Gambar halaman

the entry of the plaintiff. The plaintiff insisted Virginia, in the case of Harrison v. Harrison that the common recovery was void for want (1 Call, 428), hold this language: "The Act of of a proper tenant to the præcipe, and so the Limitations does not run in favor of trustees, so court held. The plaintiff also insisted that his long as the confidence may be fairly presumed right of action did not accrue till the death of to continue; but it runs both at law and in the surviving lessee for life, so that there was equity in favor of disseisors and tort-feisor shavdo bar of his entry: but the court held that the ing adverse possession. lease for lives was void, so that the plaintiff's So, though it is said in some cases in Johnnght of entry accrued in 1711, and was barred son's Reports, cited on the part of the plaintby the statute. This judgment of King's Bench iffs, that the adversary possession, to constitute was affirmed in House of Lords.

a bar, must have been hostile in its inception, La Trombois v. Jackson (8 Cowen, 589) was and so continued for twenty years; yet this also a case of a special verdict, finding the facts, phrase, “ hostile in its inception,” does not rewhich the court held to amount to an adverse late to the original entry of the defendant, but possession. The facts which, in the opinion of to the act by which the possession became adthe court, constituted an adverse possession in versary; in other words, whether the possession the defendant, were, long possession under a was originally hostile or not, it must have been contract for a future conveyance from a person hostile twenty years ago, and have continued not shown to have had any title, improvement so ever since. (See Jackson v. Brink, 5 Cowen, and cultivation. His long possession and en- 483.) joyment of the property, claiming it as his own, *Shall the defendant be treated as ten-[*43 is held sufficient. The fact of possession, and ant for life holding over, so as to make him the quo animo it was commenced and continued, tenant by sufferance? This is repelled by special were regarded as the tests of adversary posses- verdict, which finds that he held under claim sion. (See page 609.)

of title, and took the rents and profits to his Clay v. Ransome (1 Munf., 454) was the case own use. But an express and acknowledged of a special verdict finding possession in the de- tenancy, as soon as the tenancy is disavowed fendant. Held, that the defendant would have and the right of the landlord openly denied, been protected if it had been found with cer- will become adversary. (See Willison v. Wattainly that such possession had continued kins, 3 Peters, 49; Peyton v. Stith, 5 Peters, twenty years, besides the five years and one 485.) Cited, 1 Pet. Digest, p. 148, pl. 32; alsó bundred and seventy-four days, included by the pertinent case, Doe, dem. Parker,v. Gregory the act of Assembly on account of the war; (4 Neville & Manning: 308). Husband in posand this being left uncertain, a venire de novo session, in right of his wife, held over after was awarded.

her death for more than twenty years; there Let us examine what there is in our case, being no evidence to show under what right he which should make the possession of Dr. Selden held or claimed to hold after her death, this and his son fiduciary.

possession barred the wife's heirs in ejectment. Sball fraud or trust be imputed to its origin? Shall he be regarded as one entering under a Both these grounds have been fully investi- void title, so that his possession would be re42*] gated in the Court of Chancery, *and garded as subordinate to the title of the legal both repudiated by the final decree of that owner? court, attirmed by the Court of Appeals. The special verdict ascertains that the fact is

But if they could be resorted to here, then not so. For however ineffectual in law the conthe statute would run against the fraud from veyances may be to pass the legal title of Mrs. ibe time it was discovered, and would run in Selden, yet Dr. Selden did not enter under her favor of the trustee from the time that the trust deed, but under the deeds of Robert Mackay was openly repudiated.

and Cary Selden, which, though they might As to fraud, see Wamburzee v. Kennedy (4 not have conveyed a good title, are not void in Desauss., 479), Sweat v. Arrington (2 Hayw.. law. Under this head the plaintiffs may rely 129), Thompson v. Blair (3 Murphy, 583). Van upon the cases of Jackson v. Waters (12 Johns., Myn v. Vincent (1 McCord's Ch. R., 314). 365), Jackson v. Cairns (20 Johns., 301); also,

