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case in question must take by descent from her father, and not by purchase from the testatrix ; (4) that the entire right of the father being barred, his child could take nothing from him by descent, and consequently was not interested in the estate, and was not entitled to prove the will; and (5) that the suppression of the will by the devisees did not preclude bona fide creditors and purchasers, though claiming under the deceased devisee, from interposing the protection of the statute. (Goodman v. Russ, 14 Conn. R. 210.)

CHAPTER VII.

THE STATUTE OF LIMITATIONS AS A BAR TO THE ACTION OF EJECTMENT.

THE LAWS OF THE MIDDLE AND WESTERN STATES, EXCEPT THOSE OF NEW YORK AND NEW JERSEY, GIVEN IN A PREVIOUS CHAPTER.

In the state of Pennsylvania, no person or persons can make entry into any manors, lands, tenements or hereditaments, after the expiration of twenty-one years next after his, her or their right or title to the same first descended or accrued; nor can any person or persons whatsoever have or maintain any writ of right, or any other real or possessory writ or action, for any manors, lands, tenements or hereditaments, of the seisin or possession of him, her or themselves, his her or their ancestors or predecessors, nor declare or allege any other seisin or possession of him, her or themselves, his, her or their ancestors or predecessors, than within twenty-one years next before such writ, action or suit, sued, commenced or brought; provided, that if any person or persons having such right

;; or title be, at the time such right or title first descended or accrued, within the age of twenty-one years, feme covert, non compos mentis or imprisoned, then such person or persons, and the heir or heirs of such person or persons, may bring his or their action, or make his or their entry, so as such person or persons, or the heir or heirs of such person or persons, shall, within ten years next after attaining full age, discoverture, soundness of mind or enlargement out of prison, take benefit of or sue for the same, and no time after the said ten years; and in case such person or persons shall die within the said term of ten years, under any of such disabilities, the heir or heirs of such person or persons will have the same benefit that such person or persons could or might have had by living until the disabilities should have ceased or been removed; and if any abatement happen in any proceeding or proceedings upon such right or title, the same may be renewed and continued within three years from the time of such abatement, but not afterward. But in no case can the time be extended in favor of persons under disabilities beyond thirty years from the time the right of entry accrues.

In the city and county of Philadelphia, the entry may be made or action brought at any time within forty years after the right first accrued.

As between parties other than the commonwealth, thirty years? possession of land is evidence that the commonwealth has parted with the title ; and as against the commonwealth, twenty-one years' possession perfects a defeasible estate. (Purdon's Dig Laws, 1861, pp. 652, 653, 654.)

The general rule is, that after a sale of land, and before a conveyance of a legal title, the vendor is the trustee of the vendee, and the act of limitations will have no operation. But when the vendor disavows the trust, and, after having delivered possession to the vendee, makes a lease to a third person in opposition to the title of the vendee, and the lessee enters and holds possession, the jury may presume a disseisin; and if the vendee suffers twenty years to elapse without prosecuting his claim, it will be barred by the statute of limitations. (Pipher v. Lodge, 4 Serg. & Rawle's R. 310.)

Title by improvement is merely a right of pre-emption, until the purchase is made from the commonwealth. Up to that time possession is not adverse to, but under the commonwealth ; and, therefore, though it continues twenty-one years, it is no bar by the statute of limitations against the state, or her grantee. (Morris v. Thomas, 5 Binn. R. 77.)

In all cases, for the statute of limitations to operate as a bar, the possession must be adverse. (Morris' Lessee v. Van Deren, 1 Dall. R. 67.)

If one tenant in common sell the whole tract and possession be held adversely for twenty-one years, the sale and possession amount to an ouster of the co-tenant, who is barred by the act of limitations. (Cutler v. Motzer, 13 Serg. and Rawle's R. 356.)

In Delaware, no person or persons can make an entry into any lands, tenements, or hereditaments, but within twenty years next after his, her or their right or title first descended or accrued ; nor can any person or persons have or maintain any writ of right, or any action, real, personal or mixed, for, or make any prescription or claim to or in any lands, tenements or hereditaments, of the seisin or possession of him, her or them, his, her or their ancestor or predecessor, and declare and allege in any manner whatever of further seisin of him, her or them, his, her or their ancestor or predecessor, but only an actual seisin or possession of him, her or them, his, her or their ancestor or predecessor, of the premises sued for or claimed within twenty years next before such writ or action had or brought. Provided, that any person having any such right or title of entry who is, at the time of such right or title, first descended or accrued, an infant, feme covert, non compos mentis, or a prisoner, then such person, or the heirs of such person, may, within ten years next after the removal of such disability, but not afterward, proceed, notwithstanding the said twenty years be expired, as might have been done before the same were expired; and if any such person die under any of such disabilities, the heirs of such person have the like benefit that such person might have had by living till the disability had ceased. (Del. Code, 1852, ch. 122, p. 439.)

