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plaintiff had not the means to bring an action, does not create a bar to

"In Campbell v. Long, 20 Iowa, 382, the questions were as to the extension of time granted to minors, and whether ignorance of a right would prevent the operation of the statute. The court says that, but for the exception in the statute, it would run against minors and adults alike, and courts are not at liberty to ingraft upon the statutes exceptions which the legislature did not deem necessary.' 'No fraud is charged upon defendants.' It was simply a question whether ignorance of a right would prevent the running of the statute.

"In Shorick v. Bruce, 21 Iowa, 307, the court says: "The thought that the statute would not run because Wilson, the ward, was a person of unsound mind or incapacitated to sue, finds no support either in the statute or in the rules of the common law.'

"In Relf v. Eberly, 23 Iowa, 469, the question was whether plaintiff's case, as made by his petition, was prior to the statute, and within its meaning, solely cognizable in a court of chancery. Speak ing with reference to this question, the court says 'Our opinion, therefore, is that in cases of fraud, when the plaintiff's remedy is concurrent, - that is, when he could have the same relief either at law or in equity, the action must be commenced within five years after the perpetration of such fraud, and that he could not sue within that time after the discovery.' The question under consideration was not noticed in that case, and the same is true of Gebhard v. Sattler, 40 Iowa, 152.

"In Miller v. Lesser, 71 Iowa, 147, the question was whether the fact that the defendant changed his name, and that his place of residence was unknown to plaintiff, would prevent the running of the statute. The right of the courts to apply exceptions recognized at common law, other than those named in the statute, was not directly in question in either of these cases; and neither of the exceptions sought to be applied are such as were recognized at common law.

"Boomer Dist. Twp. v. French finds strong support in the authorities cited in the opinion. Reference to Sherwood v.

Sutton, 5 Mason, 143, wherein JUDGE STORY reviews many of the English and American cases, and to the cases cited by appellant, shows a diversity of rulings on this question by the courts of different States. It is true that some of the cases were under statutes that did not contain an exception as to actions for relief on the grounds of fraud, but the question was whether, in the absence of such an exception in the statute, the courts might apply it, just as in Boomer Dist. Twp. v. French the question was whether the court might apply the common-law exception announced, although not expressed, in the statute. If the question was before us for the first time, we might hesitate to declare the rule announced in Boomer Dist. Twp. v. French; but that case, sanctioned by a long line of respectable authorities, has stood unquestioned as the law of the State for many years, with several sessions of the legislature intervening, and has been cited, and more or less directly followed and approved, in Humphreys v. Mattoon, 43 Iowa, 556; Findley v. Stewart, 46 Iowa, 655; Brunson v. Ballou, 70 Iowa, 34; Bradford v. McCormick, 71 Iowa, 129; Wilder v. Secor, 72 Iowa, 161; Shreves v. Leonard, 56 Iowa, 74.

"We think there is no sufficient reason for now reversing the conclusion announced in Boomer Dist. Twp. v. French, supra.

"It only remains to determine whether the plaintiffs' petitions allege such fraud, or actual fraudulent concealment, by the defendant, as prevented them from obtaining knowledge of their causes of action until within five years next preceding the commencement of these actions. It is alleged that plaintiffs were induced to and did pay the rates charged, upon representations that they were the usual rates, and the same that were being charged to all others for the same service, and upon the promise that if any rebate was granted to any one a like amount would be granted to plaintiffs; that a less rate was being charged to the shippers named and others, which fact was fraudulently concealed from plaintiffs; that the representations

the legal remedy of the creditor. Nor will the bankruptcy of a creditor excuse delay in bringing an action beyond the statutory period." In Louisiana, however, when an insolvent has surrendered his property, prescription is suspended as to his creditors; but this is held not to apply to successions, whether solvent or insolvent. So, too, in that State it is held that the rescription of a judgment interrupts prescription against the hypothecary action on the judgment. In North Carolina, it has been held that, where a note is deposited in the hands of a master by order of a court of equity, the acts of limitation are thereby suspended. But, without stopping to single out instances in which courts have created exceptions where none existed in the statute, I think it may be safely said that the courts have no authority to make any exceptions in favor of the party, to protect him from the consequences of the statute, unless they come clearly within the letter of the saving clauses therein contained, and that the exercise of any such authority by the courts is a usurpation of legislative powers by it which is wholly unwarranted, and which courts should never resort to. By making the exceptions which exist in the statute the legislature has exercised its prerogative power, and the fact that no others were made clearly indicates that it intended that no others should exist, and the courts have no power to add any, however much the ends of justice in a particular case may demand it."

