| Conn. | Jun 15, 1810
Lead Opinion
(after stating the case.) It was contended by the defendant, that the plaintiffs could not recover without joining the other persons in the same degree of kindred with themselves in the suit. This objection cannot prevail, since a practice has obtained in this state, where there are several who have a joint title, for one or any number of them to sue and recover against him who has no title. Although this is not the rule of the common law of England, yet, as no inconvenience is expo-
It is contended by the defendant, that when the title to the premises accrued to said Mary, she was a minor; and by the clause in the statute of limitations saving the rights of minors, they must sjie within five years after hav* ing arrived to the age of 21 years, and not afterwards; that much more than this time had elapsed, and no suit had been brought; and her becoming a feme covert after the title had accrued whilst a minor does not bring her within the proviso of the act; that the true construction of the statute is, that if the title first accrues during minority, five years after that ceases is given in which a suit may be brought; that if the title accrues during coverture, five years is allowed after the disco-verture. On the other, hand, the plaintiffs contend that the object of the statute was to save the rights of the minor and feme covert, because of their inability to pursue them; and that it is as important that a minor who cannot prosecute her rights with sufficient discretion during minority, who becomes a feme covert during that period, and by this means is incapable of prosecuting them, should be effectually protected, as one to whom the title accrues during coverture. If the sound construction of the statute is as contended for by the defendant, it puts an end to' the case; but as the case is with the defendant on another point, viz. that Goldear is a tenant by the curtesy, provided the construction is as
f 3 As to the point respecting the curtesy, there is ño question but what there must have been; by the English law, an actual seisin of the wife of the premises during the coverture, to entitle the husband to the curtesy.
It is said that unnecessary departures from the common law of England are not to be favoured ; that by such means every thing is rendered uncertáin. I am' fully of opinion, that few maxims of our law are more important than that of stare decisis; but it must be acknowledged by all, that our system of law respecting feal property is, in many instances, very different from the English system. We have in some instances, when we have adopted the principles of the English law, extended them to cases which, by the adjudications of the English courts, have not been supposed to fall within the governing principle; in others, we have adopted entirely different principles-; and in all such cases where this has been done, which are pari rations with those already settled, if we reject our own and adopt theirs, we Shall mar the symmetry of our law; and the preservation of symmetry in our system, I also view as a most important consideration. In England, it is not sufficient that a man is proprietor of real property, and has a perfect right to it when he dies, to cause it to descend to his heir at law. No : he must be actually seised thereof. " The maxim is seisinafacit stipitem; and the person that is heir to that property, will be heir to him that was last seised. If A. should die, who owns Whiteacre, which descended to him from his father, but has not been actually seised, leaving a brother of the half blood, B., and a sister, C., of the whole blood, this estate cannot, descend to C., his sister and heir.; for B., being of the
By the English law a devise will not operate upon real property, of which the devisor is disseised. Seisin is an indispensable requisite to give effect to the devise. A devise, by our law, is good, although a man is disseised. Seisin is necessary in their law, and nothing but ownership in our law. We have always considered ownership of real property sufficient to maintain an action of trespass against every intruder; but by the English law, actual possession by entry is necessary. We have always considered ownership as giving a right to possession of real property, as much so as ownership of'personal property. Ownership in the one case draws after it the possession as much as in the other case; and whenever a right of possession is lost, all title and ownership are lost. So the statute of limitations respecting lands has always been construed. The statute, in the words of it, does not take from the original proprietor his title; it only tolls his right of entry; and yet this statute has been always considered as barring all claim of title, whilst the same words in the English statute have been considered not as having any effect on the title, but only on the right of entry, and the lands may be recovered by a form of proceeding proper for such a case. The English law distinguishes betwixt a light of possession and a right of property ; but our law does not. Wherever there is
The decision of the court, in this case, is no departure from fixed rules and precedents. The departure from the English rule respecting the efficacy of seisin has long since been departed from: and to adhere to it in this case would mar the symmetry of our law.
Vide Hillhouse v. Chester, 3 Day, 166.
Concurrence Opinion
I concur fully in the opinion already expressed, that James Goldear had a right to the property in question as tenant by the curtesy.
I am also of opinion that the plaintiffs are barred by an adverse possession under the statute for quieting estates. And here the question is, whether Mary Wood-house, who was a minor when her right of entry first accrued, has only till she is of age and five years after, to pursue her claim; or whether her marrying during minority is to extend the operations of the proviso tó the
Had the proviso in the statute been omitted, all natural persons, as well minors and feme coverts as others, would have been barred. The proviso cannot, therefore, be extended beyond its obvious import.
The first inquiry which occurs is, who are the persons within the proviso; and the statute gives the answer. They are those wh®, at the time such right of entry fret accrues, are within the age of twenty-one years, feme coverts, non compos mentis, imprisoned, or beyond the seas.
The next inquiry is, what is the extent of the saving in favour of the persons? and to this the answer is equally explicit. They must take benefit of it within five years next after their full age, discoverture, or coming of sound mind, enlargement out of prison, or coming into this country; and at no time after the said five years.
I cannot doubt for a moment as to the meaning of the legislature, in using these correspondent terms in the different parts of this proviso. They meant, unques? tionably, that a person who was a minor when his or her right of entry first accrued, should have until five years after coming of full age to pursue his or her claim; that a person who was a feme covert at the time her right of entry first accrued, should have five years after discoverture; that the man imprisoned should have five years after enlargement out of prison; the non compos mentis five years after coming of sound mind; and the person beyond seas, five years after returning to this country.
And I cannot believe that it would occur ⅛ the mind of any person, from merely reading the statute, that the legislature could mean to say, that a person who was a minor, when her right ot entry first accrued, should bave until five years after discoverture to pursue her claim;,
Were any great evils to be apprehended from adopting what appears to me the plain literal meaning of the statute, it might excite a doubt as to the correctness of my opinion.
But on the most liberal construction of the proviso, a quiet possession of nearly twenty-five years may be interrupted by the dormant claim of a minor. And the claim of a feme covert may exist still longer. And by being an Idiot, or beyond seas, the claim may exist through a whole life. And upon an opposite construction, disability may be ádded to disability to an indefinite extent.
Should any persons still be under disabilities, when the statute is about to attach, their rights may be taken care of by those whose duty it is to see to their interest.
I consider this statute to be one highly beneficial to the community; and should be sorry to see its operation curtailed by any strained construction. No man would feel safe, either in purchasing lands, or in making lasting and beneficial improvements, if a quiet and uninterrupted possession of sixty or a hundred years might be interrupted by some latent claim. Were this, therefore, a new question, I should have no doubt either upon the letter or spirit cf the statute. And this opinion is fully supported by a decision of the court of king’s bench-, in the case of Doe, d. George, v. Jesson. But this court has once decided the other way, and great respect is due to that adjudication. On a doubtful point, I should con
I thought thát tenancy by the curtesy was the same here as in England; and that seisin in the wife during coverture was, of course, an indispensable requisite. On that ground he dissented to the opinion of the court.
New trial not to be granted.