1822.

Ricard

V.

Williams.

construction of the statute cannot be maintained. The title against which the statute runs, is a present right of entry; and it is admitted, that when once it so begins to run, no devolution of the same title, and no supervening disability, will stop its operation. When, therefore, it speaks of a right or title first accrued, it means a new right or title first accruing to the party, and not the transfer of an old title. Against titles, in esse, at the time of the adverse possession, the statute was intended to run; but titles which should afterwards come in esse, were not within the provision of the statute, because they could not be enforced within the period, and it would be unjust to bar future rights in respect to which there could, by no possibility, be an imputation of laches. And such has been the uniform construction of all the statutes which contain a clause of this nature. Stanford's case, cited at the bar, and referred to in Cro. Jac. 61., is directly in point; and it would be easy to multiply instances under the statute of limitations, and the statute of fines, to the same effect." If, indeed, the construction were otherwise, it would not help the present case, for the right of entry of the purchaser did not accrue until after the conveyance to him, and if he should then be deemed in under the estate of the intestate, and in privity of title, it would be a new right growing out of the exercise of a power conferred by law, and no more barred than a right of entry upon an extent after a fine le

a Bac. Abr. Limitations, B. Bac. Abr. Fines and Recoveries, F. Comyn's Dig. Fine, K. 2.

vied, and five years past, where the judgment was obtained before the fine."

But we do think it is a case clearly within the same equity as those which are governed by the statute of limitations; and that by analogy to the cases where a limitation has been applied to other rights and equities not within the statute, the reasonable time within which the power should be exercised, ought to be limited to the same period which regulates rights of entry. It would be strange, indeed, that when the estate of the heirs in the land, which is but a continuation of the estate of the intestate, is extinguished by the statute, the estate should still be considered as a subsisting estate of the intestate himself. That the administrator should possess a power over the property which the intestate could not possess if living; and that a lien created by operation of law should have a more permanent duration of efficacy, than if created by the express act of the party. The convenience of mankind, the public policy of protecting innocent purchasers, and the repose of titles honestly acquired, require some limitation upon powers of this nature, and we know of none more just and equitable than this, that when the right of entry to the land is gone, or the estate is gone by an adverse possession from those who held as heirs or devisees, the whole interest in the land, the power of the administrator to make sale of the land for payment of debts, is gone also. In this opinion we do but follow the doctrine which has been distinctly in

a Bac. Abr. Fines, &c. F. cites 1 Mod. 217.

1822.

Ricard

V.

Williams.

1822.

Ricard

V.

Williams.

One heir may, by disseisin of

timated both in the Massachusetts and Connecticut Courts."

The remaining consideration under this head is, whether the possession of Joseph Dudley can be considered as an adverse possession so as to toll the right of entry of the heirs, and, consequently, extinguish, by the lapse of time, their right of action for the land, as well as extinguish by analogy of principle the power of the administrator to sell the land. It is said, that the entry of Joseph into the premises is consistent with the potential right of the creditors; that he had a right to enter as a co-heir of his father, and if he entered as co-heir, his possession was not adverse, but was a possession for the other heirs and creditors, and he could not afterwards hold adversely, or change the nature of his possession, for the creditors might always elect to consider him their trustee. There is no doubt, that in general, the entry of one heir will enure to the benefit of all, and that if the entry is made as heir, and without claim of an exclusive title, it will be deemed an entry not adverse to, but in consonance with, the rights of the other heirs.

But it is as his co-heirs, ac- clear, that one heir may disseise his co-heirs, and

quire an exclu

upon which the

both against his

sive possession, hold an adverse possession against them, as well as statute will run, a stranger. And, notwithstanding an entry as heir, the party may, afterwards, by disseisin of his coheirs, acquire an exclusive possession upon which the

co heirs, and a

gainst credit

ors.

b Gore v. Brazer, 3 Mass. Rep. 523. 542. Wyman v. Brigden, 4 Mass. Rep. 150. 155. Sumner v. Childs, 2 Conn. Rep. 607.

statute will run. An ouster, or disseisin, is not, indeed, to be presumed from the mere fact of sole possession; but it may be proved by such possession, accompanied with a notorious claim of an exclusive right. And if such exclusive possession will run against the heirs, it will, by parity of reason, run against the creditors. For the heirs, qua heirs, are in no accurate sense in the estate as trustees of the creditors. They hold in their own right by descent from their ancestor, and take the profits to their own use during their possession; and the most that can be said is, that they hold consistently with the right of the creditors. The creditors, in short, have but a lien on the land which may be enforced through the instrumentality of the administrator acting under the order of the Court of Probates.

But in order to apply the argument itself, it is necessary to prove that the ancestor had an estate of inheritance, and that the party entered as heir. Now, in the case at bar, all the circumstances point the other way. There is not, as has been already intimated, any proof, that William Dudley died seised of an inheritance in the land; and there is direct proof that he asserted the inheritance to be in his son Joseph; and the entry of the guardian of Joseph as well as his own entry, after his arrival of age, was under an exclusive claim to the whole, not by descent, but by title distinct or paramount. There is certainly no incapacity in an heir to claim an estate by title distinct or paramount to that of his ancestor; and if his possession is exclusive under such claim, and he holds all other persons out until the statute period

1822.

Ricard

V.

Williams

1822.

Bouldin

V.

Massie's
Heirs.

has run, he is entitled to the full benefit and protection of the bar. It appears to us, therefore, that the jury ought to have been instructed, that if they were satisfied, that Joseph's possession was adverse to that of the other heirs, and under a claim of title distinct from, or paramount to that of his father, during his 25 years of exclusive possession, the entry of the purchaser, under the administrator's sale, was not congeable, and that the power of the creditor over the estate was extinguished. There was therefore error in the opinion of the Court to the jury, that as against the creditors of William Dudley, neither Joseph nor the tenant had gained any title to the land in controversy by possession.

For these reasons the judgment of the Circuit Court must be reversed, and the cause remanded, with directions to the Court to order a venire facias de novo.

[LOCAL LAW.]

BOULDIN and Wife v. MASSIE'S Heirs and Others.

The patent issued on a military warrant under the law of Virginia, is prima facie evidence that every prerequisite of the law was complied with.

The loss of a paper must be established before its contents can be proved: but where the patent issues upon an assignment of the warrant, and the legal title is thus consummated, the assignment itself being ue