As to trust. It is held that time will bar perhaps, on some other cases referred to in even an express voluntary trust, beginning to Adams on Ejectment (Appendix A, p. 464run from the period of its known disavowal. 468). After the decision of Jackson v. Waters, See Blanchard on Lim., 75; i Law Library, by the Supreme Court of New York, the case 39; Pipher v. Lodge, 4 Serg. & Rawle, 310; of Jackson v. La Trombois came before the same Booms 1. Chiles, 10 Peters, 223; citing Willison court, in respect to the same title, but between 1. Watkins, 3 Peters, 52; Kane v. Blood good, 7 different parties. The Supreme Court thought Johns. Ch. R., 122; Hovenden v. Lord Annesley, the case not distinguishable from Jackson v. 2 Sch. & Lef., 607, 636, 638.)

Waters, and held, accordingly, that the possesAnd as to constructive trusts, see the same sion of the defendant was not adversary. But case of Boone v. Chiles (10 Peters, 223), where this last case coming before the Court of Errors it is said, “Though time does not bar a direct of New York under the style of La Tromtrust as between a trustee and cestui que trust bois v. Jackson (8 Cowen, 589), the judgment of til it is disavowed, yet where a constructive the Supreme Court was unanimously reversed. trast is made out in equity, time protects the The Court of Errors thought the case very distrustee, though his conduct was originally tinguishable from Jackson v. Waters, which fraudulent, and his purchase would have been they did not profess to overrule; but the opinrepudiated for fraud. Citing for this, Andreu ions of the judges on the doctrine of adversary V. Wrigley (4 Bro. Ch. C., 138), Beckford v. possession produce the impression that they Wade (17 Vesey, 97). Townsend v. Toronsend (1 would have decided Jackson v. Waters differBro, Ch. C., 554). So the Court of Appeals of ently.


But these cases furnish no warrant for the The following considerations and cases are 44*) proposition that a *possession commenc- illustrative of the policy of the statute of limiting under a void title may not become adversary: ations, and the favor with which it is regarded

The case in 12 Johnson (Jackson v. Waters) by the courts. repudiates all claim under the grant of the 1. The statute of limitations has been emFrench Canadian government, as a government phatically called a statute of repose,&c. (Beatty's altogether foreign to the colonial government Adm. v. Burnes': Adm., 8 Cranch, 98; 3 Cond. of New York; so as to liken the possession of R., 51.) one claiming under such a grant to the posses, 2. The statutes of limitation ought not to be sion of one without claim—upon the ground viewed in an unfavorable light, as an unjust or that such a grant was notoriously void, and so discreditable defense, but should receive such known to be by the person in possession under support from the courts as would make it what it. But the possession in that case was mani- it was intended to be a statute of repose. It is festly such as not to have created a bar, even if a just and beneficial law, &c. (Bell v. Morrison, it had been adversary, and there is a strong in- 1 Peters, 360.) timation that it might have been ripened into a 3. “Of late years the courts of England and complete bar to the action.

