South's heirs v. Thomas' heirs

Dissent of

Chief Justice Bibb.

The court did decide in the cases of Machir vs. May &c. in 1815, 4 Bibb, 43, and Sentney vs. Overton, 4 Bibb, 446, in 1816; that although the statute of limitation commenced running against the ancestor, by reason of an adverse possession against him when under no disability, yet it ceased running upon the subsequent death of the ancestor, and descent to heirs under age, and that the heirs had ten years after disability removed to make entry and bring their action.

I concur in the opinion long ago expressed and often approved, that “the altering settled rules concerning property, is the most dangerous way of removing land marks.” Such was the sentiment of Chief Justice Parker, delivered in 1717, in Goodright vs. Wright, 1 Pr. Wms. 399. In 1724, Lord Chancellor Macclesfield, in the case of Wagstaff vs. Wagstaff, 2 Pr. Wms. 258, declared his opinion was “never to shake any settled resolution touching property or the title to land, it being for the common good, that these should be certain and known, however ill grounded the first resolution might be.” But contrasting the two decisions of Machir vs. May, and Sentney vs. Overton, with the other adjudications upon the statutes of limitation, they may be compared to two trunks from one root, blasted by the lightnings, and standing amidst a forest of evergreens.

Our statutes of limitation were taken from the statutes of Virginia, and they were taken from the statutes of England, particularly from' the statute of 21 James, I, ch. 16. This statute and others prior and subsequeut thereto in England, as well as the statutes in the States taken from the statutes of England, have called forth very many adjudications. And whether the limitation be to actions real, per*73sónal or mixed, whether for limiting writs of formedon, writs of entry, actions of trespass, detinue, trover, account, or upon .the case, or entries for Avoiding fines arid recoveries, yet the savings in fav- or of persons laboring under any of the mentioned in the statutes,- are. so similar in, all; that the exposition of the proviso in any one, furnishes the rule for a similar proviso in any other statute or section. The objects of all thd statutes of limitation are the same, to protect against stale and ancient claims, whether well of ill founded in their origin, but which may have been discharged or released, to secure against the machinations of dishonesty, when attempted under the advantages attendant ujion lapse of time, loss of papers and death of witnesses, to quiet possessions, and extinguish dormant claims, and to consult the repose of society. There is so much wisdom in' the enaction of these statutes, and so much public tranquility resulting from them, that the wisest and ablest legislators; judges and chancellors have endeavored to render effectual the policy of those statues, by enforcing the bar against legal and equitable actions.

¡s an estah-. lished rulein. the construcB°¡ti°hStatutes of limitation, that gUntorun,it continues to nmnotwithsubsequent" disability, CaseofStowe vs' ouc''

In the construction of these statutes, it is an established rule, that wlíén a statute begins to run against á title or claim, it continues to run until it works á complete bar, without interruption from the death of the claimant, and notwithstanding ány subsequent disability. Stowell vs. Zouch, Plowd. com. 353; Peck vs. The trustees of Randall, 1 John, Reports, 165; Moore’s heirs vs. White, 6 John. ch. rep. 372; Damerest vs. Wynkoop, 3 John. ch. rep. 131; Beauchamp vs. Mudd, 2 Bibb, 538; Floyd’s heirs vs. Johnson, 2 Litt. rep. 114; Walden vs. The heirs of Gratz, 1 Wheat. 296. To these might be added many others, which are referred to however, by chancellor Kent in Wynkoop vs Damerest.

The case of Stowell vs. Zouch was decided, 11 Elizabeth. The arguments began in the common bench, in the sixth year of Elisabeth, and the matter was thence adjourned into the exchequer chamber, before the chief Baron, and all the justices of England. It was there argued fully and profound*74ly by the bar, and most learnedly and ably discuss* ed by the judges. It was illuminated by all the genius and learning of Westminster Hall. Illustrations were drawn from the principles of the common law, other statutes, precedents, reason and policy, and finally decided by a great majority of the judges.

