# Stanley v. Schwalby (147 U.S. 508)/Dissent Field

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* Dissenting Opinion Field
United States Supreme Court
147 U.S. 508
Stanley v. Schwalby
Mr. Justice FIELD, dissenting.
I am unable to agree with the majority of the court in the judgment rendered in this case, or in the reasons upon which it is founded. The action is styled one of trespass to try title. It is, in fact, the form adopted in Texas to determine the title to real property in controversy, and the principles governing ejectments govern their disposition. It was commenced in a district court of the state of Texas, in the county of Bexar.
The petition, the first pleading in the action, alleges that Mary U. Schwalby, who is herein joined by her husband, was, on the 1st of February, 1889, lawfully seised of certain described premises in the county of Bexar, holding the same in fee simple, and entitled to the possession thereof; that afterwards, on the 2d of February, the defendants unlawfully entered upon the premises, and dispossessed her therefrom, and withhold them from her, setting out a description of the premises in full. The petition concludes with a prayer that the plaintiff may have judgment for the recovery and possession of the premises and for costs.
The premises were a part of a military reservation of the United States in Texas, and were occupied as a military post. The defendant David S. Stanley and his codefendants were officers of the army of the United States, and as such were in possession of and held the land, and, answering for himself and them, he says that as individuals they do not claim, and have no title to, the land in controversy, but claim that they are lawfully in possession thereof as officers and agents of the United States, and that the United States 'holds in herself' complete title to the property in controversy, and that the defendant, as an officer of the United States in possession, enters a plea of not guilty to the trespasses and allegations charged in the petition.
The designation thus given to the United States as 'herself' in a pleading drawn by one of their attorneys is open to * one of their attorneys is open to criticism, the Civil War, the United States have always been designated in the plural; thus, article 3, § 3, declares that 'treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort;' and article 13, adopted since the Civil War, declares that 'neither slavery nor involuntary servitude, except as a punishment for clime, whereof the party shall have been duly convicted, shall exist in the United States, or any place subject to their jurisdiction.'
In the amended answer filed by the defendants they pleaded not guilty, and alleged that they had lawful possession of the property as officers and agents of the United States, which had title and right of possession since 1875 under conveyance duly recorded, and that they were innocent purchasers for a valuable consideration, without notice of any outstanding title. They also pleaded specially the 3-years, the 5-years, and the 10-years statutes of limitations, and set up a claim for allowance for permanent and valuable improvements.
I fully agree with the court that, if this action had been brought directly against the United States, it could not be sustained, for it is among the axioms of the law that the government, state or national, is not amenable to civil process at the suit of a private citizen, except upon its consent to submit to such jurisdiction. Any judgment rendered in proceedings not voluntarily assented to would necessarily be void, whether the judgment be rendered for money or specific property. It may be doubted whether the appearance in this case of the United States by a district attorney, without further evidence of their assent to the process, is sunicient. The answer of the United States that they appear by the district attorney, under instructions of the attorney general of the United States, the supreme court of Texas held to be insufficient, as the instructions of that officer did not appear in the record, and there was no act of congress authorizing him to make the United States a party to the action in the state court. That court, therefore, reversed the judgment of the lower court, and dismissed the action so far as it was against the United States. It also held that the United States could not plead the statute of limitations. In this decision I think that court was clearly right, and, although this court does not expressly approve that doctrine, it would seem from its language that it might be implied that the United States could plead the statute. From any such implication I emphatically dissent. The whole theory upon which statutes of limitation are founded, whether for the repose of litigation, or upon presumption of performance, from lapse of time, of the obligations alleged, or from other causes, is that during the period prescribed by the statute the party has had full right, without legal hindrance, to prosecute his demand against the party invoking the bar of the statute, and has failed to do so. As justly observed by the court below, 'it would be contrary to reason to hold that it was the intention of the lawmaking power that a right should be barred by failure to bring an action within a prescribed time, when, at the same time, the right to bring the action was denied.'
