To the action of the plaintiff in the court of common pleas, the defendant below, who is also defendant in error, answered, setting up, among other things, the statute of limitations, as a bar to the action. In regard to the limitation of twenty-one years, pleaded by defendant, the act governing the case was that of February 18, 1831. Chase’s Statutes, 1768.
It provides, in section 1, among other things, that “ the action of ejectment, or any other action for the recovery of the title or possession of lands, tenements, or hereditaments, shall be commenced within twenty-one years after the cause of action shall have accrued, and not after.” Provided (in section 2), “ That if any person entitled to have or maintain any action of ejectment for the recovery of the title or possession of any lands, tenements, or hereditaments, be, at the time his right or title first descended or accrued, within the age of twenty-one years, feme covert, insane, or imprisoned, every such person may (after the expiration of twenty-one years from the time his right or title first descended or accrued) bring such action within ten years after such disability was removed, and at no time thereafter.”
From the pleadings in the case, and the findings of the court of common pleas, it appears that the plaintiff's cause of action accrued in 1838, or, at farthest, in 1842. She was then a minor, and continued to be such until 1848. In 1847, being only seventeen years old, she was married, and has ever since been, and still is, under coverture. Her action was brought in August, 1865, when the twenty-one years, to which her right of action was limited by the first section of the act, had fully expired. If the ten years given by the second section of the act to persons under disability, began to run when she became of full age, i.n 1848, then the bar of the statute was complete before suit brought. But if the disability of coverture, occurring after the cause of action accrued, and before the disability of infancy had been removed, continued to her the protection of the second section, so that the ten years given by it do not begin to run during her coverture, then she might well bring her action, for she is still under coverture.
The question thus presented depends on the construction to be given to the second section of the act, and if determined adversely to the claim of the plaintiff, must, of course, end her case. We propose, therefore, first, to consider this question.
And, first, how stand the authorities upon this question? The precise question here made has not been passed upon by the supreme court of this state, in any reported case, so far as we are aware. But it has frequently arisen in this country, in other states, under statutes substantially similar to our own. In the case of Eager and wife v. Commonwealth, 4 Mass. 182, this very question arose. The plaintiffs there, as in this case, contended that as the wife was an infant when her right accrued, and as the disability of coverture occurred before the termination of her infancy, she was protected by the proviso (which corresponded with the secón I section of our statute of 1831); because there had been no moment of time, since her right accrued, in which she
In Sandford v. Eaton, 2 Day’s Cases, 523, a contrary construction was given to a similar proviso, by the Supreme Court of Connecticut; but the soundness of this-ruling was strongly questioned in the subsequent case of Bush v. Bradley, 4 Day, 208. In this case, however, the-court did not fiud it necessary to pass upon the question.; but in Bunce v. Wolcott, 2 Conn. 27, the same court expressly overruled the doctrine of Sandford v. Eaton, and it was held by Ch. J. Swift, and all the judges who sat in the case, that the saving clause of the statute applied only to a disability existing wheu the canse of action accrued, and not to any supervenient disability.
The question there was, as here, whether supervenient coverture could be added to infancy existing when the cause of action accrued.
The same question arose in Demarest v. Wynkoof, 3 Johns. Ch. 129, where it was sought to add the disability of coverture to that of infancy; but the able and learned Chancellor Kent said: “I am clearly of the opinion that the party can only avail himself of the disabilities existing when the right of action first accrued. . . . Cumulative disabilities can not be allowed.” In that case it was said by the chancellor: “ It would be impolitic, as well as contrary to established rule, to depart from the plain meaning and literal expression of the proviso in the statute of limitations. We can nót w.ell misapprehend the mean
So, in Butler and wife v. Howe, 13 Maine, 397, it -was held that if several disabilities exist together, at the time when the right of action accrues, the statute of limitations does not begin to run until the party has survived them all. But, under the statute, a party can not avail himself of a succession of disabilities, but only of such as existed when the right of action first accrued.
And so it was held by the Supreme Court of the United States, in Mercer v. Selden, 1 Howard, 37, Justice McLean delivering the opinion of the court. The syllabus on this point is: “ Disabilities which bring a person within the exceptions of the statute, can not be piled one upon another; but a party claiming the benefit of the proviso, can only avail himself of the disability existing when the right of action first accrued.”
Many other cases might be cited, in which the statute has received a similar construction by the courts of last resort in our sister states. Among others are the cases of Dugan v. Gittings, 3 Gill (Md.), 138; Doe, ex dem. Caldwell, v. Thorp, 8 Ala. 253 ; White v. Latimer, 12 Texas, 61; Clark v. Jones, 16 B. Monroe, 121; Ashbrook v. Quarles’ Heirs, 15 B. Monroe, 20; Clay’s Heirs v. Miller, 3 Monroe, 148; Welborn v. Weaver, 17 Geo. 267; Keeton’s Heirs v. Keeton’s Adm’r, 20 Missouri, 530; Thompson v. Smith, 7 Serg. & R. 209.