. .. thetíme of the statute of limitation of feT fine^with proclamation is not inter-death^/th!;6 disseizee and descent cast heir”ia>ant Statute 4 chen24.VI1’ c '

The case was, Zouch disseized Stowell, and levied a ^ne with proclamations. At the time of the fine, Stowell was under no disability; three years after the fine, Stowell died without entry or claim to avoid the fine; his right descended to his grandson, then only six years old. The infant made no claim to avoid the fine during his minority, but entered within one year after he came of age, and brought Ids writ of entry upon a disseizin against Zouch, who pleaded the fine with proclamations; Stoweil replied the disseize» of his grandfather, his subsequent death within three years after the fine, that at the time of the descent to him as heir, he was of the age of six years only, and his entry within one year after his full age. To this replication Zouch demurred and Stowell joined in demurrer. The question was whether the death of Stowell, the grandfather, before the end of the five years given to avoid the fine, and the descent to the infant heir, gave him time after his full age to avoid the fine, according to the saving in the statute of limitations of 4 Henry, vii, ch. 24. Theenactin gclause, after prescribing the proclamations to be made, declares:—

Sec. 3. “And the said proclamations so made and had, the fine to be a final end, and conclude as we^ pt'ivies and strangers to the same, except women covert, (other than being parties to the said fine,) and every person then being within age of 21 years, in prison, or out of this realm, or not of whole mind, at the time of the said fine levied, not parties to such fine.”

Sec. 4. “And saving to every person or persons, and to their heirs, other than parties in said fine, such right, claim and interest as they have to, or iu the said lands,.tenements, or other hereditaments, at the time of such fine engrossed, so that they pursue their title, claim or interest by way of action, or *75¡awful entry within five years next after the said proclamations had and made.” *

Sec. 5. “And also, saving to all such persons such action, right, title, claim and interest m, and to said lands, tenements, or other hereditaments, as shall first grow, remain, or descend, or come to them, after the said fine engrossed, and proclamation made, by force of any gift in the tail, or by virtue of any other cause or matter, had and made before the said fine levied, so that they take their action, or pursue their said right and title according to law, within five years next after such action, right, claim, title or interest to them accrued, descended, fallen or come.”

Sec. 7. “And if the same persons, at the time of such action, right or title, accrued, descended, remained or come unto them, be covert de baron, or within age, in prison, or out of this laud, or not of wdiole mind, then it is ordained by the said authority, that their action, right or title, to be reserved and saved to them, and to their heirs, unto the time they come and be at their full age of twenty-pne years, out of prison, within this land, uncovert, and of whole mind; so that they, or their heirs, take their said actions, or their lawful entry, according to their right and title, within five years next after that they come, and be at their full age &c.”

Sec. 8. “And also, it is ordained by the authority aforesaid, that all such persons as be covert de baron, not party to the fine, and every person being within age of 21 years, in prison, or out of this land, or not of whole mind at the time of the said fines levied and engrossed, and by this said act before excepted, having any right or title, or cause of action, to any of the said lands, and other heredita-; ments, that they or their heirs, inheritable to the same, take theirsaid actions, or lawful entry'according to their right and title, within five years next after they come and be of age of 21 years, out of prison, uncovert, within this land., and of whole mind, and the same actions sue, or their lawful enr try take and pursue according to law.”

Argument on the part of Stowell, that he was within the exception. 1st Ground. , „ , , ¿n íoun . 3rd Ground,

Sec. 9. ‘'And if they do not take their actions and entries as is aforesaid, that they, and every of them, and their heirs, and the heirs of every of them, be concluded by the said fines forever, in like form, as they be that be privies or, parties to the said fines.”

I have copied this statute from Yiner, title Fines, (vol. XIII, p. 260,) that the points argued and resolved, as reported by Plowden, maybe more easily understood than by the extracts given in the report.

For Stowell, the demandant, it was argued:

I. That he was not within the body of the act, that he was out of the letter of the enacted limitation, but within the exception of the body of the act, as well as within the saving; that he was an infant at the time of the fine, and so excepted out of the limiting part, (of the tíiird section,) and a stranger to the fine'. They took a distinction between the exception contained in the limiting clause, and a saving. That all infants who had right at the time of the fine, as well as all infants who had not right, were excepted out of the third section; but that the ,8 and 9' sections weré made to prescribe the time for such. ' " ' ‘ '

II- That Stowell, not being comprised in the bojy tj1(? ]¡mjtjng part 0f the third section, was clearly wiflim the time' prescribed and enacted by the eighth section, having been but three years and a few months old, when the fine was lévied, only six years eld when the right and title first accrued to him, and having brought his action in less than five years after he attained full age. .......

