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LAWS OF CALIFORNIA.
I.-ACTION, CIVIL, LIMITATION OF. ARTICLE 1. Action, to be commenced within the periods pre- 18. Action on account. scribed.
19. Other action for relief. 2. Same,
20. Limitations, to what actions to apply. 3. By state, for real property.
21. Action, when deemed commenced. 4. Under patent, etc.
22. Where defendant is out of the state at the time 5. After patent declared void.
cause of action accrued. 6. For recovery of real property.
23. Limitation, when not to run. 7. Sarne.
24. Action by representative of deceased. 8. Where peaceable entry has been made.
25. Action by alien enemy. 9. Where adverse possession is held.
26. Where judgment is reversed. 10. Where entry was made under a conveyance, etc. 27. Where action stayed by injunction, etc. 11. Adverse possession defined.
28. Disability, must exist when right of action accrued. 12. Same.
29. Where two or more disabilities co-exist. 13. Same.
30. Action, against corporations to recover a penalty, 14. Where the relation of landlord and tenant exists.
etc. 15. Dexcept cast, not to impair right of possession, 31, Acknowledgement, etc. must be in writing. 16. Disabilities, time not to run during certain. 32. Action, on instrument executed out of the state. 17. Limitation of actions other than for recovery of 33. When action barred where cause arose. real property.
34. Action, on judgment, etc. made out of the state. Act of April 22, 1850, defining Time of Commencing Civil Actions. ARTICLE 1, Sec. 1. Civil actions can only be commenced within the periods prescribed in this act, after the cause of action shall have accrued, except where a different limitation is prescribed by statute.
Art. 2, Sec. 2. When the cause of action has already accrued, the party entitled and those claiming under him shall have, after the passage of this act, the whole period herein prescribed, in which to commence an action.
Art. 3, Sec. 3. The people of this state will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless : 1. Such right or title shall have accrued within ten years before any action or other proceeding for the same shall be commenced, or unless, 2. The people, or those from whom they claim, shall have received the rents and profits of such real property, or of some part thereof, within the space of ten years.
ART, 4, Sec. 4. No action shall be brought for or in respect to real property by any person claiming by virtue of letters patent or grants from this state, unless the same might have been commenced by the people, as herein specified, in case such patent or grant had not been issued or made.
ART. 5, Sec. 5. When letters patent or grants of real property shall have been issued or made by the people of this state, and the same shall be declared void by the determination of a competent court, rendered upon an allegation of a fraudulent suggestion, or concealment, or forfeiture, or mistake, or ignorance of a material fact, or wrongful detaining, or defective title, in such case an action for the recovery of the premises so conveyed may be brought either by the peo
ple of this state, or by any subsequent patentee or grantee of the same premises, his heirs or assigns, within five years after such determination was made, but not after that period.
Art. 6, Sec. 6. No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff
, his ancestor, predecessor or grantor, was seized or possessed of the premises in question, within five years before the commencement of such action; provided, however, that an action may be maintained by a party claiming such real estate, or the possession thereof, under title derived from the Spanish or Mexican Governments, or the authorities thereof, if such action be commenced within five years from the time of the final confirmation of such title by the government of the United States, or its legally constituted authorities.-[Am. April 11, 1855, R. S. St. 1850, 344, C. L. 816.(1)
Art. 7, Sec. 7. No cause of action, or defense to an action, founded upon title to real property, or to rents, or to services out of the same, shall be effectual, unless it appear that the person prosecuting the action, or making the defense, or under whose title the action is prosecuted, or the defense is made, or the ancestor, predecessor, or grantor of such person, was seized or possessed of the premises in question, within five years before the commencement of the act, in respect to which such action is prosecuted, or defense made, or unless it appear that the title to such premises was derived from the Spanish or Mexican Governments, or that the same was confirined by the government of the United States, or its authorities, within five years before the commencement of such action.—[Am. April 11, 1855, R. S. St. 1850, 344, C. L. 816.
Art. 8, Sec. 8. Any peaceable entry upon real estate shall be deemed sufficient and valid as a claim, unless an action be commenced by the plaintiff in ejectment, within one year after the making such entry; or within five years from the time when the right to bring such action accrued, or within five years after the final confirmation by the United States of any title derived from Spain or Mexico.-[Am. April 11, 1855, R. S. St. 1850, 344, C. L. 816.
Art. 9, Sec. 9. In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the premises, shall be presumed to have been possessed thereof, within the time prescribed by law, and the occupation of such premises by any other person shall be deemed to have been under, and in subordination to the legal title, unless it appear that such premises have been held and possessed adversely to such legal title, for five years before the commencement of such action.
