Mercer's Lessee v. Selden. possession commencing under a void title may not become ad versary. The case in 12 Johnson, Jackson v. Waters, repudiates all claim under the grant of the French Canadian government, as a government altogether foreign to the colonial government of New York; so as to liken the possession of one claiming under such a grant to the possession of one without claim-upon the ground that such a grant was notoriously void, and so known to be by the person in possession under it. But the possession in that case was manifestly such as not to have created a bar, even if it had been adversary, and there is a strong intimation that it might have been ripened into a complete bar to the action. Jackson v. Cairns, 20 Johns., was the case of a conveyance in fee of the wife's lands by deed of husband and wife, not executed by the wife so as to be obligatory upon her, and an immediate re-conveyance of the property to the husband in fee. The husband thenceforward claimed the land as his own, and mortgaged it for the payment of his debts. The wife died in 1795, having had issue by the marriage, and afterwards the husband died in 1802. His son and heir took possession, and made another mortgage upon the lands. The mortgage made by the husband was foreclosed in 1805, and under the decree of foreclosure, sold to Cairns, who held possession under the purchase till the heir of the wife brought his action of ejectment in 1817. The court held that as the original conveyance was void as to the wife, it could be regarded as the conveyance of the husband alone; that under the statute 32 Henry 8, and a similar statute in New York, the conveyance of the husband and wife operated to convey only his interest in the estate; that is, his tenancy by the courtesy, and produced no discontinuance of his wife's estate; that the re-conveyance to him operated only to re-vest him with his former estate. That, in like manner, the mortgage produced no discontinuance of his wife's estate; so that, after her death, his possession was that of tenant by the courtesy. The title of his wife's heir to the possession had not yet accrued, and his possession could not be adversary to the heir. They intimated an opinion that the mortgage by his heir did not render the possession adversary, but did not decide this point, as it was unnecessary. They consider the possession as becoming adversary at Mercer's Lessee v. Selden. the time of Cairns's purchase, in 1805. But this was within the period of limitation; they therefore held that the action was not barred. . Here it is obvious that the right of entry never accrued to the wife's heirs until the death of the husband, who had good title. as tenant by the courtesy; and as but fifteen years had elapsed after the right of entry had accrued, the statute presented no bar. But we maintain that the doctrine which assumes that possession, commencing under a void title, cannot become adversary and be protected by the statute, is in conflict with the principle of the statute and all the authorities. The principle of the statute is to quiet possessions, and to protect tenants, after a reasonable length of time, from the necessity of exhibiting any title whatever. The following considerations and cases are illustrative of the policy of the statute of limitations, and the favour with which it is regarded by the courts. 1. The statute of limitations has been emphatically called a statute of repose, &c. Beatty's Adm. v. Burnes's Adm., 8 Cranch, 98; 3 Cond. R. 51. 2. The statutes of limitation ought not to be viewed in an unfavourable light, as an unjust or discreditable defence, but should receive such support from the courts as would make it what it was intended to be, a statute of repose. It is a just and beneficial law, &c. Bell v. Morrison, 1 Peters, 360. 3. "Of late years the courts of England and in this country have considered statutes of limitation more favourably than formerly. They rest upon sound policy, and tend to the peace and welfare of society. The courts do not now, unless compelled by the force of former decisions, give a strained construction to evade the effect of those statutes. By requiring those who complain of injuries to seek redress by action at law within a reasonable time, a salutary vigilance is imposed, and an end is put to litigation." McClung v. Silliman, 3 Peters, 270. 4. "Statutes of limitation have been emphatically and justly denominated statutes of repose. The best interests of society require that causes of action should not be deferred an unreasonable time. This remark is peculiarly applicable to land titles. Nothing so much retards the growth or prosperity of a country Mercer's Lessee v. Selden. as insecurity of titles to real estate. Labour is paralyzed when the enjoyment of its fruits is uncertain; and litigation without limit produces ruinous consequences to individuals." The court therefore approves the Kentucky statutes of limitation. Bradstreet v. Huntington, 5 Peters, 407. 5. "From as early a date as the year 1705, Virginia has never been without an act of limitation; and no class of laws is more universally sanctioned by the practice of nations and the consent of mankind, than those laws which give peace and confidence to the actual possessor and tiller of the soil," &c. Hawkins et al. v. Barney's lessee, 5 Peters, 457. The course of Kentucky approved, even her "seven years law;" same case. And among English cases, see the modern one of Tolson v. Kaye, 3 Bro. and Bing. 217, decided in Common Pleas, in 1822. The case of Taylor v. Horde, alre: dy cited, is an authority to prove that possession held under a void common recovery was protected by the statute of limitations. In Smith v. Bentis, 9 Johns. 