Now, no such bar can be pleaded by the United States, for the reason that no action can be instituted against them without their express consent. They can have no occasion to plead such a statute, because they can always insist upon their immunity from judicial process. If they assent to the action, they, of course, do not wish the benefit of such a statute.
The cases where the government, state or national, without being named, may invoke the benefit of a law passed for priviate parties, applies to a very different class of cases from the one before us. A specified time for presenting claims against the government may be prescribed by statute, but we may look in vain for cases like the one before us, in which the government, not being suable during the time prescribed by statute, may interpose the lapse of time as a bar to an action whenever it is subsequently permitted.
But it is admitted that in cases where officers of the army, or agents of the government, state or national, are in possession of real property, holding it for either of them, they cannot, in an action for its recovery, rely upon their agency or official character under the government as a justification of their possession, without showing a title in the government. They must show in that way their right to the possession under that title. The case of U.S. v. Lee, 106 U.S. 196, 1 Sup. Ct. Rep. 240, is sufficient authority on this point. Referring to that case, in Re Ayers, 123 U.S. 453, 501, 8 Sup. Ct. Rep. 164, this court said: 'In that case the plaintiffs had been wrongfully dispossessed of their real estate by defendants, claiming to act under the authority of the United States. That authority could exist only as it was conferred by law, and, as they were unable to show any lawful authority under the United States, it was held that there was nothing to prevent the judgment of the court against them as individuals for the individual wrong and trespass.' See, also, Cunningham v. Railroad Co., 109 U.S. 446, 452, 3 Sup. Ct. Rep. 292, 609. Establishing the title of the government, and thus showing their own possession under the government to be rightful, the action will be defeated. But the officers or agents cannot plead the statute of limitations in their own behalf if they hold under the United States, and in maintaining a different doctrine there is, in my opinion, a plain error in the decision of the court. The action of ejectment or of trespass to try title necessarily implies the wrongful possession of the defendant. He can only defeat that position by showing title or ownership in the party under whom he holds or in himself. But how can he show title or ownership in himself? If he has a title by deed, which he can trace back beyond the claim of the plaintiff, he can do so; but, if he relies upon the statute, he must show adverse possession of the property in himself for the period prescribed. To render his possession adverse it must be accompanied by a claim of title or ownership in himself as against the whole world. It must be exclusive and continuous, and not referable to any other claimant. If the defendant admits that any other person, or that the government, has the title or owns the property at any time within the period of prescription, his adverse possession, on which alone he can rely, fails, and his claim of right to the property is defeated. This doctrine is sustained by the whole current of authorities in the English and American courts, as will be seen by reference to the treatise on the statute of limitations by Angell, and also to the one by Buswell, under the chapters on 'Adverse Possession,' where the adjudged cases are cited. See, also, Sedg. & W. Tr. Tit. Land, §§ 729-740; and Doswell v. De La Lanza, 20 How. 29; Melvin v. Proprietors, 5 Metc. (Mass.) 15; Ward v. Bartholomew, 6 Pick. 409; and Adams v. Burke, 3 Sawy. 420.
The statute of Texas prescribing the limitations of actions for the recovery of real property is not materially different, except in the periods designated, from the statutes of limitations of other states. It provides that every suit to recover real estate, 'as against any person in peaceable and adverse possession thereof under title or color of title, shall be instituted within three years next after the cause of action shall have accrued, and not afterwards.' 'Peaceable possession' is described as 'such as is continuous, and not interrupted by adverse suit to recover the estate.' 'Adverse possession' is defined as being 'an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.'
If the defendants cannot show title in the party under whom they hold, or in themselves, they are trespassers against the real owner, whether they claim under the government or a private party; and the doctrine that if they hold under the government, the title to which is not established, they can be allowed to set up adverse possession in themselves, or, in other words, to plead the statute of limitations, when they expressly disavow any claim or title to the property, upon the assertion of which alone such adverse possession can be maintained or the statute made available, is, in my judgment, in conflict with well-settled principles, and the whole course of judicial decisions in England and in every state of the Union. The defendants, by their own admissions, are not in a position to set up any such defense.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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