Den on the Demise of Pearce v. House, 4 N.C. 305, 1 Taylor 305 (1818)

Jan. 1818 · Supreme Court of North Carolina
4 N.C. 305, 1 Taylor 305
DEN on the Demise of SIMON PEARCE and others against HOUSE

DEN on the Demise of SIMON PEARCE and others against HOUSE.

Ejectment to recover a tract of 150 acres 6f land, to which the lessors of the Plaintiff claim title under a deed of oift from ^fohn Harrell, who was seised of the same u " and conveyed it to his grandson Estas.

The issue of Estas failed in 1772 by the‘death of his only daughter and heir at law, who had intermarried with the defendant, who had taken possession under her title, claiming as husband.

Ezekiel and David died before the year 1772. Simon Pearce, one of the lessors of the Plaintiff, is the grandson and heir at law of Ezekiel, vvhose claim it is admitted is saved from the operation of the statute of limitations, bv . 4 ' ^ the disabilities of himself and of those under whom he claims.

The other lessors are the heirs at law of David and Josiah. Soon after the issue of EsiaS became extinct, to wit in October 1779, Josiah commenced an action for the lantí in question against William House, the Defendant, *306which action abated in 1778 by Josiah's death, his issue at*d heirs at law being infants, and that disability has continued in them until within three years next before the commencement of this action.

*305When tfce statute of li™.ce begin* P,run> no subsequent disab lityvfilk stop it. Tarefera cestor bro’t wkl^na'year after his title accrued, and continufi until it abat<w death,at* iv.¥ch Per!o^ his issue1 <ind h&rs at law-were infants, & they bro’t ment wohm" at fall age, it barred.

*306Noah, the son of David, cam'e of age and brought an e-jectment in 1782, and was nonsuited in 1783 ; he after-wards about the same year, took possession of that part of the land which had been allotted to the widow of Esias, and he, and those claiming under him, have been in posses - sion evef since, but under what title does not appear.

Twenty five or thirty years ago, the Defendant House obtained a deed in fee from the heir at law of the donor in the deed of gift, and has continued in possession thereof in virtue of his marriage with the heir at law of Esias.

Browne, for the Plaintiff

The reason of the limitation of actions is precisely the same wherefore a descent cast tolled an entry; * it ought to follow then, that whatever prevented an eiitfy from being tolled by descent, ought to prevent the statute of limitations front running. Where the strongest construction was put on the stattite of limitations, it was compared to a descent at common law>† But the act of 1715, by its very words, only imposes a limitation on the prior right of entry in a particular case, where the person having that light of entry did not enter or make claim within seven years &c. leaving the right unimpaired in every other case; and in this respect it is different from 21 Jac 1. Cap 16. A claim by action will avoid a fine-‡ If one man was in possession of another lands without title, as a disseisor, or with title, and the real owner, for fear of beating, maiming, death or im* prisonment, dareth not enter, then he may make claim, and this claim gives him actual possession and seisin of the lands in law.§ And if the tenant die within a year and a day after the claim, the claimant may enter on his heirs, which proves that the seisin and possession of the claimant, which was oiiginally given to him by the law, *307Continued in contemplation of law for the year and day.* Because 1. If the disseisor dies within the year, without any claim made by the disseisee, his entry is tolled seel, 426; for the general rule is that a descent from a person dying seised and possessed, tolls an entry, and the making of claim prevents the operation of this rule, because in cofitemplation of law, for a year and a day, the disseisee had possession and seisin, and not the disseisor. 2. If the father* disseisee die, and then the disseisor die within the year and day, after claim made by the father, the heir of the disseisee cannot enter on the heir of the disseisor, because by the death of the disseisee, the possession and sei-sin which the law vested in him ceased, and then the dis-seisor died seise † seetts if the disseisor had died in the lifetime of the disseisee. A claim however only amounts to an entry and vests and continues the possession and seisin in the claimant only for his benefit, and not for his disadvantage.‡ Entering on the land for the purpose of claiming, is a claim and not an entry.§ Bringing and con-tinuingtoprosecuteasuitwasacontinualclaim.ǁ When a man does all that the law authorises him to do, that is# brings a suit, it amounts to a claim, and vests the seisin and possession in him for his benefit; and continuing to do all that the law enabled him to do, that is, prosecuting the suit, must continue the possession and seisin in him.