III. That if Stowell was comprised within the letter of thé act, yet he was not within the sense and meaning of the enaction, but was aided by the first saving contained in the fourth section. That ‘ he was not party nor privy, to the fine; himself and grandfather were strangers; the act intended by the saving’s to preserve the rights of strangers, by giving time to make claim against the fine; that as the grandfather died within three years after the fine. *77•and the right descended to the infant heir, the demandant, the law could not intend to require him to make claim, or impute laches to him until full age, and so he had come within due time, according to thesense of the statute; that he cannot be prejudicpd by the death of his ancestor within the time allowed to make claim; that it was not the intention of the act to drive infants to make claim, or to impute laches to them.

4th Ground*, 5th Ground, 6th. Equity of tl‘f statute relied on against the bar‘ Resolutions of the Court, ^n^oMhe limitation. ° 2ii Resolution 3d Resolution 4th. Rosolution, that the time 01 ilie --- not1s^il°'Ui)d nfngb^the1" descent cast on the infant 1611 ‘

*77IV. They relied also upon the words of the second saving, (in the 6th section,) and that Stowell was within it, being an infant when the right first accrued to him, and having brought his action within the time prescribed to infants according to that clause, for the right had first descended to the demandant, and had descended to no other person after the proclamations made.

V. They argued that the expressions in the 8th section, “having any right or title, or cause of action,” did not allude to having such title at the time of the fine, but to the time of making entry, or suit taken within five years after disability removed.

Lastly: They contended upon the equity of the .savings, that he was not barred. •

But it was resolved by the court, that the object of the statute was peace and public tranquility, which is greatly to be preferred, and to have greater considération in the exposition of the statute, than the injury which particular persons, as infants, feme coverts and others, may suffer by it.

II. That the infants and others contained in the exception, are such as have right at the time of the fine levied and no others.

III. That the saving in favor .of heirs (in the 4th section,) extended to heirs generally, whether over or underage of twenty-one, so as they pursued their right within the five years next after porclamations made.

IV. That the five years commenced running upon the death of the ancestor of full age, and cannot admit of any intermission, liut shall be ac*78counted continually from the first day of them, That if an infant should have five years de novo, after his full age, the matter might possibly be delayed many hundred years, by death of one heir, and the descent to another underage, and so on; that the would come to be tried when it was out of the memory of any man living, and yet in such a dark case, the jury would be under the necessity of giving a verdict; and such darkness and ignorance of the matters, would be the means of introducing perjury of witnesses and other mischiefs, which the legislature intended to prevent by removing the causes, by limiting a certain time for the first right which they did not intend should be exceeded, although some particular persons might suffer by it.

5th. That the b^h^tat6'1 dites oflimitation cannot be enl urged oft/e'construís tion. 6th. Statute having once commenced running, shall never cease to run till the bar is com píete. Tbe disability within tbe proviso of the Statutes of limitation, must exist when the right of entry or causeofaction accrues, and no subsequent disutility can prevent the bar.

V. That where an act limits a time, for the pub-lie repose of the realm, and in order to avoid universa* trouble, such time ought not, either by expesition or equity, to be favored and enlarged for an infant', or any other, beyond the strict extent of the words; for the public repose is more to be regar tied than the private convenience of any particular person; whether he be an infant, or of unsound mind, or in other degree.

VI. That if a person having present right is under disabilities, and all are removed, the five years appointed shall commence, and if the person falls within a month after, into any of the defects or impediments mentioned in the statute, and so continues all the five years, or at the end of the first mouth of the five years dies, his heir within age, the five years before commenced, shall proceed, and non claim within the five years, shall bind the party and his heirs, as well as if he had been void of .defects, or impediments during the whole five years.

And so judgment was given, that the demandant Stowell be barred.

