McCay, Judge.
1. This action had been pending for several years before the adoption of the New Rules. The defendants had filed their plea, and, as the rule stood at the time, they were in a proper condition to defend. At the October Term, 1870, the case was called, and both sides announced ready. The [525]*525plaintiffs moved to dismiss the plea, as the defendants did not admit the possession. This the defendants, McNaught and Ormond, could not, with truth, do, as they were only in possession of the east half of the lot. "What were they to do ? The rule is imperative. They did the only thing in their power; they disclaimed title to the one-half they were not in possession of. This, as to them, abandoned that half to the plaintiff, and, for all sensible purposes, put them in position to admit their possession of the other half, and to claim their right to defend it. There can be no doubt that, thus far, there was no error. It is absurd to say that a plaintiff can so bring his suit as to force a defendant to admit himself in possession of land he is not in possession of before he can be permitted to defend that which he actually does hold and claim the ownership of. But it is said that, admitting this, it was now the right of the plaintiffs, on a suggestion of the death of the other defendants, to continue the case, that his representatives might be made parties. So far as the claim of the plaintiffs against the living defendants was concerned, this was wholly useless. They set up no claim to more than the east half. As to them,, the plaintiff may to-day take possession of the other half, and, so far as his rights to mesne profits of that half was concerned, the plaintiff could have his verdict against them for whatever he might prove they had received. The plaintiff knew of the death of the other defendant before he announced ready, at least it does not appear that he did not, and chose to go on because he had sued tiiem as joint trespassers. By this he elected to put the case in the hands of the living defendants. They chose to disclaim any right in the west half. Why should the plaintiff complain ? As the case stood, he went to trial, claiming the whole land of McNaught and Ormond. They, so far as they are concerned, yield to him the west half. Where is the harm ? How is the plaintiff hurt ? The real difficulty is, that he chose to go on, to insist upon it that McNaught and Ormond were withholding the whole [526]*526from him. For the purposes of the trial, then before the Court, he had practically discontinued his suit against Lee, the deceased. If he knew, when he went to trial, that Lee was dead, (and we must assume that he did, or his motion to continue would be put on the ground that the knowledge had just come to hand,) he elected to treat McUaught and Ormond as the sole tenants of the whole lot, and took the risk of having them disclaim title to the one-half. This would seem to be the legal result of his going on. We are not, however, disposed to hold him to this result, so far as the west half is concerned. It distinctly appears, from the record, that there was no trial as to this half, and it would be unfair to the plaintiffs to hold his case, as to. that half, concluded, so far as Lee is concerned.
2. We think there was no error in admitting the interrogatories of General Rethune. As evidence of the loss of the deeds from the drawer, from his grantee, and of the deed to Howard, and of the existence and genuineness of the latter two deeds, the evidence was clearly admissible. So far as Bethune’s evidence refers to the McCranie deed, (save of its loss,) there is more doubt; but, taking this evidence with the other evidence, we think it admissible. Here was a deed said to be made in 1826, the grantor and grantee both dead, the deed lost, the Court-house and records of DeKalb county burned. That a deed, purporting to be a deed from Mc-Cranie, existed and was in possession of General Beth une, is clear. What are the circumstances showing its genuineness? It was proven that soon after the land was drawn by Mc-Cranie, he commenced giving it in for taxes with his other lands; that he continued this until about the date of this deed, when, though he gave in other lands, he ceased to give in this, and that, though he disposed of other lands and property to his children, he made no disposition to them of this; that he had the grant in his possession • that it, in fact, got out of his possession, and came with this supposed deed to Bethune’s possession from the brother-in-law of McCranie. [527]*527Considering the time which has elapsed, we think these circumstances together are evidence going to show the deed genuine, and that it was proper to-submit them to the jury, and to charge upon them.
3. It cannot be concluded that, under the words of this Act, the statute stops, unless the letters are taken out in five years. This is expressly made the condition upon which this special privilege is granted, and, by the terms of the Act, an administrator must show that his letters were issued within five years after the death, before he comes within its provisvisions. But it is said that the evident intent of the Act is to stop the running of the Statute of Limitations five years, and that the equity of it is to count out the five years, no matter when the letters may be granted. We do not think so. The Statute of Limitations is a statute of repose, and is founded on a sound public policy. Exceptions to it ought not to be extended by the Courts. The honest resident on the land, who has, in good faith gone into possession, thinking his title was good, and who has continued, undisturbed, for seven years, in the notorious enjoyment of it, is entitled to be protected, unless the letter of the law be against him. Why should the administrator claim to have the law construed beyond its letter in his favor ? As to infants, lunatics, etc., upon whom a right of action falls, the Act of 1817 stops the running of the statute. The administrator cannot, therefore, claim any equity for their sake, since they do not need his aid.
