, but was not (as we say) duly proved. It was authenticated by one witness, who swore to the hand writing of Villars, one of the subscribing witnesses ; the rule has been to admit this proof where the witness is abroad ; but it is only from a principle of convenience (and in some cases of necessity) where the witness’ residence is not known, and it is always stated to be, because the witness is not within the reach of process of the court; but in cases where the witness has been actually examined in the cause, the rule cannot apply. Here then was a commission to Charleston, and Villars was examined. It is true, he says, he signed, as a witness, a bill of sale of this slave to Lazarus, but he describes a very different one; he says it was from Paul Dastras—the deed produced is from John Paul Dastras; he says Paul Dastras was the owner, the deed is from John P. Dastras, as attorney for Mathew Dastras; but if he had described the deed accurately, it would not have been sufficient; it ought to have been exhibited to him, and his testimony in this form will no more avail the defendant, than if he had given the same testimony at the bar, without shewing him the deed. The rule seems to be established in the court of the united states, that it is only in cases where the testimony of the witness can not be had, that proof of his hand writing is to be received. Now, in this case his testimony not only could have been had, but actually was had, and would have been regular, had the deed been exhibited to him, and this neglect of the defendant can not be supplied by proving his hand writing, see 5 Cranch. 13, 14. Can our court follow a better authority in establishing rules of evidence, than the supreme court of the united states? The same objection lies to the proof of the remaining deed, from Lazarus to Jenkins, the present defendant.
    Besides the court cannot but be struck with a remarkable confusion, and even contradiction, in the testimony, with respect to the possessors of this negro.
    Mathew Dastras, who appears as one of the vendees of this negro, in the deed from Broh, and as the seller, by his attorney, John P. Dastras, in the deed to Lazarus, is examined as a witness ; and says, that the negro in question, was the property of Paul Dastras, but appears perfectly ignorant of John Dastras’s interest, and what is more extraordinary, of his own.
    It results then from this investigation, that no deed has been properly proved on the part of the defendant, and that of course, there is no foundation for the prescription, he has pleaded.
    The copy of the deed from Bossa, to Mathew and John Dastras, is totally informal, but if it had been produced, there is no regular claim, for the next deed is not from the grantees in the first.
    If the two last deeds should even be admited, the eldest only goes back to the year 1817, two years before the suit was brought, and as our law requires ten years, under a lawful title, between absentees, to found a prescription, these conveyances, if admitted, will be of no service.
    But suppose all the deeds proved, that the possession has been transferred, and that possession in a foreign country is sufficient, yet the defendant has not made out his title. He can on no principle, go further back than his pretended deed from Bossa, to the Dastras’s, the 26th May, 1806. Madame Broh died 1st January 1809, the difference is two years five months.
    The plaintiff was then an infant, being born in 1793. He was not of age then till 1814, say prescription began to run against him in the middle of that year, the suit being brought on the 15th of September, 1819.—There was against him five years.
    The whole time of prescription, seven years five months, allowing all their deeds; and, on a supposition, that all the points I have made should be decided against me.
   Porter, J.

The presiding judge of this court, has gone so fully into the case, in the opinion which he has prepared, that I shall confine my examination to what I consider the main question in the cause, and that is, whether the statute of limitations, of South-Carolina, has vested a title to the slave in the defendant.

This enquiry, I think, will be best conducted by pursuing the following divisions of the subject:—

1. Did the statute vest a title in South-Carolina?

2. Whether the owner of the property is bound by a law of this description, when it proved, that he did not reside in the country, where it was enacted?

3. Supposing the title to have vested, in the state where the statute was in force, is there any thing in our laws which prevents the defendant claiming the benefit of that title here?

I. The statute of South-Carolina, is an act of limitation, and from the perusal of it alone, it might be doubted, whether it was any thing more than a bar, which could be plead by the possessor, to an action in which the property was demanded. But it appears, that judicial interpretation of the act has held, that it vests title, and there is no doubt, from the decisions in that state, that there, the person claiming slaves, under the statute, could recover them in the hands of another, as well as plead the act to an action commenced. 2 Bay, 156, 425.

