dissenting:
There are two reasons, conclusive to my mind, why the judgment entered by the court in banc should be reversed. The first reason is the act of April 27, 1855, P. L. 368, and the second, the act of June 14, 1897, P. L. 149. The ground rent was reserved by deed in 1800; the last payment of rent was made on February 18, 1858; and from that time until April 1, 1908, when the preset petition was filed, no one representing the owner of the ground rent made any demand upon anyone, for *248payment, or asserted by legal process or otherwise, the right to enforce collection of the same. After the lapse of half a century, when all of the original parties in interest are dead, the attempt is being made to breathe life and vitality into a dormant ground rent, which all of the parties immediately concerned allowed to slumber for eight years beyond the period of two natural lives.
As to the first reason, it may be said, the seventh section of the act of 1855 provides that in all cases where no payment, claim, or demand shall have been made for any ground rent upon real estate for twenty-one years, or no declaration or acknowledgment of the existence thereof shall have been made within that period by the owner of the premises, “a release or extinguishment thereof shall be presumed, and such ground rent, annuity or charge, shall thereafter be irrecoverable.” It will be noticed that the act did not simply provide when the presumption of payment shall arise, but it in express terms made such a charge irrecoverable after the twenty-one year period. The language of the act is broad and comprehensive, and contains no suggestion of an exception in any case. It was intended as an expression of the statutory policy of the law in dealing with charges of this character upon real estate, or of such an interest in land if it be so considered. It is a statute of repose and has always been so regarded. The power of the legislature to pass such an act cannot be doubted, and we have nothing to do with the wisdom or policy of the statutory law thus declared. In my opinion, the act should be enforced according to its terms, and if so enforced, there could be no recovery of the ground rent in question here. There was “no payment, claim or demand” on account of the ground rent for fifty years after the last payment of semi-annual rent, The owner of the premises made no declaration or acknowledgment of the existence of the ground rent during that time. If, therefore, the act means what it *249says, the rent charge is now irrecoverable. The act also provides how the evidence of such payment, and of the claim and demand, may be perpetuated, but no attempt was made in the present case to comply with these requirements, and nothing was done by anyone from 1858 to 1908 to give notice of the existence of the ground rent. It would be difficult to find a case more completely covered by the act than the one at bar. The conveyance of the lot to Mrs. Gibson in 1858, and the acquiring of title to the ground rent a few days later by her husband, according to my view, in no way affect the declared statutory policy of the law as to ground rents. No such exception is made in the act, and to give it such a construction it is necessary to ignore its plain provisions. Because the law throws certain safeguards around the domestic relation by denying the husband and wife the right to bring suit against each other, is no reason why positive statutory provisions relating to charges upon real estate, and intended as a wise general policy of law, should be disregarded. The husband made no attempt to collect the ground rent during the life of his wife who died in 1871, nor did he at any time take steps to perpetuate evidence of any payment, claim or demand as required by the act. He died in 1900, and the beneficiaries under his will, appellees here, made no demand for payment of the ground rent, or asserted any right to collect it, until 1908 when in search of the records by other parties for a different purpose it was discovered that the ground rent had never been formally extinguished. The last payment was made in 1858; the first twenty-one year period expired in 1879; to this may be added another twenty-one year period expiring in 1900; and in addition there was another eight year period, during all of which time, nothing was done by the owner of the ground rent in assertion of his right to demand payment. The memorandum, not dated, found among the papers of the deceased husband, to which reference has *250been made, did not meet the requirements of the statute and was insufficient to defeat the policy of the law as declared by the legislature. It is not pretended that this undated paper is testamentary in character, and it cannot be said that it was a declaration made by the husband against his interest, and, therefore, Gracie’s Estate, 158 Pa. 521, has no application. But even if such paper might under certain circumstances be admitted as a declaration of one against his own interest, which in the present case it could not be considered, it was clearly incompetent to affect the rights of the parties here because it was not made by the owner of the premises, and this is what the act requires. It was made by the owner of the ground rent, and at best could only be considered as a self serving declaration. What this court said in Korn v. Browne, 64 Pa. 55, precisely fits the present case, “as the plaintiff did not prove any claim or demand or payment, or any declaration or acknowledgment of the existence of the ground rent within twenty-one years, the statute presumption operated an extinguishment and the ground rent became irrecoverable.” The statute made no exception in behalf of married women, or persons under disabilities, and we have frequently held that disabilities to be saved from the operation of a statute must be expressed or they cannot be considered an exception: Warfield v. Fox, 53 Pa. 382; Metz v. Hipps, 96 Pa. 15; Way v. Hooton, 156 Pa. 8.