The adult heirs have no right, in equity, to shield themselves behind the administrator. No other persons are interested but creditors; they are sui juris, and have a right to administer immediately. In our judgment, the Act of 1856, stopping the statute for five years, in their favor, is as much as they have a right to ask. If they fail to take out letters in that time they do not come before the Court with that vigilance that entitles them to its power. It is a strong exercise of legislative indulgence to postpone, as against an [528]*528innocent claimant, the period when he can feel that time will protect him. We are not disposed to go farther than the plain words of the Act indicate.
4. We concur with the Court below, that under our law the defendant may, even at law, reply to the defense, by which his prescriptive title is met in this case, that the heirs at law were all of age at the death of the intestate, and that he left no debts. That in equity, this would be a good reply is the settled rule. Murdock vs. Mitchell, 30 Georgia, 75. Why should it not be true, also, at law? It is admitted, that under our Code (section 3027) a defendant may set up, at law, any defense that would be good in equity, and this is clearly the rule in this State.
But it is said that the equitable defense set up at law must be distinctly set forth in the pleadings. This, as a general rule, is true.
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McCay, Judge.
1. This action had been pending for several years before the adoption of the New Rules. The defendants had filed their plea, and, as the rule stood at the time, they were in a proper condition to defend. At the October Term, 1870, the case was called, and both sides announced ready. The [525]*525plaintiffs moved to dismiss the plea, as the defendants did not admit the possession. This the defendants, McNaught and Ormond, could not, with truth, do, as they were only in possession of the east half of the lot. "What were they to do ? The rule is imperative. They did the only thing in their power; they disclaimed title to the one-half they were not in possession of. This, as to them, abandoned that half to the plaintiff, and, for all sensible purposes, put them in position to admit their possession of the other half, and to claim their right to defend it. There can be no doubt that, thus far, there was no error. It is absurd to say that a plaintiff can so bring his suit as to force a defendant to admit himself in possession of land he is not in possession of before he can be permitted to defend that which he actually does hold and claim the ownership of. But it is said that, admitting this, it was now the right of the plaintiffs, on a suggestion of the death of the other defendants, to continue the case, that his representatives might be made parties. So far as the claim of the plaintiffs against the living defendants was concerned, this was wholly useless. They set up no claim to more than the east half. As to them,, the plaintiff may to-day take possession of the other half, and, so far as his rights to mesne profits of that half was concerned, the plaintiff could have his verdict against them for whatever he might prove they had received. The plaintiff knew of the death of the other defendant before he announced ready, at least it does not appear that he did not, and chose to go on because he had sued tiiem as joint trespassers. By this he elected to put the case in the hands of the living defendants. They chose to disclaim any right in the west half. Why should the plaintiff complain ? As the case stood, he went to trial, claiming the whole land of McNaught and Ormond. They, so far as they are concerned, yield to him the west half. Where is the harm ? How is the plaintiff hurt ? The real difficulty is, that he chose to go on, to insist upon it that McNaught and Ormond were withholding the whole [526]*526from him. For the purposes of the trial, then before the Court, he had practically discontinued his suit against Lee, the deceased. If he knew, when he went to trial, that Lee was dead, (and we must assume that he did, or his motion to continue would be put on the ground that the knowledge had just come to hand,) he elected to treat McUaught and Ormond as the sole tenants of the whole lot, and took the risk of having them disclaim title to the one-half. This would seem to be the legal result of his going on. We are not, however, disposed to hold him to this result, so far as the west half is concerned. It distinctly appears, from the record, that there was no trial as to this half, and it would be unfair to the plaintiffs to hold his case, as to. that half, concluded, so far as Lee is concerned.