SEC. 253. Disability of Defendants.

It will be perceived that there is not in any of the statutes any saving in favor of the plaintiff on

were false, and known to defendant's officers and agents making them to be so, and were made to prevent plaintiffs from acquiring knowledge of the fact that they were and had been charged, and had paid, unreasonable rates. Our conclusions are that the rule laid down in Boomer Dist. Twp. v. French should be sustained, and that the allegations in the courts demurred to bring them within that rule, and that there was no error in overruling the apellant's demurrer."

1 Mason v. Crosby, Dav. (U. S. D. C.) 303. But in this case the pecuniary embarrassments of the plaintiff were held sufficient in equity to excuse delay not beyond the period of legal limitation in bringing his bill, to relieve his claim from the imputation of staleness, and especially where his embarrassments were occasioned by the defendant.

2 Harwell v. Steel, 17 Ala. 372.

5 Kendall v. United States, 107 U. S. 123; The Sam Slick, 2 Curt. (U. S.) 480; Leffingwell v. Warren, 2 Black (U. S.), 599; United States v. Muhlenbunk, 1 Woods (U. S. C. C.), 569; Fisher v. Harnden, 1 Paine (U. S. C. C.), 55; Amy v. Watertown, 130 U. S. 320. There can be no exception unless expressly named in the statute, Bank v. Dalton, 9 How. (U. S. 522; Duplex v. De Roven, 2 Vern. 540; McIver v. Ragan, 2 Wheat. (U. S.) 25; Hall v. Weyborn, 8 Salk. 420; Beckford v. Wade, 17 Ves. 87, and the rule is the same although it is claimed that the party setting up the statute has been guilty of fraud. Bucklin v. Ford, 5 Barb. (N. Y.) 393; Humbert v. Trinity Church, 24 Wend. (N. Y.) 587; Leonard v. Pitney, 5 Wend. (N. Y.) 30; Conner v. Goodman, 104 Ill. 365; United States v. Maillard, 4 Ben. (U. S. D. C.) 459; Gaines v. Miller, 111 U. S. 395; Wood v. Carpenter, 101 U.

3 Succession of Flower, 12 La. An. 216; S. 135. West v. Creditors, 1 id. 365.

4 Von Wickle v. Garrett, 14 La. An. 71. 106.

6 Vance v. Grainer, Cam. & N. (N. C.)

account of any disability of the defendant, and, consequently, that the mere circumstance that the person against whom a right of action accrues to a plaintiff, himself under no legal disability, does not save his claim from the operation of the statute because the defendant is an infant, non compos mentis, a feme covert, or alien enemy; and this was also the case under the statute of James. The reason for this is hardly apparent, in view of the fact that the plaintiff, in the case of his own disability, is so carefully considered, especially in cases where the defendant, by reason of disability on his part, cannot be made a proper party to an action. But while in the statute of James, as is also the case in the statutes of several of the States of this country, if the plaintiff "is beyond seas," when his right of action accrued to him, his remedy is saved to him until his return into the country, yet his right of action is not saved by reason of the defendant's absence "beyond seas; and unless provision is made by statute for the service of process upon an absent defendant, who has no known residence, place of business, or property in the State, a plaintiff's claim would be lost because of the impossibility of making service upon him.

1 Jones v. Tuberville, 16 C. B. 123; Fladory v. Winter, 19 Ves. 196; Fannin v. Anderson, 7 Q. B. 81; Story v. Fry,

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1 Y. & C. 603; Williams v. Jones, 13 East, 439.

2 Banning on Limitations, 85.



SEC. 254. Title by, under Statutes.

255. Statutory Provisions as to Adverse Possession.

256. What constitutes a Disseisin under these Statutes.

257. Entry or Possession without Color of Title.

258. Occupancy where Premises are not enclosed.

259. Entry and Possession with Color of Title.

260. Executory Contracts, &c., Possession under.

261. Mixed Possession.

SEC. 262. Limits upon the Operation of Possession by Construction.

