and parol evidence is admissible to show that it was intended as a mortgage, or that the defeasance was omitted by fraud or mistake." Upon this class of mortgages it has been held that the statute does not begin to run until a tender of the money which it was given to secure, and a refusal to reconvey. But there is no question but that a court of equity would refuse to enforce a right to redeem, where the grantee had slept upon his rights until his claim had become stale. 1 Babcock v. Wyman, 19 How. (U. S.) 289; Rogan v. Walker, 1 Wis. 527; Bishop v. Bishop, 13 Ala. 475; Bryan v. Cowart, 21 Ala. 92; Blakemore v. Byrnside, 7 Ark. 505; Jordon v. Fenno, 13 Ark. 593; Pierce v. Robinson, 13 Cal. 116; Jones v. Jones, 1 Head (Tenn.), 105; Guinn v. Locke, id. 110; People v. Irwin, 14 Cal. 428; Johnson v. Sherman, 15 Cal. 287; Cunningham v. Hawkins, 27 Cal. 603; Hopper v. Jones, 29 Cal. 18; Trucks v. Lindsey, 18 Iowa, 504; Jackson v. Lodge, 36 Cal. 28; Washburn v. Merrill, 1 Day (Conn.), 139; Marks v. Pell, 1 Johns. (N. Y.) Ch. 594; Collins v. Tillon, 26 Conn. 368; Hovey v. Holcomb, 11 Ill. 660; Shaver v. Woodward, 28 Ill. 277; Roberts v. McMahan, 4 Greene (Iowa), 34; Green v. Ball, 4 Bush (Ky.), 586; Whitney v. Batchelder, 32 Me. 313; Emerson v. Atwater, 7 Mich. 12; Johnson v. Huston, 17 Mo. 58; Carlyon v. Lannan, 4 Nev. 156; Condit v. Tichenor, 19 N. J. Eq. 43; Crane v. Buchanan, 29 Ind. 570; Key v. McCleary, 25 Iowa, 191; Phoenix v. Gardner, 13 Minn. 430; Bingham v. Thompson, 4 Nev. 224; Walton v. Cronly, 14 Wend. (N. Y.) 63; Swart v. Service, 21 id. 36; Webb v. Rice, 1 Hill (N. Y.), 606; Hodges v. Tennessee, &c. Ins. Co., 8 N. Y. (4 Seld.) 416; Kimborough v. Smith, 2 Dev. (N. C.) Eq. 558; Couch v. Sutton, 1 Grant (Penn.) Cas. 114; Patterson v. Horn, id. 301, 304; Stamper v. Johnson, 3 Tex. 1; Mead v. Randolph, 8 Tex. 191; Hannay v. Thompson, 14 Tex. 142; Mann v. Falcon, 25 Tex. 271; Plato v. Roe, 14 Wis. 453. See Fitzpatrick v. Smith, 1 Desau. (S. C.) 340. To the contrary, Hale v. Jewell, 7 Me. 435; Bryant v. Crosby, 36 id. 562; Watson v. Dickens, 20 Miss. 608. 2 Taylor v. Luther, 2 Sumn. (U. S. C. C.) 228; Morris v. Nixon, 1 How. 118; Slee v. Manhattan Company, 1 Paige (N.Y.) Ch. 48; Whitrick v. Kane, 1 id. 202; Van Buren v. Olmstead, 5 id. 1; Strong v. Stewart, 4 Johns. (N. Y.) Ch. 167; Ross v. Norvell, 1 Wash. Va. 14; Anon., 2 Hayw. (N. C.) 26; McLaurin v. Wright, 2 Ired. (N. C.) Eq. 94; Hudson v. Isbell, 5 Stew. & P. (Ala.) 67; English v. Lane, 1 Port. (Ala.) 328; Craft v. Bullard, 14 Miss. Ch. 366; Murphy v. Trigg, 1 T. B. Mon. (Ky.) 72; Lewis v. Robards, 3 id. 406; Lindley v. Sharp, 7 id. 248; Overton v. Bigelow, 3 Yerg. (Tenn.) 513; Miami Exporting Co. v. United States Bank, Wright (Ohio), 249; Blair v. Bass, 4 Blackf. (Ind.) 539; Delahay v. McConnel 5 Ill. 156; Wadsworth v. Loranger, Harr. (Mich.) 113; Lane v. Dickerson, 10 Yerg. (Tenn.) 373; Conwell v. Evill, 4 Blackf. (Ind.) 67; Scott v. Britton, 2 Yerg. (Tenn.) 215; May v. Eastin, 2 Port. (Ala.) 414; Aborn v. Burnett, 2 Blackf. (Ind.) 101; Bank of Westminster v. Whyte, 1 Md. Ch. 536; Lokerson v. Stillwell, 13 N. J. Eq. 357. To the contrary, Streater v. Jones, 1 Murph. (N. C.) 449; Thompson v. Patton, 5 Litt. (Ky.) 74. 8 Wilson v. Richards, 1 Neb. 342. CHAPTER XIX. DISABILITIES IN PERSONAL ACTIONS. SEC. 237. Saving Clauses in Statutes in SEC. 245. What constitutes an Absence SEC. 237. Saving Clauses in Statutes in Favor of Plaintiffs. — In the seventh section of the statute of James it is provided that, if at the time when a cause of action accrued any person entitled to bring the same shall be within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or without the limits of the United States, such person shall be at liberty to bring the same actions within the times limited by the statute after his disability has terminated; and substantially the same provision is incorporated into the statutes of most of the States. In Maine, the same exceptions are made; 1 so, also, in Vermont, except that the exception as to imprisoned persons and persons beyond seas does not exist, and the word "insane" is substituted for non compos mentis; and the statute of this State also contains all the additional exceptions 1 Appendix, Maine, § 85. In Maine, additional exceptions exist, as in the case of the death of a claimant before the statute has run against his claim, or within thirty days after it has run, an action may be commenced at any time within two years after administration or letters testamentary have been granted, and this saving applies to actions in favor