The instructions of the Court, asked for by defendant and given, are correct and applicable to the cause.
The Statutes of Limitations, as applied to lands, run as against a person claiming title to the same, and it is immaterial who is the occupant, or whether one succeeds to the occupancy or interest of another, or whether such succession be by deed or parol; if the occupation of the land is adverse and continuous so that no gap intervenes.
Under our statute the claimant must show affirmatively thathe or his ancestors, etc., have been in possession within five years, and must show a legal title in fee simple, not a mere prior possession. (Vanderslice v. Hanks , 3 Cal. 27.)
It has already been decided by this Court that a title under a Spanish grant cannot be pleaded until after their final confirmation.
JUDGES: The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Chief Justice Murray concurred.
OPINION
HEYDENFELDT, Judge
This is an action of ejectment, and the defense rests upon the Statute of Limitations. The 6th section of the Act of April, 1850, limits the time for commencing actions for the possession of lands to five years. Another Act was passed in April, 1855, amendatory of the first Act, by which the 6th section referred to, was amended and re-enacted.
The only question to be determined is whether the 6th section of the first Act remained in force as a part of that Act so as to fix the time when the statute commenced to run, or whether the time must date alone from the passage of the amendatory Act. It is here necessary to observe that the amendment of the 6th section takes nothing from that section as it originally stood, but only adds a proviso, which in no manner affects the operation of the section in the present case, provided it is still in force.
According to the ordinary construction of statutes, a mere amendment would not have the effect of changing the operation of the Act amended as to time, except so far as the alteration itself is concerned; but under our Constitution a new rule was adopted for the amendment of statutes, totally different from that which had before prevailed. Section 25 of Art. 4, ordains that " no law shall be revised or amended by reference to its title; but in such case the Act revised or section amended, shall be re-enacted and published at length."
From this language it appears too clear to require argument, that if a statute or section of a statute is re-enacted, it is totally inconsistent with the idea that the old statute or section still remains in force, or has vitality for any purpose whatever.
The re-enactment creates anew the rule of action, and even if there was not the slightest difference in the phraseology of the two, the latter alone can be referred to as the law, and the former stands to all intents as if absolutely and expressly repealed.
It follows, necessarily, that the defense to this action cannot be maintained, and the judgment is therefore reversed and the cause remanded.