positions which had been given to it, that if twenty years have elapsed since the right of action first accrued, and ten of those years have been free from disability, the right of entry was barred; that is, the party is not entitled to twenty years, after the disability ceases, to bring his action, but to ten years only, provided, at the expiration of those ten years, twenty years have elapsed since the right of entry accrued.1

482. It was held by Lord Mansfield, that if a right of entry accrue to a feme covert, and she die, leaving her heir within age, the statute does not begin to run until after the disability of the heir ceases.2 This opinion, it will be perceived, is contrary to the preceding authorities, which construe the statute to run in such a case from the death of the mother. It is also contrary to the opinion of Mr. Sheppard, in his Touchstone, p. 31, who, in speaking of fines, says, if the ancestor being abroad at the time of levying the fine do not return, but die out of the realm, the heir must claim within five years from the time his title as heir accrues, notwithstanding any disability, for the right did not first accrue to him, but to his ancestor; and again, if women covert die under coverture, their heirs shall be allowed five years; but no disability in them or in their heirs shall protract the bar beyond five years from the death of the ancestor dying under a disability. Mr. Preston, in his second volume of Abstracts of Title, p. 341, concurs in this opinion of Mr. Sheppard, and says that successive owners under the same estate cannot protect themselves from asserting their claim, on account of successive disabilities; but every claim must be barred by the operation of the fine with proclamations, unless it shall be asserted during the

1 Jackson v. Johnson, 5 Cow. (N. Y.) 74. [Wilson v. Betts, 4 Denio (N. Y.), 201.] 2 The case was, the tenant in tail died leaving issue in tail, a granddaughter, a feme covert; the granddaughter died covert, leaving issue in tail, two sons, infants; the elder son attained the age of twenty-one, and died; the younger attained the age of twenty-one, but did not issue his writ of formedon until fourteen years after, and was therefore barred even by Lord Mansfield's construction. Cotterell v. Dutton, 4 Taunt. 826. A similar ground was once taken by the Supreme Court of Connecticut, in a case which was subsequently overruled by the cases before referred to. The case was: A was seised of real estate and died, leaving B an infant and feme covert, who died before her husband, in 1755, leaving C, an infant daughter, who was married during infancy to D. In an action by D and C for the estate, commenced in 1804, against E, who had been in possession holding adversely nearly sixty years, it was held by the court that the claim of the plaintiff to possession was not barred. Eaton v. Sandford, 2 Day (Conn.), 523, and see Arch. Pl. 87.

life of the person to whom the right of entry or of action first accrues, or within five years of his death, whatever may be the state of the rightful owner in respect of disabilities.1

483. The intervention of a particular estate, however, will suspend the operation of the statute so as to preserve the remedy of persons under a disability, when otherwise it would have been lost. Thus it was held in New York, that the statute cannot be set up in bar to a recovery against the grandchildren of a person dying seised, against whom there was no adverse possession, where, at the decease of the grandfather, the mother of the lessors, through whom the estate descended to them, was under coverture, against whom the statute had not begun to run, and the action is brought within ten years after the decease of their father, the tenant by the curtesy.2 Where an adverse possession commenced in 1772, when A was tenant by the curtesy, and the reversionary estate in his daughter, who was an infant: The daughter married B, in 1783, and A, the tenant by the curtesy, died in 1784; B, the husband, died in 1807; and his widow, the daughter of A, was the lessor of the plaintiff. When the adverse possession commenced, the only disability which existed, independent of the estate by the curtesy, was the infancy of the lessor. Her coverture, as has been stated, did not commence until 1783, and the particular estate terminated in 1784. It was contended, that the lessor being then of full age, and having a right of entry, was bound to exact it, and that she could not avail herself of her coverture, it being urged that her coverture was a second or cumulative disability, which was never allowed. But the court held that, during the particular estate, no right of entry had descended to the lessor, and that therefore the statute did not begin to run till the death of tenant by the curtesy, and that the first disability was coverture.3

484. Where there has been an adverse possession during the time limited by the statute, against tenants in common, one of

1 See also the same doctrine countenanced in 3 Co. Litt. by Thomas, p. 18, n. 1. [In Ohio, the heirs of a non-resident are barred by an adverse possession of land for twenty years, during the lifetime of the ancestor. Lewis v. Baird, 3 McLean (U. S.), 56.]

