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
�640, Thomas Swann executed a receipt fully discharging him as
guardian. John Page, the eldest son of Mrs. Selden died in 1800,
having devised all his estate, real and personal, after the death
of his widow, Elizabeth K. Page, to two of the children of his
brother William Byrd Page, to-wit, William B. Page and Mary M.
Page, and to three of the children of his sister, Jane B. Swann,
to-wit: Edward, Mary, and Thomas, as tenants in common. Edward and
Thomas died intestate and without issue. Mary intermarried as above
stated with John Mercer.
After John Page, the above testator, had attained full age, on
21 December, 1792, he settled with Selden his guardian, and
executed to him a release from all demands.
Thomas Swann, surviving his wife, conveyed by deed duly executed
all his interest in the premises to his surviving children.
After William Byrd Page had attained full age, he made a claim
against Selden on account of inequality in the partition of the
aforesaid four thousand acres of land, which claim was finally
adjusted by the payment of one thousand pounds and the purchase of
five hundred acres of his land by Selden. And afterwards, on 23
July, 1794, Page, having received full satisfaction from Selden as
guardian, executed to him a release, &c.
From the death of Wilson Cary Selden up to the present time, the
defendant, his son, has held the actual possession of the premises
in dispute, claiming the same as his own, under the will of his
father.
On 6 December, 1819, the lessors of the plaintiff, claiming as
heirs of Mrs. Swann, with others, instituted their suit in the
Superior Court of Chancery held at Winchester, against Wilson Cary
Selden and others, claiming the lands now in controversy, upon
certain defects, in the conveyances under which Selden claimed and
upon alleged equities. Answers were filed, and upon the final
hearing in October, 1830, a decree was pronounced whereby the
court,
"disclaiming jurisdiction of the alleged imperfections in the
conveyances aforesaid, but taking jurisdiction
Page 42 U. S. 51
of the matters of equity, adjudged and decreed that the
plaintiffs' bill should be dismissed with costs, but without
prejudice to any suit at law which the plaintiffs might be advised
to prosecute on account of the alleged legal defects, or want of
validity in the said deeds."
This decree, on an appeal to the supreme court of appeals, was
affirmed 17 April, 1837.
This cause has been ably and elaborately argued. Some points
have been made and illustrated with great research and ingenuity
which, from the view taken of the case by the Court, are not
essentially involved in the decision. Among these are the
construction of the statutes under which the deed from Selden and
wife to Cary Selden in 1784 was executed and recorded, and also the
deed from Selden and wife to Mackay, in 1787.
We will consider the case in reference to the statute of
limitations.
The statute of 1785 bars the right of entry unless suit be
brought within twenty years next after the cause of action accrues.
The savings are "infancy, coverture,
non compos mentis,
imprisonment, or not being within the commonwealth at the time the
right of action accrued." And such persons are barred if they do
not bring their action within ten years next after their
disabilities shall be removed.
Selden took possession of the premises in controversy, claiming
them as his own under the deed from Mackay in the fall of 1787.
Prior to that time, his possession was in right of his wife. Under
the deed from Mackay, his possession was adverse to the right of
the lessors of the plaintiff. He avowed his ownership by placing
the deed upon record, by enjoying the profits of the land, and by
selling and conveying different parcels of it.
In no sense can he be considered as holding possession in virtue
of his rights as guardian of the heirs of his deceased wife or as
tenant by the curtesy. The right under which he held possession
during the life of his wife terminated at her death, there being no
issue of the marriage. From this time he possessed and claimed the
premises as his own. This was notorious to the public, and
especially to the heirs of his wife. John Page, in his lifetime,
settled with Selden as guardian and executed to him a release of
all demands. William Byrd Page received from him one thousand
pounds, the estimated difference in value between
Page 42 U. S. 52
the part of the four thousand acres conveyed to him over that
which was conveyed to Page. Thomas Swann, the husband of Jane Byrd
Page, actually purchased from Selden a part of the land conveyed to
him by Mackay. Swann, at the time of the purchase, was a highly
respectable lawyer, and not only knew that Selden claimed the land
adversely, but he recognized the validity of such claim by the
purchase.
Until his death in 1835, Selden continued in possession of the
premises, and his son, the defendant, still holds the same
adversely under his father's will. From these facts it is clear
that the lessors of the plaintiff are barred by the statute, unless
they shall bring themselves within its exceptions.
The right of action accrued in 1787. At that time, Jane Byrd
Page, being an infant, was within the exception of the statute, and
it is insisted that her marriage with Swann before she was
twenty-one years of age added to her first disability that of
coverture.
Mr. Preston, in his Abstracts, 2 vol. 339, says
"If the right accrues to a person who is at that time under a
disability, the fine will not begin to run against him till he
shall be free from disability, and successive disabilities, without
any intermission, will continue to him a protection against being
barred by nonclaim; but any cessation of disability will call the
statute into operative force, and no subsequent disability will
arrest the bar produced by the statute."
The saving in the Virginia statute is the same as that of 21
Jac. 1, but it has received in this country a different
construction from that stated by Mr. Preston. In
Parsons v.
McCracken, 9 Leigh. 495, Mr. Justice Parker says, speaking of
this statute,
"I am of opinion that cumulative disabilities ought not to
prevent its operation, and that upon a sound construction of the
act, a party claiming the benefit of the proviso can only avail
himself of the disability existing when the right of action first
accrued, since otherwise the assertion of claims might be postponed
for the period of the longest life, and possessions disturbed after
sixty, eighty, or even a hundred years."
In that case, as in the one under consideration, the female in
whom the right vested married before the disability of infancy had
ceased.