in this country have considered statutes of lim. Jackson v. Cairns (20 Johns.) was the case of itation more favorably than formerly. They a conveyance in fee of the wife's lands by deed rest upon sound policy, and tend to the peace of husband and wife, not executed by the wife and welfare of society. The courts do not so as to be obligatory upon her, and an im- now, unless compelled by the force of former mediate re-conveyance of the property to the decisions, give a strained construction to husband in fee. The husband thenceforward evade the effect of those statutes. By requirclaimed the land as his own, and mortgaged it ing those who complain of injuries to seek refor the payment of his debts. The wife died dress by action at law within a reasonable in 1795, having had issue by the marriage, and time, a salutary vigilance is imposed, and an afterwards the husband died in 1802. His son end is put to litigation.' (McClung v. Silliand heir took possession, and made another man, 3 Peters, 270.) mortgage upon the lands. The mortgage made 4. "Statutes of limitation have been emby the husband was foreclosed in 1805, and phatically and justly denominated statutes of under the decree of foreclosure, sold to Cairns, repose. The best interests of society require who held possession under the purchase till the that causes of action should not be deferred heir of the wife brought his action of ejectment an unreasonable time. This remark is peculin 1817. The court held that as the original iarly applicable to land titles. Nothing so conveyance was void as to the wife, it could be much retards the growth or prosperity of a regarded as the conveyance of the husband country *as insecurity of titles to real es- [*46 alone; that under the statute 32 Henry VIII., tate. Labor is paralyzed when the enjoyment and a similar statute in New York, the convey of its fruits is uncertain; and litigation withance of the husband and wife operated to con- out limit produces ruinous consequences to invey only his interest in the estate; that is, his dividuals." The court therefore approves the tenancy by the courtesy, and produced no dis- Kentucky statutes of limitation. (Bradstreet v. continuance of his wife's estate; that the re. Huntington, 5 Peters, 407.) conveyance to him operated only to revest him 5. “From as early date as the year 1705, with his former estate. That, in like manner, Virginia has never been without an act of limthe mortgage produced no discontinuance of itation; and no class of laws is more univerhis wife's estate; so that, after her death, his sally sanctioned by the practice of nations and possession was that of tenant by the courtesy: the consent of mankind, than those laws The title of his wife's heir to the possession had which give peace and confidence to the actual not yet accrued, and his possession could not possessor and_tiller of the soil.” &c. (Harobe adversary to the heir. They intimated an kins et al. v. Barney's Lessee, 5 Peters, 457.) opinion that the mortgage by his heir did not The course of Kentucky approved, even her render the possession adversary, but did not "seven years law;" same case. decide this point, as it was unnecessary. They English cases, see the modern one of Tolson v. consider the possession as becoming adversary Kaye (3 Bro. & Bing., 217), decided in Com45*) at *the time of Cairns's purchase, in 1805. mon Pleas in 1822. But this was within the period of limitation; The case of Taylor v. Horde, already cited, they therefore held that the action was not is an authority to prove that possession held barred.

under a void common recovery was protected Here it is obvious that the right of entry by the statute of limitations. never accrued to the wife's heirs until the death In Smith v. Bentis (9 Johns., 180), Spencer, of the husband, who had good title as tenant by delivering the opinion of the court, said: "It the courtesy; and as but fifteen years had has never been considered as necessary to conelapsed after the right of entry bad accrued, the stitute an adverse possession that there should statute presented no bar.

be a rightful title. Whenever this defense is But we maintain that the doctrine which as- set up, the idea of right is excluded; the fact sumes that possession, commencing under a of possession and the quo animo it was comvoid title, cannot become adversary and be pro- menced or continued, are the only tests, and tected by the statute, is in conflict with the it must necessarily be exclusive of all other principle of the statute and all the authorities. rights.”

The principle of the statute is to quiet pos- In Smith v. Lorillard (10 Johns., 356), Chief sessions, and to protect tenants, after a reason. Justice Kent said, in delivering the opinion of able length of time, from the necessity of ex- the court, that "after a continued possession hibiting any title whatever.

for twenty years under pretense or claim of

And among

right, the actual possession ripens into a right of Appeals, has decided the very question we of possession, which will toll an entry.” (See are now considering. The opinions of Judges also La Trombois v. Jackson, 8 Cowen, 589, es- Brockenborough and Cabell, constituting the pecially the opinions of Jones, Chancellor, p. majority of the court, have held that the stat602, 603; and Spencer, p. 609-611, citing ute was a complete bar to all the equitable Jackson v. Wheat, '18 Johns., 44; Jackson v. claims preferred in that cause. The case is Nacton, 18 Johns., 355; Jackson v. Woodruff, 1 not reported, but adduced in manuscript. Cowen, 286.)

