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December 1, 1855


THIS case came up by writ of error, from the circuit court of the United States for the district of Missouri. The case is stated in the opinion of the court. It was argued by Mr. Crittenden, for the plaintiffs in error, and Mr. Geyer, for the defendants. Those of Mr. Crittenden's points, which were included in the decision of the court, were the two following:–– 1. Because the judgments themselves were void, so far as they related to, or affected the lands, tenements, or hereditaments of the intestate; or, if not, that the executions issued thereon, dated respectively, the 28th of February, and 9th of April, 1821, under or in virtue of which the sheriff sold the land in question, were illegal, null and void, because issued before the expiration of eighteen months from the date (1st of November, 1819,) of the letters of administration of the estate of said intestate, and were therefore issued in direct violation of the express provisions of the before-recited act of the 25th of January, 1817; 8 Metcalf, 502. 2. Because the sale, in virtue of which said deed purports to have been executed, was made on the 1st day of May, 1821, and before the expiration of eighteen months from the date, (1st of November, 1819,) of the said letters of administration, contrary to the express terms of the said act of 1817, and was, therefore, illegal and void. The only questionable part of this proposition is, whether the 1st of May, 1821, is a day after the expiration of eighteen months from the 1st of November, 1819, or included in, and part of the period. The reasonable and legal rule of computation of time in such cases, is to exclude the first day, that is, the day of the event or act from which the computation is to be made. It is but the fraction of a day, and the law takes no notice or account of it. This is believed to be the rule as now settled by judicial discussions in Missouri. Gantly v. Ewing, 3 How. 707; Kennon v. Osgood, 19 Mo. R. 60; Blaine v. Beehler, 12 Mo. R. 477. Upon the principal point in the case, Mr. Geyer said:–– The sale was made on the 1st of May, 1821, which was after the expiration of eighteen months, from the death of the intestate, or the date of the letters of administration, (1st of November, 1819,) construing the act of 1817 according to the rules and principles which have been recognized and applied in analogous cases. It has been laid down in many cases as a general rule, that where time is to be computed from an event or an act, the day of the event or the performance of the act is to be included. Norris v. The Hundred of the Gawthry, Hobart, 139; King v. Adderly, Douglass, 463; Castle v. Burdett, 3 Term R. 623; Glassington v. Rawlings, 3 East, 407; Priest v. Tarlton, 3 N. H. Rep. 93; Thomas v. Afflick, 16 Pa. R. 14; Robinet v. Compton, 2 La. An. R. 856; Pierpoint v. Graham, 4 Wash. C. C. Rep. 232; Arnold v. United States, 9 Cranch, 104. In some cases, the rule has been held to be, to exclude the day of the act or event from the computation; in others, the day has been excluded without laying down any general rule. King v. Cumberland, 4 Nov. and M. 375; Judd v. Fulton, 10 Barl. 117; Wing v. Davis, 7 Maine, 31; Ex parte v. Deane, 2 Cowen, 605; Cornell v. Moulton, 3 Denio, 12; Snydor v. Warren, 2 Cowen, 518; S. B. Mary Blane v. Beehler, 12 Mo. R. 477; Kimm v. Osgood's Administrators, 19 Mo. R. 60. But it has been denied that there is any general rule, that the day of the act or event from which time is to be computed is to be included or excluded, and held that whether it is to be taken inclusive or exclusive, depends upon the reason of the thing, the context, and subject-matter. Lester v. Garland, 15 Vesey, Jr., 248; Dowling v. Foxall, 1 Ball & Bealty, 196; Windsor v. China, 4 Maine, 298; Bigelow v. Wilson, 1 Peck, 485; Presbury v. Williams, The opinion of the court was delivered by: Mr. Justice Grier delivered the opinion of the court.

The plaintiffs claim the land which is the subject of controversy in this suit, as heirs of Isaac W. Griffith, who died seised of the same in 1819. His estate was insolvent. Judgments were obtained against his administrators in 1820, executions were issued thereon, and the property sold by the sheriff. The defendants claim under the purchaser at this sale.

On the trial, the court below instructed the jury 'that the sheriff's deed, read in evidence under the judgments and executions also in evidence, was effectual to devest the title of the heirs of Isaac H. Griffith to the land mentioned in said deed.'