II. The next point, whether the plaintiff, not being a citizen, or resident of South-Carolina, can lose his right to property by a law of that country, is that which has presented the most difficulty to my mind.—If it had been shewn in this cause, that both parties were citizens of that state, I should have no doubt that both were bound by these laws, in virtue of which the one acquired, and the other lost a title to the property, and that the right thus acquired would not be destroyed by the removal of one of the parties into another country.

It is stated by Huberus, an eminent writer on the subject, that whoever makes a contract, in any particular place, is subject to the laws of the place, as a temporary citizen, 3 Dallas, 370, in note. The rule is held to apply, where a contract is made in one country, to be executed in another, and the law of that where the agreement is to be performed, will form the rule of action for the parties. Now, although it has not been shewn, that the plaintiff, or those under whom he claims, ever were residents or citizens of South-Carolina; or that they made any contract there, in relation to the property now sued for; yet enough, I think, has been proved, to enable us to apply, safely and correctly, the principles of law just stated to the case now before the court. For as the evidence establishes, that the slave in question was sent by the plaintiff’s mother into South-Carolina, under the care of an agent, this was a voluntary placing of her own property under these laws, to enjoy their protection; to take their advantages, if any in relation to it; and consequently, to bear with their inconveniences.

III. If the title set up here, was by sale, donation, exchange, or any other contract made in South-Carolina, we should hold it good here, if it was so in that state; and the only enquiry would be, did it vest title there? Prescription is a mode of acquiring property. Civil Code, 482, art. 32. Pothier, Traité de la Prescription, chap. 1, as strictly so as the cases of contracts just put. Digest, liv. 50, tit. 16, loi. 28. If in a common case of alienation, we hold it good and valid, because the laws of the country, where it was made, held it so; I cannot see any good reason to reject that of prescription; for it vests and divests title by the very same authority, which declares, that other species of contracts have that effect.

In some of our sister states, it has been held, that in a suit for the recovery of money, the law of limitation in the state where the suit is brought, must govern the rights of the parties, and not that, where the contract was made. There is a clear distinction in my mind, between cases of that description, when the statute is plead as a bar to the demand, and that now before the court, when it vests a complete title to a specific thing; for I have already stated, that I cannot distinguish between the title conferred by prescription, and that acquired by any other mode of alienation and acquisition. When the question does occur here, in a suit for money, it will be then time enough to examine, whether the law of this state, as it regards the limitation of actions, or that, where the parties contracted and lived, shall govern their rights; or if the decisions on this subject can be reconciled with the principles of law, or supported by the authorities on which they profess to rely.

I am therefore of opinion, that the judgment of the parish court be affirmed with costs.

Martin, J.

I have carefully considered the opinion, which judge Mathews has prepared. and is about to read, and perfectly concur with him.

Mathews J.

This suit is brought to recover from the defendant, a slave in his possession, claimed by the plaintiff, as sole heir to his mother, in whom he alleges title, at the time of her death.

The defendant relies on a title derived through several persons residing in South-Carolina, and on a right acquired by possession and prescription; judgment being for the defendant in the court below, the plaintiff appealed.

The evidence on the part of the appellant, which is entirely oral, establishes his heirship, as alleged, and shews that his mother had the slave in dispute, while she resided in the islands of St. Domingo and Cuba, from which latter place, she sent him to South-Carolina.

The acts of sale offered by the appellee, to support his title, were objected to by the counsel of the plaintiff, as not being sufficiently proven; and bills of exceptions regularly taken to the opinions of the judge of the court a quo, by which they were allowed to be given in evidence. But from the investigation which I have given to the cause, it is deemed unnecessary to examine those exceptions; as the testimony received without opposition, clearly establishes an uninterrupted and peaceable possession, of at least fifteen years duration, in the persons under whom the defendant claims.

Admitting that the evidence in the case proves title in the ancestor of the appellant, and that the defendant’s claim rests solely on a title, vested in those under whom he holds the slave, acquired by prescription; the first question to be diposed of, as stated by the plaintiff’s counsel, is, by what laws must the cause be decided, in relation to the title set up by the appellee? Those of South-Carolina, where the property was, or those of this state where the suit is commenced? I am of opinion, that the validity of this title, by prescription, ought to be ascertained and determined according to the laws of the former state: were it to be settled by our laws, on the subject, there would be little difficulty in deciding the case, as they could not operate on the slave in dispute, previous to his having been brought within the limits of the state; and this did not happen, as is shewn by the record, until a month or two before the commencement of the present action.