Art. 10, Sec. 10. Whenever it shall appear that the occupant, or those under whom he claims, entered into the possession of premises, under claim of title, exclusive of any other right, founding such claim upon a written instrument, as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree, or judgment, or of some part of such premises, under such claim, for five years, the premises so included shall be deemed to have been held adversely, except that where the premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract.
Art. 11, Sec. 11. For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument, or a judgment or decree, land shall be deemed to have been possessed and occupied in the following cases: 1. Where it has been usually cultivated or improved. 2. Where it has been protected by a substantial inclosure. 3. Where (although not inclosed) it has been used for the supply of fuel, or of fencing timber, for the husbandry; or for the use of pasturage, or for the ordinary use of the occupant.
purposes of (1) Billings v. Harvey & Tibbetts, Oct. T. 1856; Billings v. Hall, Jan. T. 1857.
4. Where a known lot or single farm has been partly improved, the portion of such farm or lot that may have been left not cleared, or not inclosed according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated.
Art. 12, Sec. 12. Where it shall appear that there has been an actual continued occupation of premises, under a claim of title, exclusive of any other right,
, but not founded upon a written instrument, or a judgment, or decree, the premises so actually occupied, and no other, shall be deemed to have been held adversely.
Art. 13, Sec. 13. For the purpose of constituting an adverse possession, by a person claiming title not founded upon a written instrument, judgment or decree, land shall be deemed to have been possessed and occupied in the following cases only: 1. Where it has been protected by a substantial inclosure. 2. Where it has been usually cultivated or improved.
Art. 14, Sec. 14. Whenever the relation of landlord and tenant shall have existed between any persons, the possession of the tenant shall be deemed the possession of the landlord until the expiration of five years from the termination of the tenancy, or where there has been no written lease, until the expiration of five years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. But such presumptions shall not be made after the periods herein limited.
Art. 15, Sec. 15. The right of a person to the possession of any real property shall not be impaired or affected by a descent being cast in consequence of the death of a person in possession of such property.
Art. 16, Sec. 16. If a person entitled to commence any action for the recovery of real property, or to make an entry or defense, founded on the title to real property, or to rents or services out of the same be, at the time such title shall first descend or accrue, either : 1. Within the age of twenty-one years; or, 2. Insane; or, 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life; or, 4. A married woman. The time during which such disability shall continue shall not be deemed any portion of the time in this act limited for the commencement of such action, or the making of such entry or defense, but such action may be commenced, or entry or defense made, within the period of five years after such disability shall cease, or after the death of the person entitled, who shall die under such disability ; but such action shall not be commenced, or entry or defense made, after that period.
Art. 17, Sec. 17. Actions, other than those for the recovery of real property, can only be commenced as follows: Within five years-An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States. Within four years—An action upon any contract, obligation, or liability founded upon an instrument of writing, except those mentioned in the preceding section. Within three years—1. An action upon a liability created by statute, other than a penalty or forfeiture. 2. An action for trespass upon real property. 3. An action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property. 4. An action for relief on the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud. Within two years-1. An action upon a contract, obligation, or liability, not founded upon an instrument of writing, except an action on an open account, for goods, wares and merchandise, and an action for any article charged in a store account. 2. An action against a sheriff
, coroner or constable, upon the liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty, including the non-payment of
money collected upon an execution. But this section shall not apply to an action for an escape. Within one year : 1. An action upon a statute for a penalty or forfeiture, where the action is given to an individual, or to an individual and the state, except where the statute imposing it prescribes a different limitation. 2. An action for libel, slander, assault, battery, or false imprisonment. 3. An action upon a statute for a forfeiture or penalty to the people of this state. 4. An action against a sheriff, or other officer, for the escape of a prisoner, arrested or imprisoned on civil process. 5. An action on an open account, for goods, wares and merchandise, sold and delivered. 6. An action for any article charged in a store account.
Art. 18, Sec. 18. In an action brought to recover a balance due upon a mutual, open and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side.
Art. 19, Sec. 19. An action for relief, not hereinbefore provided for, must be commenced within four years after the cause of action shall have accrued.
Art. 20, Sec. 20. The limitations prescribed in this chapter,(1) shall apply to actions brought in the name of the state, or for the benefit of the state, in the same manner as to actions by private parties.
Art. 21, Sec. 21. An action shall be deemed to be commenced within the meaning of this act when the complaint has been filed in the proper court.
Art. 22, Sec. 22. If, when the cause of action shall accrue against a person, he is out of the state, the action may be commenced within the term herein limited, after his return to the state; and if, after the cause of action shall have accrued, he depart the state, the time of his absence shall not be part of the time limited for the commencement of the action.