It is admitted, that in the State of Missouri the lands of a deceased debtor may be taken in execution, and sold by the sheriff, in satisfaction of a judgment against the administrator. And also that such deed vests in the purchaser all the estate and interest which the deceased had in the property at the time of his death. But it is alleged that this sale is 'without authority of law and void,' because the execution was issued and sale made before the time limited for stay of execution against the real estate of a decedent. The law and the facts, on which this objection to the validity of the sale is founded, are as follows:

By an act of 1817, it is provided that 'all lands, tenements, and hereditaments shall be liable to be seized or sold upon judgment and execution obtained against the defendant or defendants, in full life, or against his or her heirs, executors, or administrators, after the decease of the testate, or intestate; provided, no such land, tenements, or hereditaments, shall be seized and sold until after the expiration of eighteen months from the death of such ancestor, or the date of the letters testamentary or letters of administration, and execution may issue against such lands, tenements, and hereditaments, after the death, testate or intestate, and after the time aforesaid, in the same manner as if such person were living.'

The letters of administration on the estate of Girffith are dated on the 1st of November, 1819. The sale was made by the sheriff on the 1st of May, 1821, on executions previously issued.

It is contended that the term of eighteen months from the 1st of November, 1819, had not expired on the 1st of May, 1821, and consequently the sale was without authority of law, and void.

But we are of opinion that the assumption on which this inference is based, is not correct; nor the inference correct, if the assumption were granted.

If the day on which the letters of administration be counted in the calculation, the term of eighteen months had 'expired' on the 1st of May, 1821.

Whether the terminus a quo should be so included, it must be admitted, has been a vexed question for many centuries, both among learned doctors of the civil law and the courts of England and this country. It has been termed by a writer on civil law (Tiraqueau) the controversia controversissima.

In common and popular usage, the day a quo has always been included, and such has been the general rule both of the Roman and common law. The latter admits no fractions of a day; the former, in some instances, as in cases of minority, calculated de momento en momentum. The result of this subdivision was to comprehend a part of the terminus a quo. But in cases where fractions of a day were not admitted, as in those of usucaption or prescription, a possession commencing on the 1st of January, and ending on the 31st of December, was counted a full year. It was in consequence of the uncertainty introduced on this subject by the disquisitions and disputes of learned professors, that Gregory IX., in his decretals, introduced the phrase of 'a year and a day,' in order to remove the doubts thus created, as to whether the dies a quo should be included in the term. It thus maintained the correctness of the common usage, while it satisfied the doubts of the doctors.

The earlier cases at common law show the adoption of the popular usage as the general rule, but many exceptions were introduced in its application to leases, limitations, &c., where a forfeiture would ensue. But the cases are conflicting, and have established no fixed rule as to such exceptions. Lord Mansfield reviews the cases before his time, in Pugh v. Leeds, Cowp. 714, and comes to the conclusion 'that the cases for two hundred years had only served to embarrass a point which a plain man of common sense and understanding would have no difficulty in construing.'

The rule he lays down in that case is, 'that courts of justice ought to construe the words of parties so as to effectuate their deeds, and not destroy them; and that, 'from' the date, may in vulgar use, and even in strict propriety of language, mean either inclusive or exclusive.'

It would be tedious and unprofitable to attempt a review of the very numerous modern decisions, or to lay down any rules applicable to all cases. Every case must depend on its own circumstances. Where the construction of the language of a statute is doubtful, courts will always prefer that which will confirm rather than destroy any bon a fide transaction or title. The intention and policy of the enactment should be sought for and carried out. Courts should never indulge in nice grammatical criticism of prepositions or conjunctions, in order to destroy rights honestly acquired.

In the present case there is no reason for departing from the general rule and popular usage of treating the day from which the term is to be calculated, or 'terminus a quo,' as inclusive. The object of the legislature was to give a stay of execution for eighteen months, in order that the administrator might have an opportunity of collecting the assets of the deceased and applying them to the discharge of his debts. The day on which the letters issue may be used for this purpose as effectually as any other in the year. The rights of the creditor to execution are restrained by the act, for the benefit of the debtor's estate. The administrator has had the number of days allowed to him by the statute to collect his assets and pay the debts. The construction which ...

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