The great and leading principle in this case is, that the disability within the proviso must exist when the right of entry, or cause of action, accrues, and that a subsequent disability is of no account to prevent the bar.

v/ynkoop vs. Damerest, by Chancellor eiu' Beauchamp vs. Mudd ¡tímate be-B sinsto\un, it continues ^ra°tion" from the”1 death of tho claimant. Comparison of the statute °rKf Ken-d lucky. statute of 21 James I, ch. 16.

I have been thus particular in noticing the points argued and resolved, because the elaborate investígation which they received (for as Plowden tells us, each of the judges had a whole clay for his argumeat, in the Exchequer Chamber,) and the profound learning and reasoning of the judges have so established the principle and incidental resolves, as that, from that time, they have heen-app' oved and followed in the exposition of the savings of all the statutes of limitation, as well in England ass in the United States. To cite all the cases in which the case of Stowell vs. Zouch has been followed would he tedious; Chancellor Kent has referred to very many in the case of Wynkoop vs. Damerest.

When, therefore, in 1812, the judges declared in the case of Beauchamp vs. Mudd, (2 Bibb, 538,) in applying the statute of limitations, “it is an esíablished rule, that when the statute begins to run, it continues to run without interruption from the death of the claimant,” they spoke, like Paul unto Festus, the language of soberness and truth. It was 'tlie established doctrine, as well in relation to the realty, as to the personalty.

In Machir vs. May &c. (4 Bibb, 43,) the doctrine is again recognized as well established in England, upon the construction of the British statute.

But it is supposed that there isa difference in substance between the import oí the British statute and our own.

The British statute, (21 Jac. 1 c. 16,) enacts “that all writs of formedon in descender, formedon in reverter, and formedon in remainder, hereafter to be sued or brought, for any manors, lands, tenements, or hereditaments, whereunto any person or persons, now hath, or have any title, or cause to have, or pursue any such writ, shall be sued or taken within twenty years, next after the end of this present session of parliament; and after the said twenty years expired, no person or persons, or any of their hejrs, shall have, or maintain any such writ, of, or for any of the said manors, lands, tenements or hereditaments; (2) and that all writs of formedon in de*80scantier, formendon in remainder, formendon in reverter, of any manors, lands, tenements or other hereditaments whatsoever, at any time hereafter to be sued or brought by occasion or means of any title or cause hereafter happening, shall he suetl or taken within twenty years next after the title and cause of action first descended or fallen, and at no time after the said twenty years; (3) and that no person or persons, that now hath any right, or title of entry into any manors, lands, tenements, or hereditaments now held from him or them, shall thereinto enter, hut within twenty years next after the end of this present session of parliament, or within twenty years next after any other title of entry accrued; (4) and that no person or persons, shall at any timé hereafter, make any entry into any lands, tenements, or hereditaments, but within twenty years next after his, or their right or title, which shall hereafter first descend or accrue to the same, and in default thereof, such persons so not entering, and their heirs, shall be utterly excluded and disabled from such entry after to he made, any former law or statute to the contrary notwithstanding.”

The proviso. Statute of Keutucliy 1796,

“II. Provided, nevertheless, that if any person or persons that is, or shall be, entitled to such writ or writs, or shall have such right or title of entry, be, or shall be, at the time of the said right or title first descended, accrued, come or fallen, within the age of one and twenty years, feme covert, non compos mentis, imprisoned, or beyond the seas, that then such person or persons, and his and their heir and heirs, shall, or may, notwithstanding the said twenty years be expired, bring his action, or make his entry as he might have done before this act; so as such person and persons, or his or their heir and heirs,, shall within ten years, next after his and their full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this realm, or death, take benefit of, and sue forth the same, and at no time after the said ten years.”

Our statutes enacts, that “all writs of fonnedon in descender, remainder, or reversion of any lands, tenements or hereditaments whatsoever, hereafter. *81bé brought upon any title heretofore accrued, or which may hereafter fall or accrue, shall be sued out within twenty years', next after such title, or 'cause of action accrued, and not afterwards; (2) and that no person’ or persons, who now hath,, have, of may hereafter have any right or title of entry into any lands, tenements or hereditaments, shall make any entry, but within twenty years, next after such right or title accrued, and such person shall be barred from any entry afterwards.”

