Where the plaintiffs in ejectment claimed under a grant from the
State of North Carolina comprehending the lands for which the suit
was brought, and the defendants claimed under a junior patent and a
possession of seven years, which by the statutes of that state and
Tennessee, constitutes a bar to the action if the possession be
under color of title, to repel this defense, the plaintiffs proved
that no corner or course of the grant under which they claimed was
marked except the beginning corner; that the beginning and nearly
the whole land and all the corners except one were within the
Cherokee Indian boundary, not having been ceded to the United
States until the year 1806, within seven years from which time the
suit was brought, but the land in the defendant's possession and
for which the suit was brought did not lie within the Indian
boundary, it was
held that notwithstanding the laws of the
United States prohibited all persons from surveying or marking any
lands within the Indian territory, and the plaintiffs could not,
therefore, survey the land granted to them, the defendants were
entitled to hold the part possessed by them far the period of seven
years under color of title.
The plaintiffs in error brought an ejectment in that court for
5,000 acres of land in possession of the defendant, Ragan, and on
the trial gave in evidence a grant from the State of North Carolina
of 40,000 acres, comprehending the lands for which the suit was
instituted.
The defendants claimed under a junior patent to Mabane and a
possession of seven years held by Ragan which, by the statutes of
North Carolina and
Page 15 U. S. 26
Tennessee constitutes a bar to the action if the possession be
under color of title.
To repel this defense the plaintiffs proved that no corner or
course of the grant under which they claimed was marked except the
beginning corner. That the beginning and nearly the whole land and
all the corners except one were within the Indian boundary, being
part of the lands reserved by treaty for the Cherokee Indians.
These lands were not ceded to the United States until the year
1806, within seven years from which time this suit was instituted.
But the land in possession of the defendant Ragan and for which
this ejectment was brought did not lie within the Indian
boundary.
The laws of the United States prohibited all persons from
surveying or marking any lands within the country reserved by
treaty for the Indians.
Upon this testimony, the counsel for the plaintiffs requested
the court to instruct the jury that
"the act of limitations would not run against the plaintiffs for
any part of the said tract, although such part should be out of the
Indian boundary, until the Indian title was extinguished to that
part of the tract which includes the beginning corner, and the
lines running from it, so as to enable them to survey their land,
and prove the defendant to be within their grant."
But the judge instructed the jury that,
"although the Indian boundary included the beginning corner, and
part of the lines of the said tract, yet, if the defendants had
actual possession of part of the said tract not so included within
the said Indian boundary, and retained possession thereof for
seven
Page 15 U. S. 27
years without any suit's being commenced, the plaintiff would
thereby be barred from a recovery."
To this opinion the plaintiffs by their counsel excepted.
The jury found a verdict for the defendants, or which a judgment
was rendered, and the cause was brought before this Court by writ
of error.
Page 15 U. S. 28
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court,
and after stating the facts, proceeded as follows:
It is contended by the plaintiffs in error that the judge
misconstrued the law in his instructions to the jury.
The case is admitted to be within the act of limitations of the
State of Tennessee, and not within the letter of the exceptions.
But it is contended that as the plaintiffs were disabled, by
statute, from surveying their land, and, consequently, from
prosecuting this suit with effect, they must be excused from
Page 15 U. S. 29
bringing it, and are within the equity, though not within the
letter, of the exceptions.
The statute of limitations is intended not for the punishment of
those who neglect to assert their rights by suit, but for the
protection of those who have remained in possession under color of
a title believed to be good. The possession of the defendants being
of lands not within the Indian territory, and being in itself
legal, no reason exists, as connected with that possession, why it
should not avail them and perfect their title as intended by the
act.
The claim of the plaintiffs to be excepted from the operation of
the act is founded, so far as respects this point, not on the
character of the defendants' possession, but on the impediments to
the assertion of their own title.
Wherever the situation of a party was such as in the opinion of
the legislature to furnish a motive for excepting him from the
operation of the law, the legislature has made the exception. It
would be going far for this Court to add to those exceptions. It is
admitted that the case of the plaintiffs is not within them, but it
is contended to be within the same equity with those which have
been taken out of the statute, as where the courts of a country are
closed, so that no suits can be instituted.
This proposition cannot be admitted. The difficulties under
which the plaintiffs labored respected the trial, not the
institution of their suit. There was no obstruction to the bringing
of this ejectment at an earlier day. If at the trial a survey had
been
Page 15 U. S. 30
found indispensable to the justice of the cause, the sound
discretion of the court would have been exercised on a motion for a
continuance. Had such a motion been overruled, the plaintiffs would
have been in the condition of all those who, from causes which they
cannot control, are unable to obtain that testimony which will
establish their rights. If this difficulty be produced by the
legislative power, the same power might provide a remedy; but
courts cannot on that account insert in the statute of limitations
an exception which the statute does not contain. It has never been
determined that the impossibility of bringing a case to a
successful issue, from causes of uncertain duration, though created
by the legislature, shall take such case out of the operation of
the act of limitations unless the legislature shall so declare its
will.
It as also been contended that in this case the possession is
not under color of title.
The ejectment was served on Ragan, who was the tenant in
possession, and on his motion David Mabane and John Thomson,
executors of the last will and testament of James Mabane, deceased,
and landlords to the said Henry Ragan, were admitted as defendants
with him in the cause. At the trial they produced a grant for the
land in controversy to James Mabane, and proved "that Ragan took
possession of the same, under James Mabane, the grantee, in 1804,
and continued to occupy the same ever since."
It is argued that though Ragan is stated to have taken
possession under Mabane, he is not stated to
Page 15 U. S. 31
have continued that possession under Mabane, and this Court will
not presume that he did so. Without such presumption, his
possession, it is said, would not be under color of title, and
consequently would be no bar to the action according to the statute
of Tennessee.
The Court cannot yield its assent to this hypercriticism on the
language of the exceptions. The representatives of Mabane came in
as defendants and plead the general issue. They are stated on the
record to be the landlords of Ragan. When Ragan is said to have
taken possession under Mabane and to have continued to occupy the
land, the fair inference is that the possession was continued under
the same right by which it was originally taken. Neither the
statement of the counsel nor the opinion of the Court turns in any
degree, on the nature and character of Ragan's possession, but on
the disability of the plaintiffs to survey their land. For all
these reasons, this Court is decidedly of opinion that the
possession of Ragan was the possession of Mabane, and was under
color of title.
Judgment affirmed.
