The doctrine of any inherent equity creating an exception as to any disability, where the statute of limitations creates none, has been long, and, I believe, uniformly exploded. General words in the statute must receive a general construction, and if there be no express exception, the court can create none. It was agreed, without contradiction, in Stowel v. Zouch, Plowd. 369 b, 371 b, that the general provision in the statute of fines would have barred infants, feme coverts, and the other persons named in the proviso, equally with persons under no disability, if they had not been named in the exception or saving clause. So in Dupleix v. De Roven, 2 Vern. 540, the Lord Keeper thought it very reasonable that the statute of limitations should not run when the debtor was beyond sea, but as there was no saving in the case, he could not resist the plea of the statute. The same doctrine is declared, in explicit and impressive terms, by Sir Wm. Grant, in Beck ford v. Wade, 17 Vesey, 87, and who refers to the opinion of Sir Eardly Wilmot, in Lord Buckinghamshire v. Drury, Wilmot's Opinions, 177, § 194, and to the decision in the common law courts (Hall v. Wybourn, 2 Salk. 420; Aubry v. Fortescue, 10 Mod. 206), that though the courts of justice be shut by civil war, so that no original could be sued out, yet the statute of limitations continued to run.
The opinion of Lord Redesdale, in Hovenden v. Annesley, 2 Sch. & Lef. 630, 640, and of Lord Manners, in Medlicott v. O'Done/, 1 Ball and Beatty, 156, are remarkably elaborate in tracing the authorities, and in enforcing the duty of a court of equity to render entire obedience to all the provisions of the statutes of limitations.
Before I leave this point, I ought to notice the case of Lamar v. Jones, 3 Harris and M'Henry's Rep. 328, in which the late Chancellor Hanson, of Maryland, adopted the English rule, and held that the equity of redemption was barred after twenty years' possession by the mortgagee, without interest paid, or an account, and when lapse of time was relied on in the answer, and ten years had expired after the disability had ceased. This would have been a case perfectly in point, but it was reversed on appeal, on the ground, that the Court of Chancery in England had not adopted that part of the Statute of limitations which allows only ten years to infants, after they come of age, to bring their actions, and the Court of Appeals considered what Lord Talbot had said in Belch v. Harvey, as only a dictum. But, I apprehend, that the opinion of Lord Talbot, formed as it was, after argument, and ready for delivery, has all the weight due to his very enlightened judgment. Lord Camden, in Smith v. Clay, 3 Bro. 639, note, cites that very case and opinion, to show that the statute of limitations, in all its provisions, had been adopted, and become the "settled" law in equity. The case was also cited by the counsel in Lytton v. Lytton, 4 Bro. C. C. 458, and Lord Rosslyn admits, that a similar proviso in the statute of limitations of 10 and 11 W. III., limiting infants to five years after they become of age, to bring error, was to be adopted with the provisions of that statute, as applicable to the analogous case of bills of review. This is a clear judicial sanction to the doctrine of Lord Talbot, and, therefore, as well upon authority as upon the reason and policy of the rule, I conclude, that the Court of Appeals in Maryland was, in this instance, mistaken; and with respect to the learned Chancellor's opinion, notwithstanding the reversal, I trust I may, without offense, be permitted to say, Scoevolce assentior.
I conclude, accordingly, that the lapse of time is here a bar to the right of redemption. The plaintiff has not excused her laches, and the length of adverse possession being insisted on by the answer, the defendant is entitled to the benefit of it equally as if it had been pleaded. I Atk. 494.
2. Nature of the Title.
123 New York, 16. - 1890.
Action to recover an undivided quarter of lands in the possession of the defendant. One Raynor was the owner in fee of the entire premises and placed a mortgage thereon, and thereafter the title to one-fourth passed to plaintiff's father, Chas. B. Hargin. After Hargin's death the mortgage was foreclosed without any notice to his heirs or widow, and Mrs. Raynor got title under the mortgage sale and conveyed to defendant. Further facts appear in the opinion. Judgment for defendants. Plaintiffs appeal.
O'Brien, J. - The findings of the court below are to the effect that, upon the death of Charles B. Hargin in 1840, the undivided quarter of the lands in question descended to his three children, of whom the plaintiff is one, subject to the widow's dower. By the subsequent death of two of the children, without issue and intestate, the estate which the ancestor had at the time of his death became vested in the plaintiff as the surviving child, subject to a life estate in two of these shares in the widow. But it is also found that since 1849, when Lucy Maria Raynor purchased the whole farm from Hovey, and went into possession, the whole premises have been held adversely, first by Mrs. Raynor under her deed, and since 1859 by the defendant under its conveyance from Mrs. Raynor. The heirs of Hargin became tenants in common with the other owners, and the finding of adverse possession implies that the possession of Mrs Raynor was such as to amount to an ouster of her co-tenants. Whatever may be said in regard to the nature of Mrs. Raynor's possession, whether hostile or not, there can be no doubt that the possession of the defendant from the time that it purchased the land in 1859 to the time of the commencement of this action was of such a character as to justify the conclusion that it commenced in an ouster of the heirs. It was the case of the purchase by a public corporation, organized in perpetuity, of lands to be devoted to the burial of the dead, followed by enclosing, improving and laying out the land in such manner and devoting it to such use as was utterly inconsistent with every other claim of title, and this was a termination of the joint tenancy, if it was not terminated before. Zapp v. Miller, 109 N. Y. 51; Millard v. McMullin, 68 Id.345 ; Florence v. Hopkins, 46 Id. 182. The effect of this adverse possession upon the life-estate of Mrs. Hargin is the most important question in this case. The courts below have held that its effect was not only to cut off her remedy for its recovery, but to extinguish the estate itself and vest it in the defendant. If the contention be correct that the defendant in virtue of its adverse possession took to itself the life estate, then Mrs. Hargin, when she executed to the plaintiff the deed of October, 1885, had nothing to convey and that deed was ineffectual. The learned counsel for the plaintiff, perceiving the importance of this point, has addressed himself to its solution with most commendable learning and industry. Perhaps the highest praise that can be awarded to his argument is to record the fact that it drew from his distinguished adversary a generous but well-deserved compliment at the bar. We cannot, however, assent to the proposition that adverse possession of land for a period sufficient to bar an action merely cuts off the owner's remedy without affecting the estate. While this principle is not without the sanction of judicial authority, and that of text-writers, we think that the tendency of modern decisions in this and most of the States, as well as in the federal tribunals, is against it. It was held that the effect of the English Statute of Limitations, 21 Jac . 1, chap. 16, was to bar the remedy, but not to divest the estate. Davenport v. Tyrrel, 1 Wm. Black, 679; Beckford v. Wade, 17 Ves. 87; Scott v. Nixon, 3 Dru. & War. 388, 403; Incorporated Soc. v. Richards, 1 Id. 258, 289; Trustees of Dundee Harbor v. Dougall, 1 Macq. H. L. Cas. 317; Digley's Hist. Real Prop. 159; 3 Cruise on Real Prop. 430. But the construction placed by the English courts upon that statute was not acceptable to a more liberal and enlightened age. The commission of 1828 appointed to reform the anomalies and abuses of the law reported, and parliament enacted a new statute in respect to the possession of land (3 and 4 Wm. IV., chap. 27), the thirty-fourth section of which not only barred the remedy in case of adverse possession, but in terms extinguished the estate. Angell on Lim. chap. 2, 10; App. (5th ed.) 15. Since the passage of this statute it is held that adverse possession for a period sufficient to bar the action divests the estate of the true owner, and transfers it to the party holding adversely. 49 Hun, 420, and cases there cited.