263. Possession by Mistake. 264. Grantor in Possession. 265. Landlord and Tenant. 266. Co-tenants,

267. What Possession will sustain Constructive Possession.

268. How Adverse Possession may be proved.

269. Continuity of Possession.
270. How the Continuity of the Pos-
session may be broken.

271. Tacking Possession.
272. Effect of bringing Ejectment.

SEC. 254. Title by, under Statutes. -The acquisition of the title to land by adverse user is referable to and predicated upon the statutes of limitations in force in the several States, which, in effect, provide that an uninterrupted occupancy of lands by a person who has in fact no title thereto, for a certain number of years, shall operate to extinguish the title of the true owner thereto, and vest a right to the premises absolutely in the occupier.1 The object of these statutes is to quiet the

1 Trim v. McPherson, 7 Coldw. (Tenn.) 15. In Hopkins v. Calloway, id. 37, it was held that an adverse possession under a conveyance from the State, or from the State of North Carolina, for the requisite statutory period, not only bars the remedy of the party out of possession, but vests an absolute estate in fee-simple in the party in possession. But that where a person without color of title occupies land for the requisite statutory period, so that the claimant's right is barred, such possession does not take away the claimant's right and confer title upon the party in possession, but simply bars the claimant's remedy; and no subsequent action can be brought by the claimant, either at law or in equity, to question the title of the occupier. The bar of the statute having be

come complete, the right of the person entitled to its benefits is as full, complete, and perfect as though he was actually invested with the title by deed; and as against him the holder of the paramount title cannot use it for the purpose of either recovery or defence until he has destroyed the bar, either by purchase or limitation. Hale v. Gladfelder, 52 Ill. 91. In New Jersey, by statute, sixty years' continuous possession vests a full and complete title in the occupier. See Appendix, New Jersey, sec. 23. In Missouri, it is held that there is no need of presuming a deed from possession for the statutory period, as such possession by itself alone is evidence of an estate in fee, and equivalent to an absolute title. Warfield v. Lindell, 38 Mo. 561.

titles to land, and prevent that confusion relative thereto which would necessarily exist if no period was limited within which an entry upon lands could be made; and they are believed to be of even more importance to the interests of society than those relating to personal actions. The effect of these statutes generally is, not to transfer the fee to lands from the true owner to the occupier, but to destroy the remedy of the true owner for their recovery by action, and to vest an absolute right of exclusive possession in the occupier as against the true owner and all the world, and a right which is transferable and vests in his grantees a right to the lands as full and complete as could be conferred by the owner of the fee. In a word, it vests in the occupier a title to the premises by possession, which is in every respect equal to a conveyance of the fee.' But while the fee does not pass under a naked adverse possession for the requisite period, yet, when a person enters into possession under color of title, and occupies adversely for the requisite period, he is treated as being clothed with the title to the premises in fee-simple. The title acquired in such cases is predicated upon the presumption that the party in possession is the real owner, or that the real owner has surrendered or abandoned his claim to the premises, or he would have asserted his claim thereto within the requisite period, to save his right. The first statute enacted to settle the title to lands which were in the adverse occupancy of a person other than the real owner, for a long period of time, was enacted during the reign of Henry VIII., a copy of which is given in the appendix to this work. This statute fixed the period of occupancy requisite to quiet titles at sixty years, and was regarded with great favor. The period was materially lessened by Stat. 21 James I. ch. 27, and twenty years' adverse occupancy was fixed upon as sufficient to defeat the true owner's right of entry, except when he was at the time under some one of the disabilities named in the statute. In this country, the period within which a right of entry is barred is fixed by the statute of each State. In Maine, Massachusetts, New Hampshire, New York, Alabama, Delaware, Indiana, Illinois, Minnesota, North Carolina, South Carolina, Oregon, Maryland, Wisconsin, and Dakota, the period is twenty years; in Ohio, Pennsylvania, and Wyoming, twenty-one years; in Vermont, Connecticut, Michigan, Kentucky, Kansas, and Virginia, fifteen years; in Missouri, Mississippi, Nebraska, Texas, West Virginia, and New Mexico, ten years; in Florida, Tennessee, Arkansas, and Utah, seven years; and in California, Colorado, Nevada, Arizona, Idaho, and Montana, five years. It will be observed that the shortest periods are


1 Trim v.

McPherson, 7 Coldw. (Tenn.)

2 Hopkins v. Calloway, 7 Coldw. (Tenn.) 37; Hale v. Gladfelder, 52 Ill. 91.

& Abeel v. Harris, 11 G. & J. (Md.) 371; Cooper v. Smith, 9 S. & R. (Penn.) 26.

4 In Maryland, the statute does not extend to any possession except where "land shall be taken up under a common or special warrant, or warrant of resurvey, escheat, or proclamation warrant.”

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