Nov.1814.

v.

COLUMBIA, certain, that she can take no advantage of it during the husband's life; nor any other person but herself, Ross et al. or her heirs, or some one claiming under her, after DANIEL. his death. The deed, therefore, in the present case stands unimpeached as to the defendant in this action; he has no right to call it in question.

2d, The next point, whether a man who has not been in possession of lands for five years, before he brings suit is barred or not; is one which I do not recollect to have been on any occasion, before the present, brought before this court. But if this doctrine should be established in this country, it would amount to a forfeiture of nine tenths of the land in South Carolina. It is evident to every man of common observation, that the wood lands in our country are not susceptible of possession, till actual settlement and cultivation is made on them; and when it is considered how large a portion of them are in this condition, it is easy to foresee the ruinous consequences of such a principle.

The right of entry, or right of possession is all that is necessary in this country; and, therefore, a good title to lands has ever been held sufficient to maintain trespass or ejectment, whether the owner has ever had actual possession or not. And upon this principle it has often been determined that a grantee, or those claiming nnder him from the lords proprietors, may maintain this action, though no actual entry was ever made by him into, or upon the lands since that time. Until actual entry be

Nov.1814

made by an intruder, there is no one to dispute the COLUMBIA title. When that happens, and not till then, the plaintiff is bound to bring his action within five Ross et al. years against such intruder; otherwise, his right of DANIEL action as against that possession will be barred..

And this is the true construction of our limitation act, that wherever there is an adverse possession by an intruder, the action must be within five years against him. As where there is no adverse possession, no entry or action can be necessary ; but if even a constructive possession, or entry in or upon such lands were necessary, I am of opinion that the payment of taxes, and the annual returns of them, would, and ought to be deemed sufficient for that purpose. This kind of constructive possession of lands has been held sufficient to accompany an ancient deed, and to bring it within the rule of evidence of proving itself.

3rdly, I come now to consider the main ground in this case for the new trial: namely, whether in case the statute once begins to run, any thing shall stop it from running on, till it is a complete bar to the

action?

Upon this point, a number of English cases have been produced, as well as some from our sister states; all of which I am bound to respect from the great legal information of the judges, who have delivered their opinions in them; and I am very far from being so presumptuous as to say that any of

V.

Nov. 1814.

COLUMBIA, them are wrong: but this I think I may say, without detracting from the merits of their decisions, Ross et al. that our act is an exception from all those referred to in England or America, and, therefore, that their determination cannot apply to the case now before

DANIEL.

us.

Mr. Rose, the ancestor of the plaintiff in this ease, died in 1801; and the present defendant entered upon the lands in question in 1798. So that he had not possession more than three years; consequently, two years of the time necessary to bar the ancestor (had he been living) were still to run. Now the great question is, "Did his death stop the statute from running, or not?"

It is admitted that two or three of his children were infants at the time of his death; so that every thing in this case must depend upon the operation of law; and this again must depend upon the true construction of our limitition act itself, and not upon the construction or analogy of the English acts of limitation, nor of any act of any other state in the Union.

The words in our act of limitation, of 1712, are these: "If any person or persons, to whom any " right or title to lands, tenements, or heredita"ments within this province, shall hereafter de"scend or come, do not prosecute the same within "five years after such right and title accrued, then "he or they, and all claiming under him or them,

Nov.1814.

บ.

shall be forever barred to recover the same. COLUMBIA, "Excepting any person or persons beyond seas, or "out of the limits of this province, feme covert, or Rosz et al. "imprisoned, who shall be allowed seven years to DANIEL. 66 prosecute their rights and title, or claim to lands, "&c. after such right and title accrued, and at no "time after the said seven years: And also except❝ing, any person or persons that are under the age "of twenty-one years; who shall be allowed to prosecute their claims at any time within two

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66

years after they come to age, and if beyond seas, "three years. 99 "The act of 1788 further en"larges the time in favour of infants, and allows "five years after they come of age, to prosecute "their rights and titles to lands."

Herein are clear exceptions, out of the act in favour of infants, first of two years, and then of five years, after they come of full age, to bring their suits. The words in the exceptions or provisos of these acts are very plain and easy to be understood; there is no uncertainty or ambiguity in them. From the moment of the death of an ancestor, lands go by descent to the heir at law of the ancestor; and, if he be of full age at the time of his deceased ancestor's death, he has five years to bring his suit, before the act will bar him of his right of action. If he be an infant under age, he has five years after he arrives at full age to commence it. The true meaning of which is, that if the heir at law wants one day of being of full age at his ancestor's death, he has five years and one day to bring his suit. If on the other

Nov.1814.

v.

COLUMBIA, hand he is only one day old, at the time of the death of his ancestor, he has twenty-one years, lacking Rosz et al. one day, and five years after, making twenty-six DANIEL. years, all but one day, to bring his action. This, in my opinion, is the true and proper construction of our limitation acts, when taken together. Now to apply the facts in this case to the above principles. The defendant entered on this land in 1798. Mr. Rose, the ancestor, died in 1801; no title had accrued to the defendant at the time of Mr. Rose's death; for a right by possession, does not accrue till the last moment of the time fixed by law. It is an entire thing, and must be complete and ended before it is consummated: What then became of the fee of the land on Rose's death? Land cannot be in abeyance; it must vest some where on the ancestor's death, and if he has heirs, the law carries it down to them. It was at this moment that the land in question, to make use of the language of the act, did "descend and come" to the heirs of the deceased Mr. Rose. This descent found them infants, under twenty-one years of age. A new estate started into existence by the death of their father, and, from that period, the acts gave them the time mentioned in the exceptions or provisos, to commence their suits for recovery of their rights, which time is not yet expired.

As to the operation of the statute, it was arrested by the act of God, which, like a flood, swept away all the time that had accrued, or had run on against Rose in his life-time, till the period of his death. At that time a new right commenced, and the time