of and against the estate. Sec. 88. So also, by sec. 89, an exception exists in favor of a person who is an alien subject of a country at war with the United States, and the time of the continuance of such war is not to be deemed any part of the time limited for 1 the bringing of any of the actions enumer- 3 existing in the Maine statute, as stated in the first note to this chapter,' except that in cases where a debtor is out of the State at the time when an action accrues, or after it accrues, the exception does not apply if the debtor has within the State known property which, by the common and ordinary processes of law, could be attached; 2 so, also, by sec. 971 of the statute of Vermont, whenever the commencement of an action is stayed by an injunction of any court of equity, the time during which such injunction is in force is not to be taken as any part of the time limited for the commencement of the suit enjoined. In New Hampshire, substantially the same exceptions exist as in the statute of James, except that the words "insane persons are substituted for non compos mentis; no exception is made in favor of persons imprisoned or out of the United States; and substantially the same exception is made as in Maine in the case of the absence of the debtor from the State, the exception being that, "if the defendant at the time the cause of action accrued, or afterwards, was absent from and residing out of the State, the time of such absence shall be excluded." In Massachusetts,* an exception is made in favor of infants, persons disabled by marriage, insane persons or persons imprisoned, alien citizens of a country at war with the United States, and also where the defendant at the time when the cause of action accrued was absent from the State. In Connecticut,5 as to actions of account, debt on book, or on simple contract, or of assumpsit founded on implied contract, or upon any contract in writing, not under seal, it is provided that persons legally incapable to bring any such action at the accruing thereof may bring the same at any time within three years after becoming legally capable to do so; and by sec. 3 the same exception exists as to specialties, except that four years are given after the party becomes capable of suing. By sec. 19, where a person dies before the statute bar has become complete, his executor or administrator shall have one year from the time of such decease in which to bring an action thereon. By sec. 5, an exception or saving is made in favor of a plaintiff, where, at the time when the right of action accrues, he is " beyond the limits of the United States." In Rhode Island, substantially the same provision exists as in Maine, except as to absence from the State, and in that respect the provision is substantially the same as in Vermont. In New York, infancy, insanity, and coverture create a disability, and imprisonment on a criminal charge or imprisonment under an execution of a criminal court for a term less than for life. It is provided, however, that the time for bringing an action cannot be extended more than five years by any such disability except infancy, nor in any case more than one year after the 1 Appendix, Vermont, §§ 967, 968. 2 Appendix, Vermont, § 970. 8 Appendix, New Hampshire, § 8. Appendix, Massachusetts, 9, 10, 5 Appendix, Connecticut, § 4. 6 Appendix, Rhode Island, § 6. 8 Appendix, New York, § 396. 6 disability is removed. As to absence from the State when the right of action accrues, substantially the same provision exists as in the New England States. In New Jersey,' an exception is made in cases of infancy and insanity, but not in the case of coverture. In Pennsylvania, the same provisions exist as in the statute of James, except 6 8 2 that the provision as to persons "beyond seas " is limited to persons "without the United States." In Delaware, an exception is made in favor of persons under the disability of infancy, coverture, and incompetency of mind. In Maryland, the same exceptions exist as in the statute of James, except as to persons "beyond seas.' In Virginia," an exception is made in favor of infants, married women, and insane persons. In North Carolina, substantially the same exceptions exist as in New York; so, also, in South Carolina. In Alabama, persons under the disability of infancy, coverture, insanity, or imprisonment on a criminal charge for less than life, are given three years after such disability is removed to bring an action, provided that no disability shall extend the period of limitation beyond twenty years from the time when the cause