standing the second disability. [3] It was once, indeed, endeavoured to distinguish between cases of voluntary and involuntary disability in this respect, and to maintain that an involuntary disability, as insanity, occurring after the statute had begun to run, would suspend its progress,[4]

An estate devised to executors, or such of them as shall qualify, is a contingent executory devise, and does not vest until that event occurs; until then, the title descends to the heirs. And where, in such case, after the testator's death, but before the qualification of the executors, and whilst his heirs were infants, an entry was made on part of their land under a junior patent; it was Held, that the Statute of Limitations did not commence running, until the qualification of the executors, or one of them. May's Heirs vs. Hill, 5 Litt.. Rep. 308.

"With regard to executory devises, whether certain or contingent, it "is one of their properties that they cannot be aliened or barred by any "mode of conveyance, whether by recovery, fine, or other act. There"fore executory devises preserve the estate from injuries, against the par"ticular estate, and thus create a kind of perpetuity, on which courts have "placed sundry restrictions. May's Heirs vs. Hill, 5 Litt. Rep. 312, 313. (Per MILLS, J. delivering the Opinion of the Court.)

[3] "It is an established rule, that when the Statute begins to run, it con"tinues to run without interruption, from the death of the claimant." Beauchamp, Admr. &c. vs. Mudd, 2 Bibb's Rep. 538. (Per BOYLE, Ch. J. delivering the Opinion of the Court.) & VIDE n [2] SUPRA.

But under the Statute of Limitations of Kentucky, the saving whereof is in favour of those who were or shall be infants, &c. "at the time when the said right or title accrued or coming to them;" It was Held, That if the Statute begins to run against the ancestor, but by his death the land descends to his heirs, who are infants, the Statute does not run on, but the infants shall have the time allowed by the Statute after arriving at full age, to bring their action. Machir, &c. vs. May, &c. 4 Bibb's Rep. 44. & Vide Floyd's Heirs vs. Johnson & Al., 2 Litt. Rep. 114. May's Heirs vs. Bennet, 4 Litt. Rep. 314. M'Intire's Heirs vs. Funk's Heirs, 5 Litt. Rep.

35.

The infancy of one tenant in common will not prevent the Statute of Limitations from running against a co-tenant. Thomas vs. Machir, &c. 4 Bibb's Rep. 412.

A party claiming the benefit of the proviso in the Statute of Limitations, can only avail himself of a disability existing when his right of action first accrued. Jackson ex dem. Roosevelt & Al. vs. Wheat. 18 Johns. Rep. 40. Kendall vs. Slaughter, 1 Marsh. Rep. (Ky.) 377.

[4] In the case of Crozier vs. Gano & Ux. (1 Bibb's Rep. 260,) TrimBLE, J. delivering the Opinion of the Court, said, "The evident design of "the replication is to shew that the plaintiff, Keziah, from the time her 16 cause of action first accrued, has at all times, (until within five years next "before the commencement of the suit,) laboured under the disabilities of "either infancy, coverture, or absence from the country, so as to bring her "within the savings of the Statute of Limitations. If the replication had

but the argument was overruled, upon the principle that a different con

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"really shewn this, it would have been good; for although one of them, as infancy, for example, bad been removed, yet if another of them oc"curred, as marriage, before the removal of that of infancy, and so on in "succession, so that all were not removed at any one time, whereby the "Statute could attach and begin to run, it would have been a sufficient answer to the plea: [of the Statute of Limitations,] this the replication "has not done." & Vide Eaton vs Sanford. 2 Day's Rep. 523.

In the case of Cotterell vs. Dutton, (4 Taunt. Rcp. 830,) CHAMBRE, J. said, "The ten years do not run at all while there is a continuance of disa"bilities, but they run without intermission from the time that the disa"bilities first cease."

But in the case of Bunce & Al. vs. Wolcott, (2 Conn. Rep. 27,) it was Held, That the saving of the Statute of Limitations regarding the right of entry into lands, (Tit. 97, c. 3.) applies only to such disability as existed at the time the right of entry accrued, and not to any supervenient disability. & Vide Thompson & Al. vs. Smith, 7 Serg. & R. Rep. 209.

"It is equally well settled that cumulative disabilities cannot be allow"ed." Jackson ex dem. Swartwout & Ux. vs. Johnson, 5 Cow. Rep. 101. (Per SAVAGE, Ch. J.) & Vide Opinions of SUTHERLAND, J. & WOODWORTH, J. to the same Point, pages 95 & 105, (same Case.)

If a non-resident comes into the state temporarily, and returns to his dwelling without the state, the Statute of Limitations begins to run against him. Doe ex dem. Smith vs. Harrow, &c. 3 Bibb's Rep. 446. Robertson, &c. vs. Smith's Heirs, Litt. Select Cas. 296. May's Heirs vs. Slaughter, 3 Marsh. Rep. (Ky.) 505. 507. In this last cited case the Court said, (BOYLE, Ch. J. delivering the Opinion ;)" We have no doubt, assuming "the facts as true, that the Statute commenced running against John May in his life time. At the separation of this State from Virginia, we made "the Statute of that State ours, by adoption, and in its turns [terms] it then "applied to the limits of this state, which were the former limits of the "district, and its expressions were retrospective, as to all previous as well "as subsequent entries upon land, so that by the separation of the two "States, the effect of the Statute did not cease. John May having been "in the limits of the district, after the adverse entry and possession of the "appellee, the Statute attached and took effect against him, altho' his residence was not within the district, as was decided by this Court in the case of Smith vs. Hanon. [Harrow,] 3 Bibb, 440." [446.]

