This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The purpose of the statutes of limitation is to debar one of his right to assert his claim when, having the power to assert such claim, he has failed to do so for the period named. Consequently the statutes do not commence to run as against a particular person until a right of entry or action accrues to him. So, as against one who has a remainder upon an estate for life, the statute does not a claim of right, and to use and enjoy as one's own, is a disseisin, but from this plain and easy-standard of proof we are to depart, and the invisible motives of the mind are to be explored." French v. Pearce, 8 Conn. 439, per Hosmer, C. J.
96. Smith v. Keyser, 115 Ala. 455, 22 So. 149; Peters v. Gracia, 110 Cal. 89, 42 Pac. 455; Hassett v. Ridgely, 49 111. 197; Mcnamee v. Moreland, 26 Iowa, 96; Murphy v. Comm., 187 Mass. 361, 73 N. E. 524; Bunce v. Bidwell, 43 Mich. 542, 5 N. W. 1023; Majors v. Rice, 57 Mo. 384; Jackson v. Vermilyea, 6 Cow. 677; Bryson v. Slagle, 44 N. C. 449; Massen-gill v. Boyles, 11 Humph. (Tenn.) 112; Texas Land Co. v. Williams, 51 Tex. 51; Burnell v. Maloney, 39 Vt. 579, 94 Am. Dec. 358.
97. Angell, Limitations, Sec. 371, et seq.; Rosenau v. Childress, 111 Ala. 214, 20 So. 95; Ogden v. Ogden, 60 Ark. 70, 46 Am. St. Rep. 151, 28 S. W. 796; Anderson v. Northrop, 30 Fla. 612, 12 So. 318; Bagley v. Kennedy, 81 Ga. 721, 8 S. E. 742; Orthwein v. Thomas, 127 111. 554, 11 Am. St. Rep. 159, 4 L. R. A. 434, 13 N. E. 564, 21 N. E. 430; Mettler v. Miller, 129 111. 630, 22 N. E. 529; Williams v. Mcclanahan. 3 Mete. (Ky.) 420; Pratt v. Churchill, 42 Me. 471; Wallingford v. Hearl, 15 Mass. 471; Lindley v. Groff, 37 Minn. 338, 34 N. W. 26; Watkins v. Green, 101 Mich. 193, 60 N. W. 44; Reed v. Lowe, 163 Mo. 519, 85 Am. St. Rep. 578, 63 S. W. 687; Pinckney v. Burrage, 31 N. J. L. 21; Jackson v. Johnson, 5 Cow. 74, 15 Am. Dec. 433;
Childers v. Bumgarner, 53 N. C. 297; Davis v. Dickson, 92 Pa. St. 365; Moseley v. Hankinson, 25 S. C. 519; Carver v. Maxwell, 110 Tenn. 75, 71 S. W. 752; Mansfield v. Neff, 43 Utah. 258, 134 Pac. 1160.
98. Potrero Nuevo Land Co. v. All Persons, 29 Cal. App. 743. 156 Pac. 876; Orrell v. Madox. 3 Cruise, Dig. tit. 31, ch. 2, Sec. 30. That the statute begins to run immediately on expiration of the lease, though it is renewed, see Gartlan v. C. H. Hooper & Co., -Cal. - , 170 Pac. 1115.
99. Doe v. Danvers, 7 East 299; Gwynn v. Jones, 2 Gill. & J. (Md.) 173.
1. Marray v. Quigley,119 Iowa, 6, 97 Am. St. Etep. 276, 92: N. W 869; Criswell v. Criswell
101 Neb. 349, 163 N W. 303 will continue to run, as against the reversioner or remainderman as well as against the particular tenant.2 That is, an owner in fee against whom the statute has commenced to run cannot interrupt its running by creating a particular estate, either with or without a remainder thereon.
Applying the principle that the statute does not run against one who has no right of entry or action, it has been decided that if, after the adverse possession has begun, the rightful owner, a married woman, dies, and her husband has then an estate for life, the statute does not run as against the woman's heirs during the existence of the life estate.3
In states in which an estate in fee tail is still recognized, since the reversioner or remainderman on the estate in fee tail has no right of entry or action until the failure of the designated heirs of the body, the statute of limitations cannot, in theory, run as against him until then. The English statute of limitations now in force provides in effect that after the statute shall have run as against the tenant in tail, it shall be regarded as having also run against alb persons whom he might have barred by conveyance or otherwise, but before this statute was passed, it was recognized that "while possession adverse to a tenant in tail told against the issue in tail, who claimed in right of the same estate,4 such possession, though protracted for centuries, went for nothing as against the remainderman or reversioner, who had a substantive right, which did not accrue until failure of the issue in tail."5 The matter is of little practical importance in this country, by reason not only of the small number of states in which estates in fee tail are recognized, and the rarity of their occurrence even in such states, but also of the fact that the reversioner or remainderman would ordinarily be barred by a conveyance by the first tenant in tail.
2. Hubbard v. Swofford Bros. Dry Goods Co., 209 Mo. 495, 123 Am. St. Rep. 488 ,108 S. W. 15; Sutton v. Clark, 59 S. C. 440, 82 Am. St. Rep. 848, 38 S. E. 150; Stackpoole v. Stackpoole, 4 Dr. & War. at p. 347; 1 Hayes, Conveyancing, 257.