The law of South-Carolina, on which the defendant rests his title, is a statute of limitations; prescribing the period within which suits may be rightfully commenced in that state, having for their object and end, the same which is here sought by the plaintiff. The period of limitation is there, four years, for persons present, and one more is allowed to those who are absent, making five for the latter, and by the lapse of this time, their right of action is barred.

It is contended on the part of the appellant, that this law must be considered as relating only to the remedy, or relief grantable by courts of justice, and not to the right of property. In other words, that it is lex fori and not lex loci contractus; and that to the former species of laws, a foreign tribunal will give no effect. So far as they relate to the recovery of debts, from the cases cited in support of this doctrine, little doubt can remain of such being the practice adopted by the courts in several states of the union; and supported by the opinions of judges highly eminent, for talents and learning. Without admitting or denying the correctness of these decisions, as founded in justice, policy, and a proper comity between states. I think the case now under consideration, may be clearly distinguished from any which have been exhibited to the court. The questions in them decided, turned wholly on disputes about privileges, or a right to recover debts, barred by the laws of limitation which were in force, in the former residence of the contracting parties; and such laws are based solely on a presumption of payment. In no instance was there any contest relative to rights or title, vested in the possessor of property, as a necessary consequence, resulting from a statute of limitations which barred the claim of the owner.

Whatever might be my opinion, as to the force and effect which ought to be given to the laws of limitation, of a foreign state, in relation to the recovery of debts, I have no doubt, they may become the means of acquiring title, when they operate so as to prevent the proprietor from recovering his property, in consequence of an adverse possession.

Possession of things is prima facie evidence of right and title to them; and if it has been of such duration, that the laws of the country, where they are situated, will not allow the possessor to be disquieted. I do not think it, by any means, a forced and unfair construction of law, to decide, that title, absolute and indefeasible, is gained by such possession.—The owner, by neglecting to use the remedy accorded to him, loses his right, which the bona fide possessor acquires.

It is perhaps true, that fraud on his part, or excusable ignorance on the part of the proprietor, might require a different interpretation and application of the law of limitation. But in the present case, it cannot be pretended that either of them existed. The evidence shews that good faith accompanied the possession of the slave, in every change of master; and that he was sent by the plaintiff’s mother, to South-Carolina; so that she could not be ignorant of the laws under which he was placed, and her means of redress against adverse possessors.

This view of the subject places a law of limitation to an action, for the recovery of property, on a footing with the usucapio of the Roman system of jurisprudence, viz. a mean of acquiring property; nor am I able to discover any incongruity in the principles, on which these rules are founded—usucapio is defined in the R. Digest, to be adjectio dominii per continuationem possessionis, temporis lege definiti.—It was introduced for the public good, that the titles of property might not forever remain uncertain; after allowing sufficient time to the owners, to pursue their claims. D. 41, 3, 1 et s.

In the early periods of states, it may be considered as sound policy, to make the time for acquiring property by possession, of short duration. By the ancient Roman law, as contained in an article of the Twelve Tables, one year of possession was sufficient to save title to moveables, and two to immoveables, being what were termed res mancipii. In regard to incorporeal things, the Prœtor had established a prescription of ten and twenty years, or as it is called longi temporis. At first, under this prescription the possessor did not acquire the dominion of the thing, but only the benefit of an exception, or plea in bar, to any action brought by the proprietor. Afterwards the actio utilis was accorded to the possessor to recover the thing, when he had lost the possession, pour revendiquer la chose, as expressed by Pothier. The distinction between the res mancipii & nec mancipii, was abolished by the emperor Justinian, and usucapio and prescriptions longi temporis put on the same footing; this constitution, on this subject, it is believed, forms the basis of the laws, relating to prescription in those countries, which have founded their jurisprudence on the Roman law; and, in all of them, it is considered a mode of acquiring property. But it is seen, that even before this law of Justinian, an action had been accorded to a possessor, to recover property, of which he had lost possession; and this could only have been regular, on the principle, that he had acquired title by such possession.

Upon the whole, I am of opinion that laws limiting the time, within which actions ought to be commenced, for the recovery of property, may operate in such a manner, as to vest a title in a bona fide possessor, and that the law of South-Carolina has produced this effect in the present case.

It is therefore, ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.  