But another difficulty may be started in this case; during the infancy of the plaintiff, a second disability ensued, by means of her marriage; and it has been made a question, whether a succession of disabilities, thus closing on each other, can be permitted as an excuse within the statute. Upon one construction she would have the whole period of her coverture, and ten years afterwards.
I am clearly of opinion, that the party can only avail himself of the disabilities existing when the right of action first accrued.
If several disabilities exist together, at the time the right of action accrues, the statute does not begin to run until the party has survived them all. 1 Plowd. 375. But the case of Doc v. Jesson, already referred to, is an authority to show that cumulative disabilities cannot be allowed. There the disseisin happened when the right owner was an infant, and he died in infancy, leaving his infant sister his heir; and the court of K. B. held that she was bound, notwithstanding her infancy, to bring her ejectment within ten years after the death of her brother, as more than twenty years had, in the whole, elapsed since the death of the person last seised.
The policy of the statute of limitations is to quiet possessions, and extinguish dormant claims. There is much wisdom in the general provision, and though courts of equity are not within the letter of those statutes, they have generally followed the rule, and held equitable rights concluded by the same bar, and subject to the same exceptions. If there are instances to the contrary, they are special cases, as those of direct trusts, or as that of Bond v. Hopkins, 1 Sch. and Lef. 413, where lapse of time was attempted to be set up manifestly against conscience, or where there is fraud in the transaction. 1 Johns. Ch. Rep. 594. If disability could be added to disability, claims might be protracted to an indefinite extent of time, and to the great injury and oppression of the country. According to an expression of Lord Eldon, "a right might travel through minorities for two centuries." 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 cannot well misapprehend the meaning of the Legislature. The party bringing himself within the proviso must be, "at the time such right, or title, first descended, or accrued, within the age of twenty-one years, feme covert, insane or imprisoned," and he must bring his action within ten years "after such disability removed."
The case of Eager v. The Commonwealth, 4 Tyng's Mass. Rep. 182, is another, and a very weighty decision on this point. The plaintiff was an infant, and before the termination of her infancy, the disability of coverture occurred, but the Supreme Court of Massachusetts held, that the latter disability not existing when the right first accrued, was not within the proviso, and that the party was bound to have brought her writ within the given time after the first disability had ceased. The Supreme Court of Connecticut did, indeed, in the case of Eaton v. Sanford, 2 Day's Rep. 523, recognize a right which had floated through successive disabilities, for near sixty years. But no reasons of the court are assigned in the case, and the decision itself was afterwards disregarded, and the question treated as an open one by the Supreme Court of the same State, under a new organization of the court in the case of Bush v. Bradley, 4 Day's Rep. 298. In the last case, there was no decision upon the point, but I may refer to the opinion of one of the judges (Mr. Justice Smith), vindicating the construction given in 6 East, by a plain and unanswerable argument.
The construction which excludes from the benefit of the proviso, in all our statutes of limitations, successive or cumulative disabilities, is within the reason and spirit of the decision in the celebrated case of Stowel v. Zouch, Plowd. 353. The principle of that case decidedly governs this question, and for the purpose of showing this, it may not be amiss to give a short review of it.
Stowel being seised in fee of certain lands, was disseised by Zouch, who levied a fine with proclamations. Three years afterwards, Stowel died, without entry or claim to avoid the fine, leaving his heir-at-law, an infant of the age of six years. The infant made no claim during his minority, but entered within one year after he came of age. It was determined, by a great majority of the judges, in the exchequer chamber, after several solemn arguments (for the case was argued twice in the C. B. and twice in the exchequer chamber, before all the judges of England), that the demandant was barred, by reason of not making his claim before the expiration of the five years, which had begun to run in the time of his ancestor, and expired in the time of his infancy. No point was, perhaps, ever more fully, ably, and profoundly argued. The discussion was aided by illustrations drawn from reason, convenience, policy, precedents, and the principles of the common law; in short, it was adorned by all the learning and eloquence of Westminster Hall. The argument and decision established the doctrine, that the exceptions in the statute of fines of 4 Hen. VII., in favor of infants and others, extended only to such infants, etc., to whom the right accrued, or who actually possessed a right when the fine was levied, and that no such right had at that time descended, or accrued to the demandant, for his ancestor was then alive; that the circumstance of the demandant being an infant when his ancestor died, was of no avail, because the exception in the statute gave the excuse of infancy to those only to whom a right first accrued, or who had a right at the time of the fine levied, and, therefore the plea of infancy did not apply to the case; that no new right accrued after the fine was levied, as the demandant's title was as heir to his ancestor, in whom the right attached when the fine was levied; that public tranquillity was more to be favored than the nonage of an infant, and that if infancy, closing on infancy, was to be allowed in succession, "the matter might possibly be delayed many hundred years;" that the statute intended to limit a certain time for the first right, and which was not to be exceeded by exposition or equity, though particular persons might suffer by it; "that the public repose was more to be regarded than the private convenience of any particular person, whether he be an infant, or of unsound mind, or in other degree;" that if a disability terminates, and a party within one month thereafter, becomes disabled by a new disability, as imprisonment, unsound mind, etc., and so continues all the five years, or, if at the end of the first month of the five years, he dies, leaving an infant heir, the statute continues to run, notwithstanding the subsequent disability. The great principle of this case, that the disability within the proviso must exist when the right of entry accrues, and that a subsequent disability is of no account, was recognized and confirmed in Doe v. Jones, 4 Term Rep. 300. Lord Kenyon said, that one uniform construction of all the statutes of limitations had prevailed, down to that moment, and that "it would be mischievous to refine, and to make nice distinctions between the cases of voluntary and involuntary disabilities; (as one of the counsel, without any sufficient warrant, had attempted) but in both cases, when the disability is once removed, the time begins to run." It runs, said another of the judges, notwithstanding any subsequent disability, either voluntary or involuntary. The case of Doe v. Shane, M. 28, G. 3 (cited in the note to 4 Term Rep. 306), is also a very strong case on this point. The plaintiff, against whom a fine was set up in bar, was of sound mind when the fine was levied, but he became insane about two years afterwards, and the question was, whether the time continued to run against him while he was in that state. Erskine, for the plaintiff, found the current of authorities so strong against him, that he would not pretend to argue the question, and the K. B. said the point was too plain to be disputed, and the rule for a nonsuit was made absolute.