Page 42 U. S. 53
In the same case, Mr. Justice Brockenborough says
"If she married after she became of age, her subsequent
coverture was not a disability which would obstruct the operation
of the statute, and even if she married while yet an infant, we
cannot mount one disability on another so as to prevent a
continuous obstruction to its operation."
Mr. Justice Tucker says,
"It is true that Rebecca was an infant, but she came of age in
1824, when her disability ceased; for, notwithstanding some loose
opinions to the contrary, she cannot tack the disability of
marriage to that of infancy."
The same doctrine was recognized by the court of appeals, in the
chancery case lately decided in that court, between the parties now
before us. The same principle is sanctioned 2 Hen. & Munf. 306,
and in
Eager v. Commonwealth, 4 Mass. 182;
Jackson v.
Wheat, 18 Johns. 40;
Demarest v. Wynkoop, 3 Johns.Ch.
129.
Chancellor Kent says, in the last case cited, "I am clearly of
opinion, that the party can only avail himself of the disabilities
existing when the right of action first accrued." In 1 Plowd. 375
it is laid down that, "if several disabilities exist together at
the time the right of action accrues, the statute does not begin to
run until the party has survived them all." In
Doe v.
Jesson, 6 East 80, it was held that cumulative disabilities in
different persons could not be added.
At the time of her marriage in April, 1794, Mrs. Swann wanted
about three months of being of full age. Of course, in July
ensuing, she was of age, from which time the statute began to
operate, and in twenty years would have barred her right of entry,
had she survived. But her death in 1812 arrested the operation of
the statute, and gave her heirs ten years within which to bring
their action. The proviso in the statute, after enumerating the
exceptions, among which are infancy and coverture, declares
that
"Every such person and his or her heirs shall and may,
notwithstanding the said twenty years are, or shall be expired,
bring and maintain his action, or make his entry, within ten years
next after such disabilities removed, or the death of the person so
disabled, and not afterwards."
By the settled construction of this proviso, the heir has ten
years to bring his action, where his ancestor is not barred.
This
Page 42 U. S. 54
time is given him without reference to the time that has elapsed
or the disabilities of his ancestor, if the right of entry has not
been tolled.
But it is insisted that the right of entry did not devolve on
the heirs of Mrs. Swann at her decease, as her husband became
tenant by the curtesy.
In 1 Coke on Litt. 29, c. 4, sec. 35, it is said
"Tenant by the curtesy of England is where a man taketh a wife
seized in fee simple, or in fee tail general, or seized as heir in
tail special, and hath issue by the same wife, male or female, born
alive, albeit the issue after dieth or liveth, yet if the wife
dies, the husband shall hold the land during his life, by the laws
of England."
"And first, of what seizin a man shall be tenant by the curtesy.
There is in law a twofold seizin --
viz., a seizin in deed
and a seizin in law. And here Littleton intendeth a seizin in deed,
if it may be attained unto, as if a man dieth seized of lands in
fee simple, or fee tail general, and these lands descend to his
daughter, and she taketh a husband and hath issue, and dieth before
any entry, the husband shall not be tenant by the curtesy, and yet
in this case she had a seizin in law; but if she or her husband had
during her life entered, he should have been tenant by the
curtesy."
The wife at common law was endowable where there had been no
actual possession, and the reason is that during coverture she
could not take possession of the lands of her husband. But actual
seizin was necessary to enable the husband to claim as tenant by
the curtesy. This rule was not inflexible. It yielded to
circumstances, as in the case of an advowson, or rent, or where an
entry was prevented by force. Litt. s. 417, 418. In like manner, if
a man have a title of entry into lands, but does not enter for fear
of bodily harm, and he approach as near the land as he dare, and
claim the land as his own, he hath presently, by such claim, a
possession and seizin in the land, as if he had entered in deed.
Litt. s. 419. And under some circumstances, living within view of
the land will give the feoffee a seizin in deed, as fully as if he
had made an entry. It has been held that the husband may claim as
tenant by the curtesy, without entry, wild lands of which his wife
was seized, and which were not held adversely. But the general rule
of law is that
Page 42 U. S. 55
there must be an entry during coverture to enable the husband to
claim by the curtesy.
At no time during the life of Mrs. Swann does it appear that
there was an entry upon the premises in controversy by herself or
her husband. On the contrary, it appears the defendant and his
ancestor held the land adversely. It is clear, therefore, that
Swann could not claim as tenant by the curtesy, and consequently no
such right could interpose to prevent the entry of the heirs of his
wife. They were bound, without regard to their infancy or other
disabilities, to bring their action in ten years from the decease
of their ancestor. This results from the fact, that the right of
action accrued in the lifetime of their ancestor, and the rule of
law, which does not admit of cumulative disabilities.
By the same principles, the devisees of John Page, who died in
1800, are also barred. The statute also bars the right of entry in
William Byrd Page.
From this view of the case it can scarcely be necessary to
notice the bill of exceptions taken on the trial by the plaintiff.
So far as evidence was offered to disprove the consideration named
in the deed to Mackay with the view of rendering it invalid, the
evidence was properly rejected. And so far as regards the
circumstances which the plaintiff offered to prove, they could have
no other, if any effect, than to create a suspicion of unfairness
or fraud in the execution of the deed. All matters of fraud and
trust arising out of this transaction were considered and decided
in the case in equity lately brought before the Court of Appeals of
Virginia by the parties to the present suit. If that jurisdiction
were rightfully exercised, it concludes all questions of fraud in
this case. Upon the whole, we
Affirm the judgment of the circuit court.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Virginia and was argued by counsel. On consideration
whereof it is now here ordered and adjudged by this Court that the
judgment of the said circuit court in this cause be and the same is
hereby affirmed with costs.