2 Moore v. Jackson, 4 Wend. (N. Y.) 58.

3 Jackson v. Sellick, 8 Johns. (N. Y.) 262, which is recognized in Jackson v. Johnson, 5 Cowen (N. Y.), 74. See also Jackson v. Schoonmaker, 4 Johns. (N. Y.) 390; 8 Inst. 216; 2 Co. 93; 10 Ib. 49, 99; Hob. 265.

whom is within the saving of the statute, the right of the others is not thereby saved. And so it seems, if an estate descend to parceners, one of whom is under a disability, which continues for more than twenty years, and the other does not enter within the twenty years, the disability of the one does not preserve the title of the other. In an action of ejectment by two coheirs, the declaration contained two counts, the first of which stated a demise by Elizabeth Langdon, widow, and William Barrett. The second count was on the demise of Elizabeth Langdon only. On the trial, in 1809, both of the lessors of the plaintiff established their title as heirs of William Peart. In 1739, a person named Ley, who was then seised of the premises, devised them to Elizabeth Ley, and the heirs of her body, and in case she should die without issue of her body, then over to John Peart, his heirs and assigns for ever. The testator died in 1739. Elizabeth Ley, the tenant in tail, died without issue in 1756. John Peart died before her, in 1740, leaving William Peart his son and heir, who died in 1763, leaving two sisters his coheiresses, one of whom, Elizabeth Langdon, was a feme covert at the time of his death, and so continued until 1808, when her husband died. The other sister, Mary Peart, who afterwards married a person named Barrett, and was the mother of the other lessor of the plaintiff, was of full age, and was unmarried at the time of her brother's decease. Mansfield, Ch. J. In this case were two demises, and a verdict passed for the plaintiff on the second demise by Elizabeth Langdon, the fact being that the estate descended to Elizabeth Langdon, a feme covert, and Mary Peart, in parcenary, and that twenty years elapsed without Mary Peart's entering. And the only question was, whether the lessor of the plaintiff was not entitled to judgment on the first count, on the idea that, as Elizabeth Langdon was under a disability at the time of the descent cast, that circumstance was to operate in favor of the other coparcener. We are of opinion, that the entry of Elizabeth Langdon cannot give a right of entry to Barrett, whose right was before barred by the statute of limitations; but that the judgment must be for the lessor of the plaintiff for the moiety only. It was held, by Mr.

1 See Jackson v. Bradt, 2 Caines, 169.

2 Roe v. Rowlston, 2 Taunt. 441. [Riggs v. Dooley, 7 B. Mon. (Ky.) 236; Moore v. Armstrong, 10 Ohio, 11; Bronson v. Adams, Ib. 135; Wade v. Johnson, 5 Humph. (Tenn.) 117; Woodward v. Clarke, 4 Strobh. (S. C.) Eq. 167; Jordan v. Thornton,

1

Justice Story, in an action of trespass brought by several plaintiffs, who were cotenants, in which the disability of only some of the plaintiffs was relied on in favor of all, that when the statute runs against one of two parties entitled to a joint action, it operates as a bar to such joint action; and the case of Doroure v. Jackson 2 is cited. Consequently, in the case of joint-tenancy, where the parties are compelled to join, the disability of one of them would afford no advantage in any way, unless the party subject to disability should, in an action of ejectment, sue alone, and his demise to the lessee should be construed as a severance of the joint estate, and as converting it to an estate in common.

7 Ga. 517; Pendergrast v. Gullatt, 10 Ga. 218. But in Meese v. Keefe, 10 Ohio, 362, and Lockwood v. Wildman, 13 Ohio, 430, a different doctrine seems to be held.] See also Cullen v. Motzer, 13 Serg. & Rawle (Penn.), 350. A coparcener may bring ejectment on his separate demise. Jackson v. Sample, 1 J. C. 231.