Proviso in the |.tetule°f en u° Statement of d‘° distinctween the e" British and Kentucky a u es' Apparent efthe ¡vjaoi11-r &c. vs. May &c,. in adding disability upon disability.

*81“Provided, nevertheless, That if any person or persons, entitled to such writ or writs, ' or to such right or title of entry as aforesaid, shall be, or were under the age of twenty years, feme covert, non compos mentis, imprisoned, or not within this Commonwealth at the time such right or title accrued or coming to them, every such person, and his or her heirs, shall or may, notwithstanding the said twenty years are, or shall be expired, bring and maintain his action, or make his entries within ten years; next after such disabilities removed, or death of the person so disabled, and not afterwards.”

It is said that the saving of the statute, of James; applies so as to save only the right or title of entry; of those who were, or shall be infants &c. at the time when the said right or title ^’«¿ descended, accrued, come or fallen. But that our statute, by its saving, applies to those who were, or shall be infants &c. at the time when the said rights, or title accrued, or coming to them. And it is also, farther said, (in the case of May vs. Machir,) that “the saving in our statute, evidently relates to the time when the right accrues, or comes to those labouring under the disabilities therein mentioned, not to the time when the right first accrued to those under whom they derive their right; and to extend it to the latter only, would, therefore, be a plain and direct violation of the express words of the statutes.”

To this exposition of the statute,- my mind cannot assent. It would lead to this consequence, that if one having title in fee simple, should be quiescent for •nineteen years, without eutrv or suit, against one ' *82who had taken adverse possession, and should then die, his heir of non-age, the heir would take his right, in fee with a title and right of entry; not barred, the statute would cease running, and the heir being within the saving, would have ten years after Ids disability removed, which disability might he 19 years; but dying before the ten years were expired, viz: after twenty-eight years, from the descent to him, and forty-seven years after adverse possession against his ancestor, the heir would transmit the right to the estate, with a right of entry not tolled to his heir under disability, who might again die, transmitting the estate with a right of entry not barred, and so on, until all the inconveniences andmischiefs might arise , suggested in Stowell’s case, and as was said by the chancellor in another case, “a right might travel through minorities for two centuries.”

Floyd’s heirs vs. Johnson % Littell 114 compared with Machir Vs. May &c.

This consequence is, howevei, avoided by the case of Floyd’s heirs vs. Johnson, 2 Litt. 114, in a decision, upon the statute of limitations, which I think is correct; but which, without professing to overrule the cases of May vs. Machir, and Sentney vs. Overton, does to my mind, overturn the construction given in those cases. Mrs. Floyd was a feme covert, when her cause of action accrued, and died a feme covert, so the limitation never began to to run against her, the right descended to her heirs, all under disabilities, and they sued in less than ten ■years after their disability removed, but more than ten years after Mrs. Floyd’s death. But they were barred, because the ten years had expired after the death of- the ancestor before suit. In May’s heirs vs. Machir, the twenty years had expired before suit, the adverse possession was taken against the ancestor, before his death, he was killed in March, 1790, the suit was commenced in May, 1813, upwards of twenty-three years, after the death of the ancestor. The heirs were not confined to the ten years after the death of their ancestor; but were allowed ten years after their disability removed, to make their entry into the land, and to bring their ejectment. The statute ceased to run against May’s ■heirs, because, said the court, the saving in our stat* *83«te “evidently relates to the time when the right, accrues, or comes to those laboring under the disabilities therein mentioned, and not to the time when the right first accrued, to those under whom they derive their right.” In the two cases, May’s heirs and Floyd’s heirs sued after twenty years, and after ten years from the death of their ancestor, in less than ten years after their respective disabilities were removed; so far their cases were similar. The difference was, Mrs. Floyd was a feme covert, when the cause of action accrued to her, the statute never began to run against her. John May was under no disability, when the cause of action accrued to him, and the statute did begin to run against him. May’s infant heirs were allowed ten years after their disability removed. The heirs of Mrs. Floyd were not allowed ten years after their disabilities removed, the court did not allow disability after disability, because they said, after reciting the proviso in the statute, “according to the plain and literal import of this language, the right is saved to the person himself, for ten years after the disability removed, or to his heirs after his death, and is forbidden to be exercised by his heir afterwards, without regard to his condition.”