In Jackson y. Newton (18 Johns., 355), the The opinion of the court was delivered by possession of the defendant was held under a de- Mr. Justice MCLEAN: fective deed, a deed without a seal, which, there- This case is brought before this court, from fore, passed no title, yet was considered ad- the Circuit Court of the Eastern District of verse, and having continued for twenty years, Virginia, by a writ of error. barred the plaintiff's entry.

An action of ejectment was commenced by Exing v. Bennett (8 Peters, 41) holds that the lessors of the plaintiff, to recover possession 47*) adverse possession *of twenty-one years of certain undivided interests in a tract of land under elaim or color of title merely void, is a in Loudon County. bar to a recovery under an elder title by On the trial, the jury found a statement of deed, although the adverse holder may have facts, on which the questions of law mainly had notice of the deed. This was the case of arise, an uninclosed lot in Cincinnati.

Mary Mason Seldon was seized and posHarpending v. The Dutch Church (16 Peters, sessed in fee-simple of certain tracts of land in 455), held that the title of a devisee, entering the County of Loudon, estimated to contain under a void devise, may be protected against four thousand «acres, a part of which is the the beirs by the statute of limitations. (See also land in controversy. She intermarried with Hudson v. Hudson's Adm., 6 Munf., 355, and 5 Mann Page, who died in 1779, leaving his wife Peters, 354; also Patton's Lessee v. Easton, 1 and three infant children, John, William Byrd, Wheat., 479.)

and Jane Byrd. Mrs. Page continued a widLastly, shall Dr. Seldon be regarded as hav- ow, seized in her own right, until 1782, when ing entered as guardian, and therefore holding she married Wilson Cary Selden; who in right in subordination to the title of his wards? of his wife entered upon and held the lands.

This fact is also repudiated by the special Soon after the marriage, Selden became guardFerdict, which finds that he entered in his own ian of the three infant children aforesaid, gave right; and by the decree of the Court of Chan- bonds, &c., and continued to act as guardian cery, which has rejected all claims against him during the minorities of the two sons, and until as guardian.

the marriage of the daughter. But if he did enter as guardian, that guard- On the 22d December, 1784, Selden and fanship has been long since terminated and wife conveyed in fee-simple to Cary Selden, the accounts finally settled. There is no au- father of the husband, the whole of the four thority to prove that a guardian will not be thousand acres of land, with the exception of protected by the statute of limitations after his two thousand acres deeded to W. B. Page. guardianship has terminated. On the contra- Mrs. Selden was privily examined as the statry, Littleton, sec. 124; Co. Litt., 896, 90 a; ute requires. This deed was acknowledged and Cro. Car., 229; Cro. Jac., 219; which show recorded by Selden the 14th April, 1818, long that the guardian, whether de jure or de facto, after the decease of the grantee. On the 1st whether proprius tutor or alienus tutor, is liable January, 1785, Cary Selden and wife re-conto the action of account on the part of his veyed the land, with the exception above ward, show necessarily that he is entitled to the stated, to Wilson C. Selden; which deed was protection of the statute, because the action of also recorded the 14th April, 1818. account is expressly limited by the statute. It Selden and wife, previously to the execution Fas so by the statute of James, and is so by of the above *deed to Cary Selden, made [*49 that of Virginia.

a deed to William Byrd Page, son of Mrs. So, too, in equity, where the guardian is Selden by her first marriage, for two thousand held to account for rents and profits, the court acres, part of the above tract of four thousand will lay hold of “any such thing" as a waiver acres; which deed was never recorded, and canof the account after the infant came of age, to not now be found. From the time of their pat an end to the claim. (Morgan v. Morgan, 1 marriage, Selden and wife had their permanent Atkyns, 489.)

