Swist, -Ch. J.
Courts have gone great lengths in presuming grants, where it conduced to justice, and quieted men in their possessions.
Mere length of time less than what is prescribed by statute, and in eases where the statute operates, can never be a presumptive bar. Length of time, accompanied by circumstances, which render it probable a grant -was made, may be a presumptive bar. So length of time, unaccompanied by such circumstances, may be a bar where there is no statute of limitation, in analogy to statutes in similar cases. Where a statute limits a time, it is a peremptory bar, and may be pleaded; but where there is no statute, length of time is matter of presumptive evidence to be left to the jury, and may he rebutted by circumstances which go to disprove the probable existence of a grant. No presumption of a grant [32] could be made where it would be impossible ; as where the supposed grantor had no legal right or capacity to make the grant.
In this case, it is not necessary to presume any act to have *,ecn d°nc by an infant, or feme-covert, to quiet the long possession of the defendant, and those under whom he claims. From the circumstance that the land in question was not comprehended in the inventory of Benton’s estate, it is highly probable that he had released the equity of redemption in his lifetime, and the deed had been lost. If he did r:nt release it, then it is probable, as the estate was insolvent, it was disposed of in due course of law for the payment of the debts, and the evidence has been lost. This is coniirmed hv the circumstance, that the mortgagees gave deeds of warranty of the land, and the purchaser went, info immediate possess ion ; which would not probably have been done, if the title had not been quieted. To this is to be added the great length of time which has elapsed ; and it cannot he supposed, that the petitioners, some of whom were sui juris, would have, been so long silent, if it had been understood that they liad any right. Under these circumstances, there can he no doubt: the equity of redemption was extinguished ; and though there is no proof of a conveyance, yet we are warranted to presume it.
With respect to the other point, it may be remarked, it has been long recognised in this state, that a statute of limitation can never begin to run during the existence of a disability, though when it once begins, it will not be interrupted by an intervening disability. If a female should he an infant w hen the title accrued, ami should intermarry before she comes of age, she would he within the saving of the statute till she should become discovert; but if being of full age when the title accrued, she should intermarry within fifteen years, she would not be within the proviso of the statute ; so that the same person, in certain cases, could take advantage of two successive disabilities. This doctrine has been sanctioned by a single decision in this Court; (Eaton v. Sanford, 2 Day’s Ca. 523.) but, I apprehend, it is not warranted by a sound construction of the statute. The saving danse is expressly limited to disabilities existing at the time the title accrued. Nor is the proposition correct, that the statute never begins to run against a person under a disability. [33] suppose that the party claiming is an infant when the title accrues ; if fifteen y ears run duping his'infancy, he has but Jive years after he comes of full age to make his entry. This clearly shews, that the statute operates against him during the disability. Indeed, the statute always begins to run against a man the moment he is disseised, whether he is under a disability or not : all the difference is, that an additional tittic is allowed where a disability exists, after the removal of it. The correct role, sanctioned by all the authorities, is, that when the statute once begins to run, a supervenient disability will not stop it. Hence it follows, that no person can ever take the benefit of two successive disabilities : a construction strictly conformable to the letter and meaning of the statute. But in the construction heretofore given in this slate, a succession of disabilities can be united ; oh! claims may be preserved, till all evidence respecting them is obliterated ; and the beneficial objects of the statute may be defeated. It appears to me, that the case of Eaton v. Sanford is a departure from principle j that the construction given to the statute is not warranted by the fair import of it; and that it ought not to be considered as possessing the author] (y of a precedent.
I am of opinion, on both points, that the petition ought not lo be sustained.
Edmund, J.
Two questions are presented for the consideration of the court. One is, whether from lapse of time, and under all the circumstances attending this case, the court may and ought to presume a grant, in order to quiet the respondents in their possession ? I do not consider it necessary to del ermine this question, as the court are unanimous on the, other ; and that is sufficient to decide the case.
The other is, whether the proviso, or saving in the statute of limitations against the right of entry into lands, &c. tit. 07. c. 3, extends to supervenient disabilities, or to such only as exist at the time the right of entry accrues ?
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Swist, -Ch. J.
Courts have gone great lengths in presuming grants, where it conduced to justice, and quieted men in their possessions.
Mere length of time less than what is prescribed by statute, and in eases where the statute operates, can never be a presumptive bar. Length of time, accompanied by circumstances, which render it probable a grant -was made, may be a presumptive bar. So length of time, unaccompanied by such circumstances, may be a bar where there is no statute of limitation, in analogy to statutes in similar cases. Where a statute limits a time, it is a peremptory bar, and may be pleaded; but where there is no statute, length of time is matter of presumptive evidence to be left to the jury, and may he rebutted by circumstances which go to disprove the probable existence of a grant. No presumption of a grant [32] could be made where it would be impossible ; as where the supposed grantor had no legal right or capacity to make the grant.