3. Jackson v. Johnson, 5 Cowen (N. Y.) 74, 15 Am. Dec. 434, followed in Jackson v. Mancius, 2 Wend. (N. Y.) 369; Mcneely v. South Penn. Oil, 52 W. Va.
616, 62 L. R. A. 562, 44 S. E. 508. A contrary view is asserted in Beattie v. Stewart, 154 111. 273, 40 N. E. 340. See also Henry v. Carson, 59 Pa. St. 207. 4. That it bars such issue see Tolson v. Kaye, 3 Brod. & Bing. 217; Croxall v. Shererd, 5 Wall. (U. S.) 268, 18 L. Ed. 572; Inman v. Barnes, 2 Gall. 315, 13 Fed. Cas. No. 7048; Martindale v. Troup, 3 Harr. & Mch. 244; Wickes v. Wickes, 98 Md. 307,
In so far as the government may be by statute liable to suit,6 or as the rightful owner can, by legal proceedings against the agents of the government, assert his right of possession,7 the statutory bar may run in favor of the government, while, it would seem, it cannot run in absence of such a right of action in his favor. There are several cases in which the right of the state to acquire title under the statute of limitations is recognized, without any reference being made to the question of the ability of the rightful possessor to enforce his claim,8 and these must, it seems, ordinarily be upheld on the theory that there was a right of action against the agents of the state in possession.
- Bar of cestui que trust. There is one case in which a person may be barred by the adverse posses sion of another although he has no right of action or
56 Atl. 1017; Baldridge v. Mc-farland, 26 Pa. 338 (semble); Dow v. Warren, 6 Mass. 328.
5. 1 Hayes, Conveyancing (5th Ed.), 258. See Angell, Limitations, Sec. 361, quoting 3 Cruise's Dig. tit. 31, ch. 2, Sec. 13. The case of Bassett v. Hawk, 118 Pa, 94, 11 Atl. 802, to the effect that the reversioner or remainderman is barred, is based on the' express provision of the act of 1859.
6. Baxter v. State, 10 Wis.
454. See editorial note 17 Man Law Rev. 55.
7. Stanley v. Schwalby, 147 U. S. 508, 37 L. Ed. 259; El Paso v. Ft. Dearborn Nat. Bank, 96. Tex. 496, 74 S. W. 21.
8. Atty. Gen. v. Ellis, 198 Mass. 91, 15 L. K. A. (N. S.)
1120, 84 N. E. 430; Eldridge v. Binghampton, 120 N. Y. 309, 24 N. E. 262; Birdsell v. Cary, 66 How. Pr. 368; Parker v. Southwick, 6; Watts (Pa) 377.
Entry, that of a cestui que trust. If the possession is adverse to the trustee, so as to bar his right to recover possession after the statutory period, the cestui que trust is also barred.9 This rule, that the cestui que trust must suffer for the negligence of the trustee in failing to sue, has been in terms based on the consideration that were the rule otherwise, the cestui, having no right of action, would never be barred by the statute.10 In further justification of the rule reference has been made to the theory11 that the cestui que trust has, properly speaking, merely a right in personam against the trustee and not an actual estate in the land, and that as he is not liable personally, as is a legal owner, upon an obligation attaching to the land, such as that on a covenant running therewith, so he is not entitled to protection as is a legal owner.12
The bar of the statute being based on the existence of a right of action in favor of the trustee, the fact that the cestui que trust is under disability, such as infancy or coverture, is immaterial,13 as is the fact that the cestui que trust has an equitable estate in remainder only, the legal title in fee being in the trustee.14
9. Elmendorf v. Taylor, 10 Wheat. 152, 6 L. Ed. 360; Cruse v. Kidd, 195 Ala. 22, 70 So. 166; East Rome Town Co. v. Cothran, 81 Ga. 359, 8 S. E. 737; Hall v. Waterman, 220 111. 569, 77 N. E. 142, 4 L. R. A. (N. S.) 776; Barclay v. Goodloe, 83 Ky. 493; Stoll v. Smith, 129 Md. 164, 98 Atl. 530; Walton v. Ketchum, 147 Mo. 209, 48 S. W. 924; Bennett v. Garlock, 79 N. Y. 302, 35 Am. Rep. 517; Cameron v. Hicks, 141 N. Car. 21, 7 L. R. A. (N. S.) 407, 53 S. E. 728; Williams v. Otey, 8 Humph. (Tenn.) 563, 47 Am. Dec. 632; Collins v. Mccarty, 68 Tex. 150, 2 Am. St. Rep. 475, 3 S. W. 730. In Ayer v. Chapman, 145 Ga. 608, 91 S. E. 548, it was held that the statute did not run against the cestui when the trustee named in the creation of the trust did not accept or qualify, and hence there was no person to bring suit. The decision has been criticized on the theory that the heir or personal representative of the creator of the trust held the legal title and could have brought suit on behalf of the cestui. See editorial note, 17 Columbia Law Rev. 568.
10. See the language of Lord Hardwicke in Llewellyn v. Mack-worth, 2 Eq. Cas. Abr. 579, Barn. 445, quoted 2 Perry, Trusts, Sec. 858.
11. Ante, Sec. 103(b).
12. "If a man wants complete legal protection, let him acquire a true proprietary right, with its incident liabilities, for himself." T. Cyprian Williams, Esq. in 51 Solictor's Journal, at p. 156.