tions in respect to disabilities is often regulated by the express terms of the statute itself; and hence the matter cannot be safely determined, except by a reference to the chapters wherein the provisions of the statute are given. Coverture is generally enumer ated as one of the disabilities which will prevent the running of the statute of limitations; but in many of the states, married women are now authorized to sue for the recovery of their lands; and in some instances, it has been held that, since the statute authorizing married women to sue, the disability of coverture is abrogated; and if the married woman was an infant, in such case then the disability of both coverture and infancy was abrogated. (Brown v. Cousens, 51 Maine R. 301. Thompson v. Craig, 24 Texas R. 583.)

In concluding the discussion of the subject of adverse possession under the statute of limitations, it may be affirmed as a general rnle that no person can acquire title to real estate, as against the true owner, by an adverse possession, who is incapable in law of taking and holding lands; that is to say, the law will not, by its own operation, cast a title to land upon one not competent to take as a purchaser. But, notwithstanding the general rule, the statute of limitations will furnish a defense to an action, by the true owner, against any person in possession claiming the same adversely, whether he is capable of holding land by purchase or descent, or not. In an issue of adverse possession for the statutory period, the question of actual title is never tried. The plaintiff is barred of his action, because he has been shut out of possession by an adverse claimant for the whole term prescribed by the statute. As has been pertinently observed, the defendant in possession in such a case has a right to stand on the defensive. The real question, in all cases, respects the plaintiff's right to the remedy, and not to the defendant's title to the estate. The claimant's title may remain, but he has lost his remedy, because the door of justice is closed to him. And the supreme court of Massachusetts has gone even further than this, and held that an alien may acquire title as against the state by an adverse possession long enough to bar the right of entry. (Piper v. Richardson, 9 Metc. R. 155, 157.) But, as a general thing, an alien cannot hold land as against the state, although there may be nothing in the statute to prevent aliens occupying lands adversely to the titles of citizens; and it has been expressly held by the courts of New York, that, when citizens per

mit aliens to hold their lands adversely for twenty years, they will be barred from recovering them, in the same manner that they are when they permit citizens to hold them adversely for a like period. (Overing v. Russell, 32 Barb. R. 263. Munro v. Merchant, 28 N. Y. R. 9.) So it would seem that, as a general rule, any person. is capable of holding lands adversely so as to bar the true owner of his action to recover the same, and, under the statutes of some of the states, the rule will extend even to the title of the state.

CHAPTER LIII.

OF CONVEYANCES OF LAND WHILE IN POSSESSION OF PARTIES HOLDING ADVERSELY TO THE GRANTOR THE EFFECT OF ADVERSE POSSESSION

UPON SUCH GRANTS CONCLUSION.

Ir now only remains, in conclusion, to consider very briefly the subject of conveyances of real estate by parties out of possession, and while the same is held adversely to the title of the grantor. It is a general rule of the common law, that a conveyance of land, by a person against whom it was adversely held at the time of making it, is absolutely void; and the reason of this rule, according to an ancient authority, is "for avoiding of maintenance, suppression of right, and stirring up of suits; and, therefore, nothing in action, entry or re-entry can be granted over; for so, under color thereof, pretented titles might be granted to great men, whereby right might be trodden down and the weak oppressed, which the common law forbiddeth, as men to grant before they be in possession." (Coke on Litt. 214, a.)

By old English statutes, it was prescribed that no one should buy or sell unless the vendor had been in possession of the land, or received the rents for the same during the year previous; and, in the reign of Henry the Eighth, it was enacted that no one should sell or purchase any pretended right or title to land, unless the vendor had received the profits thereof for one whole year before such grant, or had been in actual possession of the land, or of the reversion or remainder, on pain that both purchaser and vendor should each forfeit the value of such land to the king and the prosecutor. (32 Henry VIII, ch. 9.) Similar prohibitory

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laws have been generally adopted in this country, and in some states, as in Massachusetts, where there is no statute on the subject, champerty has been held to be an offense at common law, and a conveyance by a dísseisor is invariably held to be unlawfa and void. The statute of 32 Henry VIII, ch. 9, though never re-enacted in Massachusetts, has been adopted in that commonwealth in practice, and is therefore considered as part of the common law there. (Brinley v. Whiting, 5 Pick. R. 348, 353. And vide Somes v. Skinner, 3 ib. 61, n. 2. Cleverley v. Whitney, 7 ib. 36. Loud v. Darling, 7 Allen's R. 205.) And so far as the law declares that a conveyance by a person out of possession, where the land is held adversely to the grantor, is void, the rule is quite generally recognized in all of the American states; although in some few of the states transactions of this nature are not held to be unlawful. (Vide Hadduch v. Wilmarth, 5 N. H. R. 181. Whittemore v. Bean, 6 ib. 47. Stoever v. Whitman, 6 Bin. R. 420. Cressen v. Miller, 2 Watt's R. 272. Dramen v. Walker, 21 Ark. R. 539. Doe v. Stephens, 1 Houst. R. 31. Aldridge T. Kincaid, 2 Littell's R. 393. Frizzle v. Beach, 1 Dana's R. 211. Norman v. Lee, 2 Black's R. 499. Stewart v. Sweeney, 14 Wis. R. 468.) So, also, in some instances, innovation has been made upon the general rule, by allowing a person claiming title to lands, possession of which is held adversely, to execute a mortgage of such lands, which shall be valid and have preference over subsequent judgments, or mortgages executed by the mortgagor, in case he shall ultimately recover title; and sometimes the courts have made an exception as to conveyances of lands held adversely, if such conveyance was in pursuance of a contract entered into before the adverse possession commenced. But it is not proposed to give the statutes of all the states upon the subject, bnt only to state some general principles which may be regarded as quite universal in their application, whether there be or be not statutes existing upon the subject. By the statute of New York, every grant of lands is absolutely void, if at the time of the delivery thereof the lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor. (1 Stat. at Large, 690, $ 147.)