dwelling in the County of Gloucester, until Why should not the possession of a former they removed to the County of Elizabeth City, guardian under a claim of right in himself, and where they established their residence. In Sepa long and notorious application of the profits tember, 1787, Mrs. Selden, being in a low state to his own use, as effectually disseize his for- of health, accompanied by her husband on a mer wards, and entitle him to the protection return from the Springs, was taken extremely of the statute, as the possession of a tenant in ill at Winchester, in Frederick County, Vircommon, joint tenant, or coparcener, denying ginia, where she died on the 17th of that month. the right of his co-tenant, and applying the Two days previous to her death Mrs. Selden, profits to his own use, would disseize his co- with her husband. executed a second deed to tenant, and entitle the disseisor to the protec-William Byrd Page, for two thousand acres by tion of the statute of limitations? (See Adams certain metes and bounds, and also a deed to 48*) on Ejectment,56; *Blanchard on Lim., 9, Doct. Robert Mackay for two thousand acres, 1 Law Lib., 5; Fisher v. Prosser, Cowper, 218; being the residue of ihe four thousand acres in Dee, dem. Stellings, v. Bird, 11 East, 50.) Loudon aforesaid. On the 17th, it being the

The case of Scann v. Selden, in the Court | day of her decease, the privy examination of Mrs. Selden was taken to the above deeds, by On the 6th December, 1819, the lessors of the three justices of the peace of Frederick County, plaintiff claiming as heirs of Mrs. Swann, with under a commission issued by the clerk of Lou- others, instituted their suit in the Superior don County. Selden, on the 8th October, 1787, Court of Chancery held at Winchester, against acknowledged the above deeds, and they were Wilson Cary Selden and others, claiming the ordered to be recorded. On the 17th Septem- lands now in controversy, upon certain defects ber aforesaid, and after the decease of Mrs. in the conveyances under which Selden claimed, Selden, Mackay re-conveyed the land conveyed and upon alleged equities. Answers were filed. to him as above stated, io Wilson C. Selden. and upon the final hearing in October, 1830, a This deed was recorded the 8th October en- decree was pronounced, whereby the court, suing.

disclaiming jurisdiction of the alleged imperFrom the time of his marriage to the decease fections in the conveyances aforesaid, but takof Mrs. Selden, Selden, in right of his wife, ing jurisdiction *of the matters of equity. [*51 held possession of the premises in controversy. adjudged and decreed that the plaintiffs bill After her death he continued to hold possession, should be dismissed with costs, but without taking the rents, issues, and profits for his own prejudice to any suit at law which the plaintiffs use; claiming the land under the above decd. might be advised to prosecute on account of In 1818, when the legal sufficiency of that deed the alleged legal defects, or want of validity in was questioned, he caused the deeds to and the said deeds." This decree, on an appeal to from his father to be recorded, as above stated, the Supreme Court of Appeals, was affirmed and so continued to claim the premises under the 17th of April, 1837. both deeds, and to exercise acts of ownership This cause has been ably and elaborately arover the land until his death, in 1835. Between gued. Some points have been made and illusthe years 1796 and 1812, Selden sold, conveyed trated with great research and ingenuity, which, and delivered possession to different persons, from the view taken of the case by the court, and among others to Thomas Swann, who had are not essentially involved in the decision. intermarried with Jane Byrd Page, various par. Among these are the construction of the statcels of the land.

utes under which the deed from Selden and In April, 1794, Jane Byrd Page, with the wife to Cary Selden, in 1784, was executed and consent of her guardian, she being under twen recorded: and also the deed from Selden and 50*) ty-one years of age, married* Thomas wife to Mackay, in 1787. Swann; and died the 31st October, 1812, leav- We will consider the case in reference to the ing seven infant children, her heirs-at-law. statute of limitations. Among others, Mary Scott, one of the lessors The statute of 1785 bars the right of entry, of the plaintiff, who, in June, 1818, being under unless suit be brought within twenty years next twenty-one years of age, intermarried with after the cause of action accrues.