In this case, it is not necessary to presume any act to have *,ecn d°nc by an infant, or feme-covert, to quiet the long possession of the defendant, and those under whom he claims. From the circumstance that the land in question was not comprehended in the inventory of Benton’s estate, it is highly probable that he had released the equity of redemption in his lifetime, and the deed had been lost. If he did r:nt release it, then it is probable, as the estate was insolvent, it was disposed of in due course of law for the payment of the debts, and the evidence has been lost. This is coniirmed hv the circumstance, that the mortgagees gave deeds of warranty of the land, and the purchaser went, info immediate possess ion ; which would not probably have been done, if the title had not been quieted. To this is to be added the great length of time which has elapsed ; and it cannot he supposed, that the petitioners, some of whom were sui juris, would have, been so long silent, if it had been understood that they liad any right. Under these circumstances, there can he no doubt: the equity of redemption was extinguished ; and though there is no proof of a conveyance, yet we are warranted to presume it.
With respect to the other point, it may be remarked, it has been long recognised in this state, that a statute of limitation can never begin to run during the existence of a disability, though when it once begins, it will not be interrupted by an intervening disability. If a female should he an infant w hen the title accrued, ami should intermarry before she comes of age, she would he within the saving of the statute till she should become discovert; but if being of full age when the title accrued, she should intermarry within fifteen years, she would not be within the proviso of the statute ; so that the same person, in certain cases, could take advantage of two successive disabilities. This doctrine has been sanctioned by a single decision in this Court; (Eaton v. Sanford, 2 Day’s Ca. 523.) but, I apprehend, it is not warranted by a sound construction of the statute. The saving danse is expressly limited to disabilities existing at the time the title accrued. Nor is the proposition correct, that the statute never begins to run against a person under a disability. [33] suppose that the party claiming is an infant when the title accrues ; if fifteen y ears run duping his'infancy, he has but Jive years after he comes of full age to make his entry. This clearly shews, that the statute operates against him during the disability. Indeed, the statute always begins to run against a man the moment he is disseised, whether he is under a disability or not : all the difference is, that an additional tittic is allowed where a disability exists, after the removal of it. The correct role, sanctioned by all the authorities, is, that when the statute once begins to run, a supervenient disability will not stop it. Hence it follows, that no person can ever take the benefit of two successive disabilities : a construction strictly conformable to the letter and meaning of the statute. But in the construction heretofore given in this slate, a succession of disabilities can be united ; oh! claims may be preserved, till all evidence respecting them is obliterated ; and the beneficial objects of the statute may be defeated. It appears to me, that the case of Eaton v. Sanford is a departure from principle j that the construction given to the statute is not warranted by the fair import of it; and that it ought not to be considered as possessing the author] (y of a precedent.
I am of opinion, on both points, that the petition ought not lo be sustained.
Edmund, J.
Two questions are presented for the consideration of the court. One is, whether from lapse of time, and under all the circumstances attending this case, the court may and ought to presume a grant, in order to quiet the respondents in their possession ? I do not consider it necessary to del ermine this question, as the court are unanimous on the, other ; and that is sufficient to decide the case.
The other is, whether the proviso, or saving in the statute of limitations against the right of entry into lands, &c. tit. 07. c. 3, extends to supervenient disabilities, or to such only as exist at the time the right of entry accrues ?
To decide this question, there appears to me no other difficulty than that which arises from the necessity to deny the propriety of a former decision, (Sanford v. Eaton, 2 Day’s Ca. 523.) — a necessity always to be regretted $ orto depart from what I considered, at the time the ease of Bv.sf; [34] and wife & al. v. Bradley, 4 Day’s Ca. 298. was argued, ami still consider, as the plain and obvious import of the statute. By the second section, it is enacted, that “ no per son or persons shall, at any time hereafter, make entry into any lands, tenements or hereditaments within this colony, but within fifteen years next after his or their right or title, which shall hereafter first descend or accrue to the same, Ac.” In this section of the act there is no saving clause for disabilities of any sort; nor in any other part of the statute is there any saving against its positive provisions, except what is to be found under the proviso which forms the fourth section. To this, then, we must look, to discover, not who ought to he, but who arc, the subjects of it, and how far their exemption extends. Examined with this view, it appears to me difficult to perceive how it can possibly be construed to apply or extend to any other than those, who, at the time of passing the act, had, or thereafter should have, “ a right or title of entry into any lands,” Ac. and who “ be” (that is, at the time) {< or shall be, at the time of the said right or title first descended, accrued, come or fallen, within the age of twenty-one yearsor shall, at the time of said right or title first descended, accrued, Ac. be under some one or more of the disabilities enumerated, and shall prosecute their claims within five years next after the disability or disabilities, which existed at the time the right or title-first descended, Ac. are removed. I say, “ disability or disabilities,” because a person may be under several of the disabilities specified, at the time the title accrues; and in such case, the person so situated may avail him or herself of either ; and it will always be a suificieut answer to an objector to such an election, to say, the disability on which 1 rely is pointed out by the proviso : it existed at the lime my right or tille accrued ; I have prosecuted my claim within the time allowed after its discontinuance, and come within both the letter and spirit of the law. But- where a single disability only exists at the time the right of entry accrues, and the five years after the discontinuance of llial disability have elapsed, the statute immediately attaches, and the party so neglecting to prosecute can never avail himself of any other or supervenient disability, because the statute recognizes no other than such as actually existed, or should exist. [35] at the time when the right of entry first commenced ; and every after disability may be said to want, and is, in fact, destitute of that essential qualification.
I should advise that judgment be given for the respondent.