Argument, on the words ,of the Statute an<[proviso,ix-gainst the construction in favor of the infant heir of the ousted ancestor.

This sentence standing by itself, (unqualified by -the reference in the opinion to May ads. Machir, and Sentney vs. Overton,) contains, as I think, the true exposition of the statute, according to the im port of the statute, and in accordance with the principles of the common law. If the ancestor mortgages the estate, the heir inherits subject to the mortgage. If the government imposesa tax with a lien for payment, the heir inherits subject to the tax and lien. If the ancestor is dispossessed, and the limitation begins to run against the ancestor, the heir inherits his right and title of entry, and action subject to the prescription to his ancestor. He inherits the estate cum onere. The person - designated in the saving part of the statute, to whom, and to whose heirs the time is given, is the same person who is meant and described in the part which enacts the limitation. It is to a disabled person and bis heirs, and pot to disabled heirs that the saving *84applies. The statute limits 'the time in which cjectments shall be brought, by limiting the time within which entry shall be made to twenty years, the cause of action arises by adverse possession, then the twenty years begins to be accounted, within which the party having right and title of entry, must make his entry, or bring his action. The clause enacting the prescription of twenty years is general. It designates the persons, by reference to them as having any right or title of entry, and prescribes, that this right and title of entry, shall bo pursued within twenty years. Then comes the proviso, “that if any person or persons, entitled to. such writ or writs, or such right or title of entry as aforesaidthese words refer to. the very same persons to whom the requisition and prescription liad been addressed in the previous section, “shall he, or were under the age of twenty-one years &c.” these words refer to the same persons alluded to in the section of limitation, “at the time such right or title accrued, or coming to, them;” these words refer to the same persons, to the same writs, same enfries, same rights and same actions described in the previous section of limitation; “at the lime such right or title accrued or coining to them,” do not shift the time of accrual or coming; to them the word “such,” refers to those rights and titles mentioned in the section of limitation. The words “accrued or coming,” the one in the past, the other in the future tense, are used, because the limitation is prescribed in the previous section, to persons having at the passage of the act, or who should thereafter have any fight or title of entry. The limitations to writs of forinedon, and to rights and titles of entry are all limited, by reference to those titles or causes of suits, existing or accrued, at the passage of the act, and to those thereafter to accrue. The words as to limitation of writs of formedon, are in reference to “any title heretofore accrued, or which may-hereafter fall or accrue;” as to the possessory actions, the words are, “that no person or persons who now hath, or have, or may hereafter have anv right or title of entry;” therefore, in the proviso, the Siivins; is made in reference to causes of action ac-*85■cruet! at the passage of the act, and to causes of action thereafter to arise, so as to make the saving in cases of disability co-extensive with the limitations enacted. Causes of action existing and accrued at the passage of the act were limited to twenty years next, after the cause of action, as well as causes of action to accrue. The expressions “accrued or coming to them,” were necessary in the saving clause, to meet the expressions, “heretofore accrued, or which may hereafter fall or accrue,” and “now hath or have, or may hereafter have,” in the limiting clause. “Accrued or coming to them,” immediately follow, and are connected with the words, “at, the time such right or title,” and “them” refers to those alluded to in the previous section, whose ac-lions are limited and proscribed in the clause for limitation of the actions. The words “such right or title,” refer to, and mean rights and titles of formedon, and of entry, such as are described in the clause of limitation, and which are required to be prosecuted within twenty years next after such title or cause of action accrued or to accrue. Those rights or titles in the saving clause, are the rights and titles upon which the actions arise; the persons under disability, are such as are so at the time the cause of action accrued. The statute of James, in ■the limiting part, is distributed into four divisions, one for formedons accrued, two for those to accrue, three for rights and titles of entry accrued, four for those to accrue. In our statute the actions of formedon accrued,.or to accrue, are thrown into one division, and the titles of entry accrued, and to accrue, are thrown into another, and all into one section, the proviso in another. The statute of James is more verbose than ours. Fines and recoveries were used in England to bar entails. The words “first descended &c,” were introduced into the statute of Henry 4th, limiting the time, after fine with proclamations for entry, and suit to avoid the fine to five years, and have been preserved in their statutes and many copied from them. To those who are curious to learn in what possible cases of limitation, under the statute of land titles m England, those words were supposed proper, or useful to, be intro*86duced out of abundant caution, I recommend the case of Stowell vs. Zouch,. for a commentary on those expressions. Certainly they can have no bearing in this controversy.