The savings John Mercer, one of the lessors of the plaintiff. are "infancy, coverture, non compos mentis, In 1796, having received from Selden £640, imprisonment, or not being within the comThomas Swann executed a receipt, fully dis- monwealth at the time the right of action accharging him as guardian. John Page, the eld- crued.” And such persons are barred if they est son of Mrs. Selden, died in 1800, having do not bring their action within ten years next devised all of his estate, real and personal, after after their disabilities shall be removed. the death of his widow, Elizabeth K. Page, to Selden took possession of the premises in two of the children of his brother William Byrd controversy, claiming them as his own under Page, to wit: William B. Page and Mary M. the deed from Mackay, in the fall of 1787. Prior Page, and to three of the children of his sister, to that time, his possession was in right of his Jane B. Swann, to wit: Edward, Mary, and wife. Under the deed from Mackay his posThomas, as tenants in common. Edward and session was adverse to the right of the lessors Thomas died intestate, and without issue. of the plaintiff. He avowed his ownership by Mary intermarried, as above stated, with John placing the deed upon record, by enjoying the Mercer.

profits of the land, and by selling and conveyAfter John Page, the above testator, had at- ing different parcels of it. tained full age, on the 21st December, 1792, he In no sense can he be considered as holding settled with Selden, his guardian, and executed possession, in virtue of his rights as guardian of to him a release from all demands.

the heirs of his deceased wife, or as tenant hy Thomas Swann, surviving his wife, conveyed the courtesy. The right under which he held by deed duly executed all his interest in the possession during the life of his wife terminated premises 10 his surviving children.

at her death, there being no issue of the marAfter Wiliam Byrd Page had attained full age riage. From this time he possessed and claimed he made a claim against Selden, on account of the premises as his own. This was notorious inequality in the partition of the aforesaid four to the public, and especially to the heirs of his thousand acres of land, which claim was finally wife. John Page, in his lifetime, settled with adjusted by the payment of one thousand Selden as guardian, and executed to him a repounds, and the purchase of five hundred acres lease of all demands. William Byrd Page reof his land by Selden. And afterwards, on the ceived from him one thousand pounds, the es230 July, 1794, Page, having received full satis- timated difference in value between *the [*52 faction from Selden as guardian, executed to part of the four thousand acres conveyed to him him a release, &c.

over that which was conveyed to Page. ThomFrom the death of Wilson Cary Selden up to as Swann, the husband of Jane Byrd Page, actthe present time, the defendant, his son, has ually purchased from Selden a part of the land held the actual possession of the premises in conveyed to him by Mackay. Swann, at the dispute, claiming the same as his own, und time he purchase, was a highly respectable the will of his father.

lawyer, and not only knew that Selden claimed

the land adversely, but he recognized the valid- / run until the party has survived them all.” In ity of such claim by the purchase.

Doe v. Jesson (6 East, 80), it was held that cuUntil his death in 1835, Selden continued in mulative disabilities in different persons could possession of the premises, and his son, the de- not be added. fendant, still holds the same adversely under At the time of her marriage, in April, 1794, his father's will. From these facts it is clear Mrs. Swann wanted about three months of bethat the lessors of the plaintiff are barred by ing of full age. Of course, in July ensuing, the statute, unless they shall bring themselves she was of age, from which time the statute within its exceptions.

began to operate, and in twenty years would The right of action accrued in 1787. At that have barred her right of entry, had she surtime Jane Byrd Page, being an infant, was vived. But her death in 1812 arrested the opwithin the exception of the statute, and it is in eration of the statute, and gave her heirs ten sisted that her marriage with Swann before she years within which to bring their action. The was twenty-one years of age, added to her first proviso in the statute, after enumerating the disability that of coverture.

exceptions, among which are infancy and cov. Mr. Preston, in his Abstracts (2 vol. 339), erture, declares that “every such person, and says: " If the right accrues to a person who is his or her heirs, shall and may, notwithstandat that time under a disability, the fine will noting the said twenty years are, or shall be exbegin to run against him till he shall be free pired, bring and maintain his action, or make from disability; and successive disabilities, his entry, within ten years next after such diswithout any intermission, will continue to him abilities removed, or the death of the person so a protection against being barred by non-claim:disabled, and not afterwards." but any cessation of disability will call the stat- By the settled construction of this proviso, the ute into operative force, and no subsequent dis- heir has ten years to bring his action, where his abilty will arrest the bar produced by the stat- ancestor is not barred. *This *time is [*54 ute."

