Iam of opinion that a legal title, to one undivided fourth part of the premises in question, was conveyed to Catharine Cooper, by the deed from Cadwallader Golden, of the 5th of November, 1792. At this time, the possession held under a contract to sell, given by William Cooper, as attorney for Cadwallader Golden, was not adverse; because the purchase rested in contract, and the conditions were not yet performed. An adverse possession cannot commence under a contract to purchase, as has been frequently decided upon reasons fully assigned. The adverse possession of Johnson commenced December 13th, 1793, when Cooper conveyed to him. At that time Catharine Cooper was an infant and feme covert. She died in July, 1797, leaving a son born in 1793, since dead without issue ; and Alice, one of the lessors of the plaintiff, born September 30th, 1795.
The question is, whether the plantiff is bound by the statute of limitations. It is contended that Mrs. S xvartwout had but ten years from the death of her mother to bring a suit; because Thomas Cooper was never tenant by the curtesy; and. consequently there was no suspension of the statute. The argument is founded on this, that it does not appear that Golden Cooper was born before the deed executed to the defendants ; and if he was not, it is contended that there was not such a seisin in the wife as would make the husband tenant by the curtesy; or, in other words, that it must be an actual seisin, after the birth of issue; and that a previous seisin, during the coverture and before issue, is insufficient. 'The law on this subject is otherwise. According to Lord Coke, if a man takes a woman seised of lands, and is disseised, and *105tuen has issue, and the wife dies, he shall enter and hold by the curtesy. (1 Cruise’s Dig. 107, ch. 1, s. 11. Id. 112, s. 25.) So that whether the birth of Golden Cooper was before the deed of 1793, or not, is immaterial as to the question whether Thomas Cooper was not tenant by the curtesy, at some period during the coverture. Mrs. Cooper did not take as heir or devisee, in which cases it might he necessary for her to make an actual entry, in order to enable her heir to take by descent, or her husband to be tenant by the curtesy. The title was not cast on her by act of law ; but she took under a deed, to which effect is given by the statute of uses; by which she was put in corporal possession, there being no adverse holding at the time. (2 Bl. Com. 312,338.1 Inst. 29.)
But admitting this proposition to be correct, the material point is this: when did the right of entry first accrue; and what were the existing disabilities at that time 1 The answer is, the adverse possession commenced December 13th, 1798. The only disabilities then existing, were infancy and coverture. No tenancy by the curtesy existed at that period; for it is not shown that Golden Cooper was then born. The birth of a child is necessary to constitute this estate. The husband at that moment had no estate that could be continued beyond the coverture ; for, on the death of his wife without issue, the estate would have immediately descended to her heirs. Whether he would ever have a greater right, was altogether contingent and uncertain. He had not even an inchoate right as a tenant by the curtesy; consequently, the proviso in the statute applied to coverture and infancy only; and gave ten years after those disabilities were removed. But the party has, in any event, 20 years to make his entry ; and as Mrs. Cooper died in 1797, four years after her disseisin, the effect of the proviso would be to give her heirs sixteen years after her death. The sixteen years ended in 1813. The law is well settled, that the right of entry is not barred until all the disabilities, existing when the right of action accrued, are removed; that there cannot be cumulative disabilities ; for when the statute first begins to run, all subsequent disabilities are disregarded. It is then evident, that although Thomas Cooper afterwards became a tenant by the curtesy, it does not interpose any additional *106barrier to prevent operation of the statute. The following authorities establish the doctrine laid down: 3 John. Ch. Rep. 129; 18 John. Rep. 44 ; 8 id. 262 ; 2 Conn. Rep. 27 ; 6 East, 80 ; 4 Mass. Rep. 182: Plowd. 353. As the deed to'the defendant, Johnson, hears date December 13th, 1793, and by the testimony of Cadwailader D. Golden, it appears that Golden Cooper was born in 1793, it is highly probable that his birth was previous to the disseisin. Had this been shown, then Thomas Cooper would have had a contingent estate as tenant by the curtesy; and in the event of his surviving his wife, it would have become absolute. But on the facts before us, I am of opinion that the defendant, Johnson, is entitled to judgment.
Judgment for the plaintiff in both causes.