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Coparceners whose right of entry is barred by the Statute of Limitations, cannot recover in Ejectment by joining with them one whose right is saved; each, or any number being capable of vindicating his or their own right without joining the others. Sanford & Ux. & Al. vs. Button, 4 Day's Rep.

310.

An estate descending to a plurality of persons, under our [Kentucky] Act of Descents, is a joint estate, so far that in an Ejectment brought by parceners, if any one of them is out of the saving in the Act of Limitations, all will be. Robertson, &c. vs. Smith's Heirs, Litt. Select. Cas. 296, 297.

Where the right of one tenant in common is protected by her coverture, the right of the other, who is under no disability, is not thereby saved,

struction had always been given to all the statutes of limitations, and that such nice distinctions would be productive of mischief.(g)

Doolittle & Ux. vs. Blakesley, 4 Day's Rep. 265. Bryan & Al. vs. Hinman, 5 Day's Rep. 211. M'Intire's Heirs vs. Funk's Heirs, 5 Litt. Rep. 34, 35.

If one of the persons against whom a decree is given, be an infant, his infancy will prevent the Statute of Limitations from barring those who must necessarily join with such infant in a Writ of Error to reverse such decree. Kennedy's Heirs vs. Duncan, &c. 1 Hardin's Rep. 365. & Vide May's Heirs vs. Bennett, 4 Litt. Rep. 314.

In the case of joint rights, all the complainants must labour under some legal disability, provided for by the Statute, to prevent the acts operating as a bar. Smith, &c. vs. Carney & Al., 1 Litt Rep 297.

In a joint estate to several persons, if the right of entry is tolled as to some, all are barred; but it is otherwise if it be "an estate in severalty, or in common." Dickey vs. Armstrong's Heirs, 1 Marsh. Rep. (Ky.) 39, 40. Robertson, &c. vs. Smith's Heirs, Litt. Select. Cas. 296. Robert's Heirs vs. Ridgeway, Ibid. 394. & Vide Turner & Al. Ex'ors. vs. Debell Ex'or. 2 Marsh. Rep. (Ky.) 384. Simpson & Al. vs. Shannon's Heirs, 3 Marsh Rep. (Ky.) 462. Marsteller & Al. vs. M'Clean, 7 Cranch. Rep.

156.

In the case of Doe ex dem. Langdon & Al. vs. Rowlston, (2 Taunt. Rep. 446.) MANSFIELD, Ch. J. delivering the Opinion of the Court, said, “In "this case were two demises, and a verdict passed for the plaintiff on the "second demise by Elizabeth Langdon, the fact being, that the estate de"scended to Elizabeth Langdon, a Feme Covert, and Mary Peart, in par cenary, and that 20 years elapsed without Mary Peart's entering. And "the only question was, whether the lessor of the plaintiff was not entitled "to judgment on the first Count, on the idea that as Elizabeth Langdon was under a disability at the time of the descent cast, that circumstance "was to operate in favour of the other coparcener. Upon the hearing of "the argument, we were, and are now, of opinion, that the entry of Eli"zabeth Langdon cannot give a right of entry to Barrett, [he was the son " and heir of Mary Peart, then deceased,] whose right was before barred by the Statute of Limitations; but that the judgment must be for the "lessor of the plaintiff for the moiety only."

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Under the act of Kentucky, of 1797, taken in connexion with preceding acts, declaring that entries for land shall become void. if not surveyed before the first day of October, 1798, with a proviso allowing to infants and Femes Covert, three years after their several disabilities are removed to complete surveys on their entries; it was Held, that if any one or more of the joint owners be under the disability of infancy or coverture, it brings the entry within the savings of the proviso as to all the other owners.-Distinction between this Statute and a Statute of Limitations of personal actions. Shipp. & Al. vs. Miller's Heirs, 2 Wheat. Rep. 317. Kennedy & Al. vs. Bruice, 2 Bibb's Rep. 371.

And where B., who owned a certificate of such entry, assigned his claim to H., an adult, and B. died within the time for surveying entries; Held, that neither B. nor his heirs being responsible for the title, after the assing

It was said, by Lord Chancellor Hardwicke, that if a man, both of nonsane memory and out of the kingdom, come into the kingdom, and then go out of the kingdom, his non-sane memory continuing, his privilege, as to being out of *the kingdom, is gone; and his privilege, as to non-sane memory, will begin from the time he returns to his senses.(h)

[ *60]

When the ancestor, to whom the right first accrues, dies under a disability, which suspends the operation of the statute, his heir must make his entry within ten years next after his ancestor's death, provided more than twenty years have elapsed from the time of the commencement of the ancestor's title, to the time of the expiration of the ten years. (i) [1]

(h) Sturt v. Mellish, 2 Atk. 610, 614.