of action accrued. In Georgia, married women, infants, idiots, or insane persons, or persons imprisoned, are given the full statutory period after such disability is removed to bring an action in; and substantially the same provision exists in Arkansas, except that idiots are not expressly included, and imprisonment does not constitute a disability, unless it occurs "beyond the limits of the State." So in Colorado, the disabilities are substantially the same as in Georgia, except as to "idiots," and the statute also includes persons who at the time when the action accrued were absent from the United States." In Florida, a saving exists in favor of infants, insane persons, persons imprisoned, and married women, and seven years is given after the removal of such disability, or the death of such person, in which to bring an action or to make an entry or defence.12 In Indiana, the disabilities are not specifically stated, but two years are given to any person under legal disabilities when the cause of action accrues "in which to bring an action after such disability is removed. 18 By sec. 228, it is provided that the statute shall in no case bar the right of the husband to join with and sue for the use of the wife at any time during coverture in any action which would survive to her after the removal of her disability. In Iowa, one year after the removal of the disability is given to minors and insane persons.14 In Illinois, an exception is made in favor of minors, insane persons, or "10 8 Appendix, Alabama, § 3236. 2 persons imprisoned on a criminal charge, and two years after such disability is removed is given. In Kentucky, infancy, coverture, and unsoundness of mind constitute a disability, and the full statutory period after its removal is given. By sec. 11 an exception exists in favor of an alien and a subject or citizen of a country at war with the United States; and by sec. 12 the time during which an action is enjoined is not to be computed. By sec. 13, the time during which the plaintiff is confined in the penitentiary is not to be computed. In Mississippi, infancy and unsoundness of mind constitute the only disabilities. In Missouri, the provision as to disabilities applies to infants, insane persons, married women, and persons imprisoned on a criminal charge, or in execution under sentence of a criminal court for a period less than his natural life; 5 so, also, in Minnesota, except that in the latter State the period of limitation cannot be extended more than five years, nor in any case longer than one year after such disability ceases. In Ohio, the exceptions are substantially the same as in Massachusetts, except as to aliens and the defendant's absence from the State; and also that the exception in reference to married women is general, and not qualified, as in the Massachusetts statute.' In California, infants, insane persons, persons imprisoned on a criminal charge, or on execution under sentence of a criminal court for a period less than for life, and a married woman when her husband is a necessary party with her in commencing an action, are within the saving of the statute. In Oregon, the provisions are the same as in California, except that there is no qualification as to married women, and except that in reference to actions for the recovery of real property the period within which action shall be brought shall not be extended more than five years, except in case of infancy, nor more than one year after the disability ceases.' In Michigan, infants, insane persons, persons imprisoned, married women, and persons absent from the United States and the British Provinces of North America, are within the saving of the statute. In Wisconsin, the same disabilities exist as in New York, but action must be brought within five years after the disability ceases, or after the death of the person entitled who was under disability." In Nevada, the same disabilities exist as in Wisconsin, but the full statutory period after their removal is given, and married women are included." In Nebraska, the exceptions are the same as in Nevada, except that there is no qualification as to imprisonment.18 In Tennessee, the saving is in favor of infants, persons of unsound mind, married women, and persons 1 Appendix, Illinois, § 21. 2 Appendix, Kentucky, § 2, art. 4. 8 See also sec. 21. 4 Appendix, Mississippi, § 2677. 5 Appendix, Missouri, § 3234. 6 Appendix, Minnesota, § 17. 7 Appendix, Ohio, § 4986. 10 8 Appendix, California, §§ 10,352. 9 Appendix, Oregon, § 17. 12 Appendix, Nevada, § 22. 18 Appendix, Nebraska, § 17. |