Art. 23, Sec. 23. If a person, entitled to bring an action other than for the recovery of real property, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, be at the time the cause of action accrued, either : 1. Within the age of twenty-one years; or, 2. Insane ; or, 3. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court, for a term less than his natural life ; or, 4. A married woman : the time of such disability shall not be a part of the time limited for the commencement of the action.
Art. 24, Sec. 24. If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time, and within six months from his death. If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his executors or administrators after the expiration of that time, and within one year after the issuing of letters testamentary, or of administration.
Art. 25, Sec. 25. When a person shall be an alien subject, or citizen of a country at war with the United States, the time of the continuance of the war shall not be a part of the period limited for the commencement of the action.
Art. 26, Sec. 26. If an action shall be commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed on appeal, the plaintiff
, or if he die and the cause of action survive, his heirs or representatives, may commence a new action within one year after the reversal.
Art. 27, Sec. 27. When the commencement of an action shall be stayed by injunction or statutory prohibition, the time of the continưance of the injunction or prohibition shall not be part of the time limited for the commencement of the action.
(1) Articles 17, 18 and 19.
Art. 28, Sec. 28. No person shall avail himself of a disability, unless it existed when his right of action accrued.
Art. 29, Sec. 29. When two or more disabilities co-exist at the time the right of action accrues, the limitation shall not attach until they all be removed.
Art. 30, Sec. 30. The preceding sections of this act shall not affect actions against directors or stockholders of a corporation to recover a penalty or forfeiture iinposed, or to enforce a liability created by law; but such actions must be brought within three years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached, or the liability was created.
Art. 31, Sec. 31. No acknowledgement or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this statute, unless the same be contained in some writing signed by the party to be charged thereby.
Act of May 4, 1852, defining the Time of Commencing Civil Actions in certain cases. Art. 32, Sec. 1. An action upon any contract, obligation or liability for the payment of money, founded upon an instrument of writing executed out of this state, can only be commenced as follows : 1. Within one year, when more than two and less than five years have elapsed since the cause of action accrued. 2. Within six months, when more than five years have elapsed since the cause of action accrued.
Art. 33, Sec. 2. When the cause of action has arisen in another state or a territory of the United States, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, no action thereon shall be maintained against him in this state. (1)
Supplement of April 2, 1855. ART. 34, Sec. 1. An action upon any judgment, contract, obligation or liability for the payment of money or damages obtained, executed' or made out of this state, can only be commenced within two years from the time the cause of action has accrued or shall accrue. Por limitation of criminal actions, see Courts of Justice, Criminal Practice. Ejectment--Land, Art. 2755.
JUDICIAL DECISIONS. 1. If a defendant fail to plead the statute of limitations at the proper time, he will not be permitted to szend his answer so as to introduce the plea, unless it be in furtherance of justice. Cooke v. Spears, 2 Cal. 409.
2. The plea of the statute of limitations is not favored, unless in aid of justice; but the court should allow it to be pleased at any time when justice will be attained thereby. Id. When the plea of the statute is claimed as a mere legal right it must be pleaded in the first instance, and has no day of grace thereafter. Id.
2. Accounts - certified and approved" are “instruments of writing," and are not barred by that portion of the statute applying to accounts. Sannickson v. Brown, 5 Cal. 57.
4. Where an appeal is taken from the judgment, the statute commences running from the date of the remittitur from the supreme court. Dewey v. Latson, April T. 1856.
5. An appeal prevents the running of the statute. Castro v. Castro, April T. 1856. 6. Limitation of mining claims. Davis v. Butler, Oct. T. 1856.
7. Acts of limitation affect the remedy and not the right, and have no retrospect beyond their passage. Billings tt. Hall, Jan. T. 1857.
8. The amendment of 1855 repeals section 6th of the act of 1850, and the time only begins to run from the date of the last act. Billings v. Hall, Jan. T. 1857.
9. The amendment does not divest rights vested, for statutes of limitation affect the remedy and not the right, therein differing from prescription, which confers a right. Id.
10. Where a judgment by confession, in another state, was opened, and trial had, and judgment again rendered for plaintiff, the statute of limitations of this state, in a suit on the judgment, only commenced to run from the final entry of judgment. Parke v. Williams, Jan. T. 1867.
Judgment-Cavender d. Guild, 4 Cal. 250; Ray v. Patten, 4 Cal. 287. Contribution-Sherwood o. Dunbar, Jan. T. 1856.
II.-ACTS, EFFECT, AUTHENTICATION AND REPEAL OF, ETC. ARTICLE
ARTICLE 35. Acts and joint resolutions, when to take effect. 37. Bills remaining ten days in governor's hands and 2. Bills returned without signature of governor, how not returned, how authenticated. authenticated.
38. Reviving repealed acts. (1) Nelson v. Nelson, Oct. T. 1856.