In the ease last cited, the question was considered by Ch. J. Tilghman with reference both to the policy of the statute, and the words of the proviso, or exception ; which it was held could not be extended on grounds of equity.
It is quite true that a different construction of the English statutes of limitation had obtained in that country, and is maintained by reputable English text-books. 2 Preston on Abst. of Title, sec. 339 ; Sugden on Vendors.
There is a difference between the phraseology of the American statutes of limitation in general, and the statute ■of 21 Jac. 1, and this difference is more marked in the case :of the statute of fines, of 4 Hen. 7. Whether there is such a difference in the phraseology, as would justify the apparent difference of the construction in the two countries, it is not worth while to inquire; for we think the construction almost universally given by the courts of this country best comports with the policy of the statute, which is that of repose, and with the legislative intent, as manifested by the plain and clear tenns of the proviso, or second section of the act.
The first section of the act expressly limits the time within which an action may be brought for the recovery of the possession of lands, to twenty-one years after the accruing of the cause of action. This provision, standing
But from this universality of application, the second section makes an exception, in favor only of persons who, at the time their cause or right of action first accrued, were under some one or more of the four disabilities; to wit,' infancy, coverture, insanity, and imprisonment. It is very clear that no such disability will bring any person within the operation of this section, unless it exist at the -time when the cause of action first accrues. If a party is then free from disability, the time given by the first section begins to run, and its flow will not be interrupted by a disability arising subsequently. The case will be goveimed solely by the first section.
But if any of the specified disabilities exist when the cause of action first accrues, then this second section allows the person so under disability, “ to bring such action within ten years after such disability is removed,” though the twenty-one years given by the first section shall have previously expired. And the question is, to what does the word “ such” refer, ,in the expression “ after such disability is removed ?” It was evidently intended to refer to some disability previously mentioned. But no disabilities are spoken of in the former part of the section except those which existed when the right of action-first accrued. The fair and natural construction therefore is, that the action must be commenced within ten years after the removal of the disar bility or disabilities which, by their existence at the time when the right of action first accrued, brought the case within the operation of this section.
"What persons, or cases, a wise public policy should except from the operation of the general bar of the statute, and what should be the duration of such exceptions, are questions for legislative, not judicial consideration. We can enforce no exceptions unwarranted by the plain words of the statute.
It is obvious that the section we have been considering, can have proper application only where an action is brought
As this is fatal to the plaintiff’s case, we do not find it necessary to consider the other defenses interposed by answer in the court of common pleas.
It may be proper, however, to say, that we think the facts stated in the answer, and found hy the court to be true, were-sufficient to divest the plaintiff of all equitable interest, at least, in the premises, and of the right of possession. Thd facts in the case are briefly these: In 1838, the premises in question were regularly sold by the administrator of the estate of plaintiff’s father, who had previously died intestate. The sale had been previously ordered by a court of competent jurisdiction, in a statutory proceeding for that purpose, to which the plaintiff and all other necessary parties were duly made defendants. The property, embracing the premises in controversy, was sold for $2,400; and this sale was duly confirmed by the proper court, and a deed ordered to bo made to the purchaser on his compliance with the terms of the sale.
The administrator was thereby invested with full power, under-the statute, to convey to the purchaser, upon the payment of the purchase money, all the interest of the plaintiff iu the premises, whether legal or equitable. But the terms of sale were not fully complied with, by the purchaser, and such deed was therefore not delivered. Partial payments of purchase money, either by the purchaser or his assiguee, appear to have been made, up till 1842, amounting in the
A sale was made, by a master in chancery, pursuant to the terms of this decree, from which $2,400 were realized. This sale was confirmed by the court, and a deed was ordered to be made and was in fact made by the master to a purchaser, under whom the defendant in this case claims title. Erom the proceeds of this sale, the original purchase money, with the interest thereon, was fully paid, and came as assets into the hands of the administrator. We think the purchaser at this judicial sale took, by virtue of the master’s conveyance, at least all the equitable rights of the parties to the suit. '
The purchase money having been fully paid, we think the purchaser at the judicial sale had a right to demand of the administrator a conveyance of all the interest and title of the heirs of his intestate in and to the premises. Whether such was the legal effect of the deed made by the master, it is unnecessary to inquire.
If a title of any kind remained in the plaintiff, it was certainly one which gave her no equitable right to recover possession of the premises; and we think she has no cause to complain of the judgment of the court of common pleas, as modified by the district court.
Judgment of district court affirmed.