2. We think there was no error in admitting the interrogatories of General Rethune. As evidence of the loss of the deeds from the drawer, from his grantee, and of the deed to Howard, and of the existence and genuineness of the latter two deeds, the evidence was clearly admissible. So far as Bethune’s evidence refers to the McCranie deed, (save of its loss,) there is more doubt; but, taking this evidence with the other evidence, we think it admissible. Here was a deed said to be made in 1826, the grantor and grantee both dead, the deed lost, the Court-house and records of DeKalb county burned. That a deed, purporting to be a deed from Mc-Cranie, existed and was in possession of General Beth une, is clear. What are the circumstances showing its genuineness? It was proven that soon after the land was drawn by Mc-Cranie, he commenced giving it in for taxes with his other lands; that he continued this until about the date of this deed, when, though he gave in other lands, he ceased to give in this, and that, though he disposed of other lands and property to his children, he made no disposition to them of this; that he had the grant in his possession • that it, in fact, got out of his possession, and came with this supposed deed to Bethune’s possession from the brother-in-law of McCranie. [527]*527Considering the time which has elapsed, we think these circumstances together are evidence going to show the deed genuine, and that it was proper to-submit them to the jury, and to charge upon them.
3. It cannot be concluded that, under the words of this Act, the statute stops, unless the letters are taken out in five years. This is expressly made the condition upon which this special privilege is granted, and, by the terms of the Act, an administrator must show that his letters were issued within five years after the death, before he comes within its provisvisions. But it is said that the evident intent of the Act is to stop the running of the Statute of Limitations five years, and that the equity of it is to count out the five years, no matter when the letters may be granted. We do not think so. The Statute of Limitations is a statute of repose, and is founded on a sound public policy. Exceptions to it ought not to be extended by the Courts. The honest resident on the land, who has, in good faith gone into possession, thinking his title was good, and who has continued, undisturbed, for seven years, in the notorious enjoyment of it, is entitled to be protected, unless the letter of the law be against him. Why should the administrator claim to have the law construed beyond its letter in his favor ? As to infants, lunatics, etc., upon whom a right of action falls, the Act of 1817 stops the running of the statute. The administrator cannot, therefore, claim any equity for their sake, since they do not need his aid.
The adult heirs have no right, in equity, to shield themselves behind the administrator. No other persons are interested but creditors; they are sui juris, and have a right to administer immediately. In our judgment, the Act of 1856, stopping the statute for five years, in their favor, is as much as they have a right to ask. If they fail to take out letters in that time they do not come before the Court with that vigilance that entitles them to its power. It is a strong exercise of legislative indulgence to postpone, as against an [528]*528innocent claimant, the period when he can feel that time will protect him. We are not disposed to go farther than the plain words of the Act indicate.
4. We concur with the Court below, that under our law the defendant may, even at law, reply to the defense, by which his prescriptive title is met in this case, that the heirs at law were all of age at the death of the intestate, and that he left no debts. That in equity, this would be a good reply is the settled rule. Murdock vs. Mitchell, 30 Georgia, 75. Why should it not be true, also, at law? It is admitted, that under our Code (section 3027) a defendant may set up, at law, any defense that would be good in equity, and this is clearly the rule in this State.
But it is said that the equitable defense set up at law must be distinctly set forth in the pleadings. This, as a general rule, is true. Our statute, Code, section 3400, requires that the defendant shall distinctly set forth his defense.
But what is this case? It is an action of ejectment. Does the plaintiff distinctly set forth his cause of action as the same law requires ? Indeed, it is only because, by long usage, this action has been permitted by the Courts as an exception to the rule, that the plaintiff’s writ is not liable to be dismissed for a failure to do this. The whole trial is upon a fiction. This, then, is not a fact in dispute between the parties that is set forth in the plaintiff’s writ.
The defendant, before he is allowed to be heard, is compelled to come into Court, and admit every allegation in the writ. It would, as we think, be meeting out justice very unequally to permit the plaintiff to prove his case under the declaration, and deny to the defendant a right to set up his defense because he does not plainly and distinctly set it forth. His title in this case, as he claims, is seven years possession under paper claim of right. This, in Georgia, is a title. To this, the plaintiff replies: “ The death of his intestate stops the running of the prescription.” He does this without the setting forth of the matter in his declaration, or [529]*529in any way. Would it not be clinging very closely into the bark to say, “ Oh, yes ! the defendant may do this under our law; he may set up any defense at law that® he may, in equity, but he must plead it?” And this, in an action of the ejectment, and that, too, when the defense only comes in by way of a rejoinder, to the plaintiff’s replication ? If one may be, without a setting forth, we think it is but fair that the other shall be.1
Judgment affirmed.