Mercer v. Selden
42 U.S. 37 (1843)

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U.S. Supreme Court

Mercer v. Selden, 42 U.S. 1 How. 37 37 (1843)

Mercer v. Selden

42 U.S. (1 How.) 37




The statute of limitation of Virginia passed in 1735 barred the right of entry unless suit was brought within twenty years next after the cause of action accrued. The savings are infancy, coverture &c., and such persons are barred if they do not bring their action within ten years next after their disabilities shall be removed.

The circumstances under which the defendant held in this particular case, constitute an adverse possession.

Disabilities which bring a person within the exceptions of the statute cannot be piled one upon another, but a party claiming the benefit of the proviso can only avail himself of the disability existing, when the right of action first accrued.

The general rule of law is that there must be an entry during coverture, to enable the husband to claim a tenancy by the curtesy.

The facts in the case are stated in the commencement of the opinion of the Court, which the reader is requested to turn to and peruse before referring to the sketch of the arguments of counsel.

The decision of the court being made to rest entirely upon the statute of limitations, all those branches of the argument relating

Page 42 U. S. 38

to the invalidity of the deed from Selden and wife to Dr. Mackay, on account of its not having been read to her, and of a defect in its acknowledgment, are omitted.

Page 42 U. S. 48

The opinion of the court was delivered by MR. JUSTICE McLEAN.

An action of ejectment was commenced by the lessors of the plaintiff to recover possession of certain undivided interests in a tract of land in Loudon County.

On the trial, the jury found a statement of facts, on which the questions of law mainly arise.

Mary Mason Selden was seized and possessed in fee simple of certain tracts of land in the County of Loudon, estimated to contain four thousand acres, a part of which is the land in controversy. She intermarried with Mann Page, who died in 1779, leaving his wife and three infant children, John, William Byrd, and Jane Byrd. Mrs. Page continued a widow, seized in her own right, until 1782, when she married Wilson Cary Selden, who in right of his wife entered upon and held the lands. Soon after the marriage, Selden became guardian of the three infant children aforesaid, gave bonds &c., and continued to act as guardian during the minorities of the two sons and until the marriage of the daughter.

On 22 December, 1784, Selden and wife conveyed in fee simple to Cary Selden, father of the husband, the whole of the four thousand acres of land, with the exception of two thousand acres deeded to W. B. Page. Mrs. Selden was privily examined, as the statute requires. This deed was acknowledged and recorded by Selden 14 April, 1818, long after the decease of the grantee. On 1 January, 1785, Cary Selden and wife reconveyed the land, with the exception above stated to Wilson C. Selden, which deed was also recorded 14 April, 1818.

Selden and wife, previously to the execution of the above

Page 42 U. S. 49

deed to Cary Selden made a deed to William Byrd Page, son of Mrs. Selden by her first marriage, for two thousand acres, part of the above tract of four thousand acres, which deed was never recorded and cannot now be found. From the time of their marriage, Selden and wife had their permanent dwelling in the County of Gloucester, until they removed to the County of Elizabeth City, where they established their residence. In September, 1787, Mrs. Selden being in a low state of health, accompanied by her husband on a return from the Springs, was taken extremely ill at Winchester, in Frederick County, Virginia, where she died on the 17th of that month. Two days previous to her death, Mrs. Selden with her husband, executed a second deed to William Byrd Page, for two thousand acres by certain metes and bounds, and also a deed to Dr. Robert Mackay for two thousand acres, being the residue of the four thousand acres in Loudon aforesaid. On the 17th, it being the day of her decease, the privy examination of Mrs. Selden was taken to the above deeds by three justices of the peace of Frederick County under a commission issued by the clerk of Loudon County. Selden, on 8 October, 1787, acknowledged the above deeds, and they were ordered to be recorded. On 17 September aforesaid, and after the decease of Mrs. Selden Mackay reconveyed the land conveyed to him as above stated to Wilson C. Selden. This deed was recorded 8 October ensuing.

From the time of his marriage to the decease of Mrs. Selden, Selden, in right of his wife, held possession of the premises in controversy. After her death, he continued to hold possession, taking the rents, issues, and profits for his own use, claiming the land under the above deed. In 1818, when the legal sufficiency of that deed was questioned, he caused the deeds to and from his father to be recorded, as above stated, and so continued to claim the premises under both deeds and to exercise acts of ownership over the land until his death in 1835. Between the years 1796 and 1812, Selden sold, conveyed, and delivered possession to different persons, and among others to Thomas Swann, who had intermarried with Jane Byrd Page, various parcels of the land.

In April, 1794, Jane Byrd Page, with the consent of her guardian, she being under twenty-one years of age, married

Page 42 U. S. 50

Thomas Swann, and died 31 October, 1812, leaving seven infant children, her heirs at law. Among others, Mary Scott, one of the lessors of the plaintiff, who, in June, 1818, being under twenty-one years of age, intermarried with John Mercer, one of the lessors of the plaintiff. In 1796, having received from Selden

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