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 statute of limitations invariably extends the period for bringing an ac81. Little v. Vice, - Ala. - , 76 So. 942; Lucy v. Tennessee & C. R. Co., 92 Ala. 246, 8 So. 806; City & County of San Francisco v. Fulde, 37 Cal. 349, 99 Am. Dec. 278; Smith v. Chapin, 31 Conn. 531; Mcentire v. Brown, 28 Ind. 347; Sawyer v. Kendall, 10 Cush. (Mass.) 241; Sherin v. Brackett, 36 Minn. 152, 30 N. W. 551; Crispen v. Hannavan, 50 Mo. 536; Locke v. Whitney, 63 N. H. 597, 3 Atl. 920; Low v. Schaffer, 24 Ore. 239, 33 Pac. 678; Erck v. Church, 87 Tenn. 75, 4 L. R. A. 641, 11 S. W. 794; Heflin v. Burns, 70 Tex. 347, 8 S. W. 48; Jarrett v. Stevens, 36 W. Va. 445, 15 S. E. 177.
82. Fanning v. Willcox, 3 Day 258; Shannon v. Kinny, 1 A. K. Marsh 3; Hord v. Walton, 2 A. K. Marsh 620; Candler v. Lunsford, 4 Dev. & B. 407; Davis v. Mc-arthur, 78 N. C. 357; Scales v.
Cockrill, 3 Head, 432. And see Wishart v. Mcknight, 178 Mass. 356, 86 Am. St. Rep. 486, 59 N. E. 1028.
83. 3 Harv. Law Rev. at p. 324, article by Professor J. B. Ames, reprinted, Lectures on Legal History, at p. 205. See also 1 Harvard Law Rev. 248, 10 Columbia Law Rev. 761. The merits of the prevailing view are excellently presented by Professor Henry W. Ballantine, 32 Harv. Law Rev. at p. 147 et seq.
84. Louisville N. R. Co. v. Philyaw, 88 Ala. 264, 6 So. 837; Kilburn v. Adams, 7 Mete. (Mass.) 33, 39 Am. Dec. 754; Turner v. Baker, 64 Mo. 218, 27 Am. Rep. 226; Brandt v. Ogden, 1 Johns. 156; Jackson v. Leonard. 9 Cow. (N. Y.) 653; Cunningham v. Patton, 6 Pa., 355; Warren v. Fredericks, 76 Tex. 647, 13 S. W. 643; Winslow v. Newell, 19 Vt.
Tion to recover land in case the plaintiff was under disability at the time the right of action accrued. The Statute of James I. contained such provision in favor of (1) persons under twenty-one years, (2) femes covert, (3) persons non compos mentis, (4) persons imprisoned, and (5) persons "beyond the seas."
The saving clause in favor of infants is retained in most, if not all, of the state statutes, though the time at which infancy ceases differs in different states. The saving in favor of married women also still exists in the majority of states, though in some it has been expressly abolished, in view of legislation enabling a married woman to sue alone. The saving in favor of persons non compos mentis is usually retained, and those in favor of persons imprisoned and of persons "beyond the seas," or, what is regarded as equivalent, "absent from the United States," are also frequently to be found. In some states, moreover, there are exceptions in favor of alien enemies. The statutes differ greatly as to the ox-tent of time after the removal of the disability within which an action may be brought, some naming the full period of limitation, and others naming a much shorter period.85
These exceptions in statutes limiting the time for the recovery of land, as in those applicable to personal actions only, are usually construed as applicable only to a disability existing at the time of the accrual of the right of action, and the fact that a disability in the owner to sue arises after such accrual docs not affet the running of the statute.86 Accordingly, if the right of action has once existed in favor of a person, the fad that it passes from him. by descent to one under the disability of infancy does not extend the time for bringing suit.87 And if a disability existing at the time of the disseisin or other accrual of the cause of action is once removed, the fact that a subsequent disability intervenes, as when a female infant, after arriving at age, marries, such subsequent disability does not operate in her favor.88
164; Jarrett v. Stevens, 36 W. Va. 445, 15 S. E. 177.
86. Doe d. Caldwell v. Thorp, 8 Ala. 253; Wellborn v. Weaver. 17
Ga. 267, 63 Am. Dec. 235; Currier v. Gale. 3Allen (Muss.) 828; arest v. Wynkoop, 8 Johns Ch. ( N. Y.) 129, 8 Am Dec, 176; Holmes v. Carr, 172 N. C. 218, 90 S. E. 152; Milton v. Pace, 85 S C 878, 67 S. B. 458.
If the owner of the land is under two or more disabilities at the time of the accrual of the cause of action, he may take advantage of both, or, rather, of the one which endures the longest;89 but if only one disability exists at that time, he can take advantage of that alone, and the fact that, before such disability terminates, another intervenes, as when an infant feme sole marries, does not extend the time for the recovery of the land, or, as it is frequently stated, disabilities cannot be "tacked."90 Likewise, the disabilities of different per87. Harris v. Mcguvern, 99 U. S., 61 affirming 2 Sawy. 515, Fed. Cas. No. 6125; Oates v. Beck-worth, 112 Ala. 356, 20 So. 399; Castro v. Geil, 110 Cal. 292, 52 Am. St. Rep. 84, 42 Pac. 804; Doyle v. Wade, 23 Fla. 90, 11 Am. St. Rep. 334, 1 So. 516; Hale's Heirs v. Ritchie, 142 Ky. 424, 134 S. W. 474; Ray v. Thur-man's Ex'r, 13 Ky. L. Rep. 3, 15 S. W. 1116; Burdett v. May, 100 Mo. 13, 12 S. W. 1056; Lyons v. Carr, 77 Neb. 883, 110 N. W. 705; Jackson v. Moore, 13 Johns. (N. Y.) 513, 7 Am. Dec. 398; Campbell v. Dick, - Okla. - , 157 Pac. 1062; Lynch v. Cox, 23 Pa. 265; Fore v. Berry, 94 S. C. 71, 78 S. E. 706; Pickens v. Stout, 67 W. Va. 422, 68 S. E. 354. Contra, Everett's Ex'rs v. Whitfield's Adm'rs, 27 Ga. 133. That the disability of a devisee is not available, if the statute had begun to run in favor of testator, see De Hatre v. Edmunds, 200 Mo. 246, 98 S. W. 744.
88. Gherson v. Brooks, - (Ark.) -, 5 S. W. 329; Keil v. Healey, 84 111. 104, 25 Am. Rep. 434; Priddy v. Boice, 201 Mo. 309, y9 S. W. 1055, 119 Am. St. Rep. 762, 9 Ann. Cas. 874, 9 L. R. A. (N. S.) 718.
89. Jackson v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 433; Butler v. Howe, 13 Me. 397; North v. James, 61 Miss. 761; Keeton's Heirs v Keeton's Adm'r, 20 Mo. 530; Blake v. Hollands-worth, 71 W. Va. 387, 43 L. R. A. (N. S.) 714, 76 S. E. 814.
90. Bunce v. Wolcott, 2 Conn. 27; White v. Clawson, 79 Ind. 188; Duckett v. Crider, 11 B. Mon. (Ky.) 188; Wickes v. Wickes, 98 Md. 307, 56 Atl. 1017; sons cannot be tacked, in order to make up the statutory period; and so, if the owner is under a disability from the time of the accrual of the right of action till his death, his infant heir cannot tack his own disability to that of his ancestor, in order to extend the statutory period.91