180, Spencer, delivering the opinion of the court, said: "It has never been considered as necessary to constitute an adverse possession that there should be a rightful title. Whenever this defence is set up, the idea of right is excluded; the fact of possession and the quo animo it was commenced or continued are the only tests, and it must necessarily be exclusive of all other rights." In Smith v. Lorillard, 10 Johns. 356, C. J. Kent said, in delivering the opinion of the court, that "after a continued possession for twenty years under pretence or claim of right, the actual possession ripens into a right of possession, which will toll an entry." See also La Trombois v. Jackson, 8 Cowen, 589, especially the opinions of Jones, (Chancellor,) p. 602, 603; and Spencer, p. 609— 611, citing Jackson v. Wheat, 18 Johns. 44; Jackson v. Newton, 18 Johns. 355; Jackson v. Woodruff, 1 Cowen, 286. In Jackson v. Newton, 18 Johns. 355, the possession of the defendant was held under a defective deed, a deed without a seal, which, therefore, passed no title, yet was considered adverse, and having continued for twenty years, barred the plaintiff's entry. Ewin, v. Burnett, & Peters, 41, holds that adverse possession Mercer's Lessee v. Selden. of twenty-one years under claim or colour of title merely void, is a bar to a recovery under an elder title by deed, although the adverse holder may have had notice of the deed. This was the case of an unenclosed lot in Cincinnati. Harpending v. The Dutch Church, 16 Peters, 455, held that the title of a devisee, entering under a void devise, may be protected against the heirs by the statute of limitations. See also Hudson v. Hudson's Adm., 6 Munf. 355, and 5 Peters, 354; also Patton's lessee v. Easton, 1 Wheat. 479. Lastly, shall Dr. Selden be regarded as having entered as guardian, and therefore holding in subordination to the title of his wards? This fact is also repudiated by the special verdict, which finds that he entered in his own right; and by the decree of the Court of Chancery, which has rejected all claims against him as guardian. But if he did enter as guardian, that guardianship has been long since terminated and the accounts finally settled. There is no authority to prove that a guardian will not be protected by the statute of limitations after his guardianship has terminated. On the contrary, Littleton, sect. 124; Co. Litt. 896, 90 a ; Cro. Car 229; Cro. Jac. 219; which show that the guardian, whether de jure or de facto, whether proprius tutor or alienus tutor, is liable to the action of account on the part of his ward, show necessarily that he is entitled to the protection of the statute, because the action of account is expressly limited by the statute. It was so by the statute of James, and is so by that of Virginia. So too, in equity, where the guardian is held to account for rents and profits, the court will lay hold of "any such thing" as a waiver of the account after the infant came of age, to put an end to the claim. Morgan v. Morgan, 1 Atkyns, 489. Why should not the possession of a former guardian under a claim of right in himself, and a long and notorious application of the profits to his own use, as effectually disseise his former wards, and entitle him to the protection of the statute, as the possession of a tenant in common, joint tenant, or coparcener, denying the right of his co-tenant, and applying the profits to his own use, would disseise his co-tenant, and entitle the disseisor to the protection of the statute of limitations? See Adams on Ejectment, 56; Mercer's Lessee v. Selden. Blanchard on Lim. 9, 1 Law. Lib. 5; Fisher v. Prosser, Cowper, 218; Doe dem. Stellings v. Bird, 11 East, 50. The case of Swann v. Selden, in the Court of Appeals, has decided the very question we are now considering. The opinions of Judges Brockenborough and Cabell, constituting the majority of the court, have held that the statute was a complete bar to all the equitable claims preferred in that cause. The case is not reported, but adduced in manuscript. The opinion of the court was delivered by Mr. Justice McLEAN. This case is brought before this court, from the Circuit Court of the eastern district of Virginia, by a writ of error. An action of ejectment was commenced by the lessors of the plaintiff, to recover possession of certain undivided interests in a tract of land in Loudon county. On the trial, the jury found a statement of facts, on which the questions of law mainly arise. Mary Mason Selden was seised and possessed in fee simple of certain tracts of land in the county of Loudon, estimated to contain four thousand acres, a part of which is the land in controversy. She intermarried with Mann Page, who died in 1779, leaving his wife and three infant children, John, William Byrd, and Jane Byrd. Mrs. Page continued a widow, seised in her own right, until 1782, when she married Wilson Cary Selden; who in right of his wife entered upon and held the lands. Soon after the marriage, Selden became guardian of the three infant children aforesaid, gave bonds, &c., and continued to act as guardian during the minorities of the two sons, and until the marriage of the daughter. On the 22d December, 1784, Selden and wife conveyed in fee simple to Cary Selden, father of the husband, the whole of the four thousand acres of land, with the exception of two thousand acres deeded to W. B. Page. Mrs. Selden was privily examined as the statute requires. This deed was acknowledged and recorded by Selden the 14th April, 1818, long after the decease of the grantee. On the 1st January, 1785, Cary Selden and wife re-conveyed the land, with the exception above stated, to Wilson C. Selden; which deed was also recorded the 14th April, 1818. Selden and wife, previously to the execution of the above |