given him without reference to the time that The saving in the Virginia statute is the has elapsed or the disabilities of his ancestor, if same as that of the 21st of Jac. 1, but it has the right of entry has not been tolled. received in this country a different construction But it is insisted that the right of entry did from that stated by Mr. Preston. In Parsons not devolve on the heirs of Mrs. Swann at her F. McCracken and wife (9 Leigh., 495), Mr. decease, as her husband became tenant by the Justice Parker says, speaking of this statute, courtesy. **I am of opinion that cumulative disabilities In 1 Coke on Litt., 29, ch. 4, sec. 35, it is ought not to prevent its operation; and that said: “ Tenant by the courtesy of England is, upon a sound construction of the act, a party where a man taketh a wife seized in fee-simple, claiming the benefit of the proviso can only or in fee-tail general, or seized as heir-in-tail avail himself of the disability existing when special, and hath issue by the same wife, male the right of action first accrued; since, other or female, born alive, albeit the issue after dieth wise, the assertion of claims might be post- or liveth, yet if the wife dies, the husband poned for the period of the longest life, and shall hold the land during his life, by the laws possessions disturbed after sixty, eighty, or of England.” eren a hundred years.” In that case, as in the “And first, of what seisin a man shall be one under consideration, the female in whom tenant by the courtesy. There is in law a twothe right vested, married before the disability fold seisin, viz., a seisin in deed and a seisin in of infancy had ceased.

law. And here Littleton intendeth a seisin in 53) *In the same case Mr. Justice Brock- deed, if it may be attained unto, as if a man enborough says: “If she married after she be- dieth seized of lands in fee-simple, or fee-tail came of age, her subsequent coverture was not general, and these lands descend to his daugha disability which would obstruct the operation ter, and she taketh a husband and hath issue, of the statute: and even if she married while and dieth before any entry, the husband shall yet an infant, we cannot mount one disability not be tenant by the courtesy; and yet in this on another so as to prevent a continuous ob- case she had a seisin in law; but if she or her struction to its operation." Mr. Justice Tucker husband had during her life entered, lie should says: “ It is true that Rebecca was an infant, have been tenant by the courtesy." but she came of age in 1824, when her disabil- The wife at common law was endowable ity ceased; for, notwithstanding some loose where there had been no actual possession, and opinions to the contrary, she cannot tack the the reason is, that during coverture she could disability of marriage to that of infancy.” not take possession of the lands of her husband.

The same doctrine was recognized by the But actual seis was necessary to enable the Court of Appeals, in the chancery case lately husband to claim as tenant by the courtesy. decided in that court, between the parties now This rule was not inflexible. It yielded to cirbefore us. The same principle is sanctioned in cumstances, as in the case of an advowson, or 2 Hen. & Munf., 306; and in Eager and wife rent, or where an entry was prevented by force. F. Commonwealth (4 Mass., 182); Jackson v. (Litt., sec. 417, 418.) In like manner, if a man Whent (18 Johns., 40); Demarest v. Wynkoop have a title of entry into lands, but does not 3 Johns. Ch., 129).

enter for fear of bodily harm, and he approach Chancellor Kent says, in the last case cited, as near the land as he dare, and claim the land "I am clearly of opinion, that the party can as his own, he hath presently, by such claim, a only avail himself of the disabilities existing possession and seisin in the land, as if he had when the right of action first accrued.” In 1 entered in deed. (Litt., sec. 419.) And, under Plowd., 375, it is laid down that, “if several some circumstances, living within view of the disabilities exist together at the time the right land will give the feoffee a seisin in deed, as of action accrues, the statute does not begin to fully as if he had made an entry. It has been

« SebelumnyaLanjutkan »