A. Henderson, for the

It is undoubtedly settled, that when the statute of limitations begins to run, a subsequent disability will not stop its running It began to run against Josiah in 1772, and continued to run, notwithstanding the suit in ejectment brought by him; for that alone is not sufficient to stop it; there must have been an actual entry. “ A claim or entry to prevent the statute of limitations must beupon the land, unless there be some special reason to the contrary.”* The entry which is confessed by the Defendant in one ejectment, being only fictitious, can have no influence upon a second *308ejectment brought after the time has run.* Trusting the case to these obvious principles, it is unnecessary to enter into an examination of the effect of bringing a real action, either as revesting the seisin, or impeding the efflux of time.

Seawell, J.

I think the Plaintiff is bound by the act of limitations, and therefore cannot recover.

An ejectment is a possessory action, and the lessor of the Plaintiff must have the right to enter for the purpose of making the lease. Whenever that right is destroyed, the ejectment, which is founded upon such supposed right, must fail; and when such action is brought, it is incumbent upon the Plaintiff to shew this right of entry. The act of 1715 limits this right of entry to seven years, and unless a Plaintiff can shew a possession of himself or those Under whom he claims, within seven years, that right becomes barred. There is no substantial difference between our act and that of yames except as to the length of time ; and Lord Mansfield, in Taylor v. Horde, reported in 1 Burr. 60, says, the Plaintiff in ejectment must fail without shewing such possession or Accounting for -want of it, under some of the exceptions contained in the statute of yames. Whatever may be the effect of bringing an action so as to prevent a descent from barring an entry, according to the rules of the common law ; it is very clear, that under the act 1715, one action cannot be used so as to prevent the operation of the act against a subsequent one, unless the subsequent action be brought within one year; and as to the second suit, there is no saving whatever.

It is not therefore necessary to enquire, whether the suit' of the ancestor failed under such circumstances as admit of a new suit being benefited by it, or whether or not, that section of the act relates to real actions, as this suit was not brought within one year. Mr. Justice Bullet, in his law of Ni. Pri. pa. 102, lays it down as estab*309lished law, that the Plaintiff must show such possession, and also adds, that another suit within twenty years' will not be sufficient, and to this may be addecj the very res pectable opinion -of Mr. Williams, in his notes on Sawn» ⅛ , ders1 •: Reports. * wno seems partly to accord with doctrine, and Lord Holt, in the case of Ford v. Gray, reported in Salkeld, says, that an actual entry to avoid the act of limitations must be made, unless there be good reasons for not doing so.—As therefore a continual claim is nothing but an entry in law, and as a suit is but equal to a claim, according to this case, even if a suit ■were to be considered as a kind of entry, still it would not avail, unless there were special reasons for not making an actual entry. It seems never to have occurred to Mr, Justice Bidler, or Mr. Williams that by the bringing of the first suit, the Plaintiff became possessed in law ; and Mr. Williams, by way of caution, advises where the right of entry is nearly elapsed, that before the bringing the suit, the Plaintiff should make an actual entry, which, ip case of failure in the suit contemplated, will serve in another, though there the twenty years be expired, if the last suit shall, according to the statute of Anne, be brought within one year of the entry.

And this opinion obviously suggests another remark^ jn respect to tfie effect of the suit.r—If the bringing the ejectment is equal to a claim, and a claim equal to aq. entry, the bringing of this suit without any actual entry would have had the same effect upon the subsequent suit-As the whole of the proceedings of ejectment are ficti» tious, the confession by the Defendant of lease and entry only applies to a fictitious statement, and is therefore no evidence of such a lease and entry, but merely to try whether, when they are stated to have taken place, the lessor had power in law to make them.

The act therefore having commenced its operation ⅛ t|ie ljfe-time of the lessor pf the Plaintiff’s ancestor, will *310continue to run without being controlled by subsequent disabilities ; and the suit brought by the ancestor, having no influence upon the present action ; and as more than seven years have elapsed since the time, the action or right of entry accrued to the ancestor; both he and his heirs stand barred by the act from entry or claim.

Hall, Daniel & Ruffin, J. concurred.