Objection to placing the infant heir of an ancestor, against whose right the Statute had never began to run, (Floyd’s Iieirs vs. Johnson,) in a worse condition than the infant heir of one against whom tho limitation had commenced to run, (Machiv vs. May Sic.) Objection gainst the distinction between the statute of James and our statute. Walden vs. Gratz Supreme court of the United States— against the distjoetiou, and according to the British decis-

*86I can perceive no sufficient reason for placing the> infant heir of an ancestor against whose right the limitation never commenced to run, in worse condition than the infant heir of an ancestor, against whoso right the limitation had commenced to run. My opinion is, that the heir inherits the estate of the ancestor cum onere. 1 perceive sufficient reasons in the opinions of the judges in the case of Stow-ell vs. Zouch, and very many other cases against adding disability to disability, and sufficient reason against suffering the limitation, when running, from being broken and arrested by supervening disability. The enacting clause of ouf statute is general and without exception. The saving clause, as I think, applies only to such perspn as had the right or title of entry, or action, at the time when the cause of action accrued, and who then was under some disabilty and impediment to prosecute his rights; that to such person, so disabled, when the cause of action accrued, and to his heirs generally, whether disabled or not, the ten years are given; that tho saving does not go lame upon one foot, making a difference between heirs under disability, and heirs under no disability. Tito question must always be, to whom the right of entry, or cause of action accrued, was he then under disability, if so, to him and his Iieirs, the saving is extended.

I perceive no difference between the statute of James and our own, which can justify a difference of construction,-and departure from rules of limitation so well settled, and so long established.

In the .Supreme court of the United States, the supposed difference between our statute and the statute of James was urged in 1816, in the case of Walden vs. the heirs of Gratz, in a case depending on this statute, (1 Wheat. 296.) That court in their decision upon' our statute, declared “its language does not vary essentially from the language of the statute of James, the construction of which has. *87been well settled, and it is to be construed as that, and all other acts of limitation founded on it, have been construed.” The judgment was accordingly rendered in conformity to the construction which has been so long and so generally established.

Cases since Machir vs. May,&c. and Sentnpy vs. Overton, not ruled on the principles those cases were decided on. Insisted that the saving in statute refers to disabilities existing at the time the cause of action arose, not to the subsequent, dissent. Critt&ndcn, for appellants; Brown, for appellees.

I am not unmindful of the mention made of the doctrine of the cases of Machir vs. May, and Sentney vs. Overton, in subsequent cases, particularly in Kendall vs. Slaughter, 1 Marsh. 376; May’s heirs vs. Slaughter, 3 Marsh. 511; Haddix’s heirs vs. Davidson, 3 Monroe, 42; M’Intire vs. Funk’s heirs, 5 Litt. 34. In these cases, however, the rule of limitation in Machir vs. May, was not applied, but only noticed, like shoals and rocks on a mariners chart, looked to and avoided. These cases are not sufficient in my mind, to outweigh the great number of determinations, from the case of Stowell vs. Zouch, in 1569, to that of Walden vs. Gratz’s heirs, in 1816. To argue against a former determination of this court, and the opinions of my associates is an unpleasant task. I have endeavored to perforin what appears to me to be my duty, with becoming-courtesy. Their perceptions are not mine, nor mine theirs. I have endeavored to restore what I think, is the plain meaning of the statute. I cannot consent to innovate upon a rule of limitation, which has been approved by the experience of more than two centuries, is founded in the wisest policy, adjudicated by a constellation of judges in successive generations, and so necessary and proper in quieting conflicting land claims, now, and in all time to come.

The rule is, that the saving in the statute, refers to disabilities existing at the time when the cause of action arose; not to the time of the trans- ' mission of the right or title, from one to another. After disabilities, surpervient, or cumulative weigh nothing.

My opinion is, that a new trial ought to have been granted.