We have also expressly said in at least two cases that the act of 1855 makes no exception in behalf of persons under disabilities when their titles accrue, nor of persons taking as heirs at law or distributees: Wallace v. Fourth U. P. Church, 152 Pa. 258; Clay v. Iseminger, 187 Pa. 108. The disability set up in the present case is the relation of husband and wife, but no such exception is made in the act, and under the authority of the cases just cited this relation should not *251be allowed to defeat the purpose of the statute and the policy of the law.
The second reason for sustaining the present appeal is the act of 1897. This act provides a method of procedure to determine the question of the extinguishment of a ground rent by payment or by presumption of law. It was intended to apply to cases like the one at bar. It provides in express terms that “in case of a rent reserved by deed dated and recorded more than twenty-one years before the filing of said petition, the burden of proof shall be on the plaintiff to show that said rent is not extinguished by payment or presumption of law.”
In the present case the ground rent was reserved ,by a deed dated and recorded more than one hundred years ago, and it follows as of course that the burden of proof was upon the plaintiffs, appellees here, unless it be now said for the first time, that the statutory rule has no application in a case where the owner of the ground rent is represented by one acting in a fiduciary or representative capacity. To so hold is to read into the act by way of construction, provisions, or exceptions, which the legislature did not include, and which in my opinion were never intended to be included. The act places the burden of proof upon the plaintiff in every case in which the rent is “reserved by deed dated and recorded more than twenty-one years before the filing of said petition.” It is the deed reserving the rent that determines upon whose shoulders the burden of proof rests, and not the parties to the litigation. The act so provides in express language, and it would seem to do violence to the legislative intention to hold otherwise. It seems to me that a statutory rule should be binding upon executors, trustees, and others acting in representative capacities, just as it is on other parties, at least so far as the method of procedure is involved.
If the deceased husband after the passage of the act of 1897 had instituted the proceeding, the burden of proof required by its provisions would have been upon *252him, and, to my mind, there does not seem to be any reason why his appointees, the executors and trustee named in his will, should occupy a more advantageous position than the one who appointed them. The act of 1897 did not place any new burden upon plaintiffs. It was simply declaratory of the established rule of practice in a proceeding under the act of 1855. In Wingett’s Appeal, 122 Pa. 486, decided in 1888, this court said that the burden of proof to show payment, claim or demand, or declaration or acknowledgment, under the act of 1855, was upon the claimant; that the statute need not be pleaded, and the defense may be made under the general issue. It is clear, therefore, that the act of 1897 left the burden upon the plaintiffs just as it had always been. No exception as to the burden of proof under the act of 1855 in favor of executors, or trustees, or persons acting in fiduciary capacities, has been heretofore made, although that act has been in force more than fifty years, and in my opinion no such exception should now be made. Such an exception is not only in the face of long established practice, but it is in conflict with the plain provisions of the act of 1897 and of the later act of 1909. Under such a rule it will only be necessary to raise up someone in a representative capacity to institute the proceeding in order to shift the burden, and this would in a great measure defeat the purpose of all these acts. I think the burden of proof should remain where the act placed it, and the plaintiffs in the present case having failed to meet the burden, are not entitled to recover.
I would reverse the judgment.
Me. Justice Pottee concurs in the dissent.