Under the New York statute, it is quite obvious that a con Fey. ance of lands which are at the time held adversely to the grantor is inoperative and void; and it would seem to follow from this

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doctrine that the title in such case remains in the grantor, and that he may assert it in the same manner as though the deed had not been made. Indeed, it is well settled, that, as between grantor and grantee, and persons standing in privity with them, the deed is operative and passes the title. (Jackson v. Demont, 9 Johns. R. 55. Livingston v. Peru Iron Co., 9 Wend. R. 516. Van Holsen v. Benhain, 15 ib. 164.) From the two propositions, that the owner in such a case has parted with his title, and that the grantee cannot assert it on account of the adverse holding which avoids the deed, it has sometimes been supposed to result as a necessary consequence that the title was extinguished or lost. But it has been repeatedly held that no such consequence follows. (Jackson v. Brinckerhoff, 3 Johns. Cases, 101. Jackson v. Vredenburgh, 1 Johns. R. 159. Williams v. Jackson, 5 ib. 489. Jackson v. Leggett, 7 Wend. R. 377.) It may be. laid down as a maxim of the law, that a title which once existed must continue to reside somewhere ; it cannot be annihilated. The whole apparent difficulty arises from an inaccurate statement of the consequence which results from the adverse holding at the time the deed is executed. It is often said in the books, without any qualification, that the deed is void. But that is held to be only true in relation to the person holding adversely, and those who afterward come in under him. As to all the rest of the world the deed is valid, and passes the title from the grantor to the grantee. The deed is void as against the party who might otherwise be injured; but it is good as to all others. If the person who held adversely voluntarily abandon the possession, there can be no doubt that the grantee may enter and enjoy the land. Or, if after such abandonment a stranger enter, the grantee may bring ejectment and oust him. The stranger was in no peril of being injured by the conveyance. His entry was tortions, and he will not be allowed to cover himself with a shield which belongs to another, between whom and himself there is no legal privity. But, as against the person holding adversely, the deed is utterly void — a mere nullity. There was an attempt to convey, but the parties failed to accomplish the object; and it is held, that, as against the adverse possessor, the title still remains in the original proprietor, and he may sue to recover the land. (Livingston v. Proseus, 2 Hill's R. 526.). The true principle was recognized quite recently in the New York court of appeals, in a case wherein it was decided, that a deed of lands held in adverse

possession is good as against the grantee and his heirs, and against strangers, though void as against the party in possession; and, being void as to the latter, an action will lie against him in the name of the grantor notwithstanding such deed, but not in the name of the grantee. A recovery therein, however, will inure to the benefit of the grantee. (Hamilton v. Wright, 37 N. Y. R. 502.) And the same doctrine is recognized in other states. (Wade v. Lindsey, 6 Metc. R. 413, 414. Betsey v. Torrence, 34 Miss. R. 138, 139. Stockton, 1 Doug. R. 567. Wilson v. Nance, 11 Humph. R. 191. Edwards v. Parkhurst, 21 Vt. R. 472.) This being the rule, the question might arise as to the real object of the statute, or the benefit which is to accrue by reason of the enactment. But it is enough that the statute exists, and such is the construction given to it by the courts. And in the state of Massachusetts, where the common law prevails upon this subject, it has been held, that a conveyance by a disseisor is unlawful and void, but that the title remains in the grantor; so that, in a writ of entry bronght by him, the tenant cannot plead that the demandant, after the disseisin, made such an unlawful conveyance, and that the action is brought at the expense and for the use of the grantee in pursuance of an unlawful agreement between him and the grantor. (Brinley F. Whiting, 5 Pick, R. 348. And vide- Wolcott v. Knight, 6 Mass. R. 418. Everenden v. Beaumont, 7 ib. 76. Swett v. Poor, 11 ib. 549.) Said Parker, Ch. J., in the case of Brinley v. Whiting, supra: "To establish such a defense would be to transfer the title of the land from the demandant to the tenant, by way of punishment for the attempt to convey it unlawfully; but neither the statute of 32 Henry VIII, nor the common law, establishes snch penalty; nor do we find that either in England, where the offense probably was common at and after the passing of the statute, or in this commonwealth, where the principles of that statute have been so far adopted, at least, as that the buying of disputed title, under circumstances which show an intent to disturb men in their possession, has been held criminal, or in New York, where the legislature have re-enacted the statute of 32 Henry VIII, almost in its very words, such a consequence has been attributed to the offense. By the statute itself the culpable parties are made subject to forfeiture, the one, of a sum equal to the price which he contracted to receive, and the other, of the value of the land so attempted to be pur chased, and the conveyance is rendered null and void. The title

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