The general statute of 1843, ninth volume of Delaware Laws, 457, and Revised Code, 3, which provides that twenty years' peaceable and uninterrupted possession of all the vacant lands, with the exception of salt marshes belonging to the state, shall bar any claim of title on the part of the state thereto, is held not to be merely retroactive, but is prospective also in its operation and effect. (Records v. Melson, 1 Houston's R. 139.)

In the state of Maryland, whenever land is taken up under a common or special warrant, or warrant of re-survey, escheat, or proclamation warrant, any person, body politic or corporate, may give in evidence, under the general issue, his possession thereof; and if it appears in evidence that the person, body politic or corporate, or those under whom they claim, have held the lands in possession for twenty years before the action brought, such possession is a bar to all right or claims derived from the state under any patent issued upon such warrant. (1 Maryland Code, 1860, article 57, § 9, p. 397.)

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It has been held by the courts of Maryland, that a right of entry cannot be barred by possession alone, unless it be adverse, exclusive and continuous, for twenty years, and any recognition or acknowledgment of such right by the party in possession will prevent his possession from operating as a bar to such right until twenty years after the acknowledgment has been made. (Stump v. Henry, 6 Md. R. 201.)

A prevalent opinion in the neighborhood of the premises claimed, in an action of ejectment, even if shown and adopted by the lessor of the plaintiff, as to his legal rights, whether founded in error or not, does not, at law, prevent the running of the statute of limitations, nor repel the legal presumption of a grant arising from adverse possession long continued and acquiesced in. The general principle is well established, that possession of a part of a tract or parcel of land, by him who is legally entitled to the entirety, carries with it a possession to the extent of his legal rights, and no wrong-doer can, in contemplation of law, by entry or the exercise of acts of ownership thereon, acquire the possession of any part thereof, but by actual inclosure, or ouster, actual or presumptive. Upon every discontinuance of the possession of a wrong-doer by operation of law, the possession of the rightful owner is restored, and nothing short of an actual adverse and continuous possession for twenty years can destroy his right or vest a title in the wrong-doer. (Casey's Lessee v. Inloes, 1 1 Gill's R. 430.)

Constructive possession always accompanies the right to land; and when a person claims by adverse possession only, without showing any title, he must show an exclusive adverse possession by inclosure, and his claim cannot extend beyond his inclosure. (Cresap': Lessee v. Hutson, 9 Gill's R. 277.)

When the statute once begins to run, the courts of Maryland hold that it continues to run, notwithstanding any subsequent disability, and where a suit terminates by abatement, and is not revived, it takes no time out of the statute of limitations, and the running of the statute is not suspended by the death of the party against whom it commenced to run in his life-time. (Stewart v. Sellman, 5 Maryland R. 433. Young v. Mackall, 4 ib. 362.)

In Ohio, an action of ejectment or any other action for the recovery of the title or possession of lands, tenements or hereditaments, must be brought within twenty-one years after the cause

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of action therefor shall have accrued, and not after. But if any person entitled to bring any such action 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 removed, and at no time thereafter. And if, in any such action commenced within the time limited by the act, jndgment shall be arrested or reversed, or the suit abate, or the plaintiff become nonsuited, and the time limited shall have expired, the plaintiff may commence a new action within one year after such arrest or reversal of judgment, nonsuit .or abatement of action, but not after. (2 Ohio Rev. Stat., 1860, ch. 87, SS 9, 10, 23.)

There have been several important decisions of the courts of Ohio, pronounced in respect to the possession which will be regarded as adverse under the statute of limitations of the state, but they will be more fully referred to when the subject of adverse enjoyment is considered. It may be stated here, however, that the courts invariably hold that the possession under which a person claims to be protected by the statute must be actual, notorious, continued, exclusive and adverse; but whether there is or is not color of title, is regarded as wholly immaterial. (Lessee of Payne v. Skinner, 8 Ohio R. 159. Lessee of Abram v. Wib, 6 ib. 164.)

The courts hold that when the time begins to run against the ancestor it continues to run against the heir, although the latter is an infant. This is held in Ohio to be the universal rule in respect to the statute of limitations, and the general rule in equity when lapse of time is relied on as a bar. (Williams v. The First Presbyterian Church in Cincinnati, 1 Ohio State R. 478.) And the courts further very properly hold, that municipal corporations are subject to the operation of the statute of limitations in the same manner and to the same extent as natural persons; and notorious and uninterrupted possession for more than twenty-one years, by a private individual, under a claim of right, of land dedicated to a city for streets or public squares, it is held, will bar the claim of the city to its use. (Cincinnati v. Evans, 5 Ohio State R. 594. Lessee of Cincinnati v. The First Presbyterian Church, 8 Ohio R. 298.)

In the state of Indiana, no action for the recovery of the possession of real estate can be sustained by any person who shall not

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