(i) Doe d. George v. Jesson. 6 East. 80.

ment, to H., the infancy of B.'s heirs did not save the entry from forfeiture for not being surveyed in time. Hart's Heirs, &c. vs. Benton s Heirs, &c. 3 Bibb's Rep. 420.

The 5th Section of the Limitation Act of 26th March, 1785, [Pennsylvania] is binding on infants where there has been no possession of lands improved for seven years next before action brought. Lessee of Mobley & Al. vs. Ocker, 3 Yeates' Rep. 200.

Neither the act of 1800 [North Carolina] repealing the laws granting es cheated lands to the University, nor bringing a suit by the escheator under the act of 1801, suspends the Statute of Limitations as to the trustees whose right was sought to be divested by those acts. Den ex dem. Trustees of the University vs. Campbell, 1 Murph. Rep. 185.

[1] There is no saving in the Statute of Limitations, for any disability in the heir supervenient to the disability of the person to whom the right of entry first accrued. Griswold vs. Butler & Ux. 3 Conn. Rep. 227. (Per BRISTOL, CHAPMAN & BRAINARD, Js. Contra, HOSMER, Ch. J. & PETERS, J.)

Where an adverse possession has commenced in the lifetime of the ancestor, the operation of the Statute of Limitations is not prevented by the title descending to a person under legal disability, as a Feme Covert, &c. Jackson ex dem. Livingston & Al. vs. Robins, 15 Johns. Rep. 169.

Where an adverse possession begins to run in the lifetime of the ancestor, and the land descends to an infant heir, the latter is not protected by his disability. Jackson ex dem. Colden & Al. vs. Moore, 13 Johns. Rep. 513.

"We have not forgotten that it has been decided by this Court. that un"der our Statute, if a right of action accrues to one labouring under no dis"ability, and by his death the right descends upon his heir, who does labour "under some disability, the right of the latter will be saved until ten years "after such disability is removed; but we have never decided that one dis"ability can be added to another." &c. When, therefore, a right of ac"tion has once accrued, or come to a person labouring under a disability, "and that disability is removed, or the person so disabled has died, it is

It was once, indeed, contended that the meaning of this second section of the statute was to allow every person at least twenty years after their title accrued, if there were a continuing disability from the death of the ancestor last seised, and ten years more to the heir of a person dying under a disability, which ten years were in addition to the twenty years allowed by the first clause. But it was justly observed by the court, that if this construction obtained, there was no calculating how far the statute might be carried by parents and children dying under age, or continuing under other disabilities in succession; that the word death, in the second clause meant and referred to the death of the person to whom the right first accrued, and was probably introduced in order to obviate the difficulty which had arisen in the case of Stowell v. Lord Zouch,(j) upon the construction of the statute of fines, from the omission of that word; and, that the statute meant that the heir of every

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(j) Plow. 366.

"obvious, that the Statute has provided for no other or successive disability; and to permit such disability to cumulate and save the right, would be adding to the Statute, and giving to it an operation contrary to its im"port." Floyd's Heirs vs. Johnson & Al. 2 Litt. Rep. 114. (Per CURIAM.)

"There is no doubt, that a party has, in every event, twenty years to 16 make an entry; and if under disability when the right or title of entry "first accrued, then such person may, notwithstanding twenty years have "expired, bring an action or make an entry, within ten years after the dis"ability is removed." Jackson ex dem. Corson & Al. vs. Cairns & Al. 20 Johns. Rep. 306. (Per SPENCER, Ch. J. delivering the Opinion of the Court.) & Vide Jackson ex dem. Swartwout & Ux. vs. Johnson, 5 Cow. Rep. 94, 101, 105. Demarest & Ux. vs. Wynkoop & Al. 3 Johns. Ch. Rep. 137. "It is perfectly well settled, that if several disabilities exist when the "right of action accrues, the Statute does not begin to run, till the party has "survived them all. (3 Johns. Ch. Rep. 138. 1 Plowd. 375.)" Jackson ex dem. Swartwout & Ux. vs. Johnson, 5 Cow. Rep. 101. (Per SAVAGE, Ch. J.) & Vide Opinion of WOODWORTH, J. page 105, & Opin. ion of SUTHERLAND, J. page 94, (same Point.)

"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 sufficient answer to an object"or to such an election, to say, the disability on which I rely is pointed "out by the proviso; it existed at the time my right or title accrued ; I "have prosecuted my claim within the time allowed after its discontinuance, "and come within both the letter and spirit of the law." Bunce & Al. vs. Wolcott, 2 Conn. Rep. 34, (Per EDMOND, J.)

But in the case of Pender vs. Jones, (2 Hayw. Rep. 294.) TAYLOR, J. said, "I am of opinion, that if seven years be completed at a period of time, occurring after arrival at full age, when part of the seven years elapsed du"ring infancy, that the party has three years from his arrival to age to make "his entry or claim, and no more."