1 Marsteller v. M'Clean, 7 Cranch (U. S.), 156.

24 T. R. 516. And see also Dickey v. Armstrong, 1 Marsh. (Ky.) 39; Simpson v. Shannon, 3 Ib. 362; Turner v. Debell, 2 Ib. 384; Johnson v. Harris, 3 Hayw. (Tenn.)113; Thomas v. Machir, 4 Bibb (Ky.), 412; Riden v. Frien, 2 Murph. (N. C.) 577. Where there are several coheirs lessors of the plaintiff in an action of ejectment, and joint and several demises are laid in the declaration, and one of the coheirs, who labors under no disability, fails to bring his action within the time limited by law, though his right to recovery will be barred by the act, it will not affect his coheirs who were under disability. The proviso in the act is personal, and applies to all those who labor under any of the enumerated disabilities. Lewis v. Barksdale, 2 Brockenb. (Cir. Co.) 436. It was held, in South Carolina, that the infancy of one of several persons, having a joint interest in land, will protect the rights of those who are of full age, from the operation of the statute. Lahiffe v. Smart, 1 Bail. (S. C.) 192. This was in conformity to former decisions, and the settled practice. But Nott, J., who gave the opinion of the court, said: "The correctness of the rule may be questionable; but this court does not feel at liberty to innovate on a rule of law which has long been regarded as settled, and has been acted upon for a great length of time. I do not know that our courts have permitted the rights of cotenants to be saved by any other disability than that of infancy. The question in relation to other cases is still open for consideration. [And this rule is still adhered to. Thompson v. Gaillard, 3 Rich. (S. C.) 418. So also in Kentucky. Harlan v. Seaton, 18 B. Mon. 312.] If several persons be heirs, and one of them a feme covert, at the time when the adverse possession commences, and so continues until the time of bringing the action by the plaintiff, her disability will not prevent the bar as to the others under no disabilities. For each tenant in common as heirs by our (Tenn.) act of assembly may sue for his own share, notwithstanding the feme may not be found. Johnson v. Smith, 5 Hayw. (Tenn.). [So in New York. Carpenter v. Schermerhorn, 2 Barb. (N. Y.) Ch. 314.] In Connecticut, it has been held, that an adverse possession against two tenants in common, one of whom is within the savings of the statutes, operates against the other, and so with coparceners. Doolittle v. Blakesly, 4 Day (Conn.), 265; Sandford v. Button, Ib. 310. [And see also Wells v. Rayland, 1 Swan (Tenn.), 501; Baker v. Grundy, 1 Duvall (Ky.), 281.]

CHAPTER XXXVII.

OF JUDICIAL EXCEPTIONS, ETC.

485. FROM authorities which have been cited throughout the preceding pages, it obviously appears, that statutes of limitations are to be strictly construed by courts of justice, and that, although there have been some instances in which this rule has been departed from, owing to conceptions of inherent equity, they have altogether failed in establishing a contrary precedent.1 Chancellor Kent, in Demarest v. Wynkoop,2 maintained that it would be not only impolitic, but contrary to established rule, both in law and equity, to depart from the plain meaning and literal expression of these statutes. It has been shown, that the persons almost invariably enumerated in general acts of limitation, as excepted from their operation, could not be so by judicial construction, and unless so expressly declared to be by the legislature. Sir William Grant, in Beckford v. Wade, adverted to the case of defendants absent, or out of the realm, before the statute of Queen Anne. It was in vain attempted, he said, upon general reasoning, in many cases, to introduce an exception in favor of the plaintiff, in a case where the defendant was out of the realm. A plaintiff out of the realm, he said, might prosecute a suit by attorney; but, when the defendant is out of the realm, it is very hard to call upon the plaintiff to institute a suit which, in most cases, must be wholly fruitless; and yet, until the statute of Queen Anne was made, that case formed no exception, and the statute of limitations barred the action.

486. In a case in the Supreme Court of the United States, the same doctrine was adhered to. The case was admitted to be within the act of limitations of the State of Tennessee, and not within the letter of the exceptions, It was held by the court, that, notwithstanding the laws of the United States prohibited all per

1 See ante, Chap. II. § 23.

2 Demarest v. Wynkoop, 3 Johns. (N. Y.) Ch. 146. 3 See ante, Chap. XIX. §§ 194, 205.

4 Beckford v. Wade, 17 Ves. 38.