Ejectment for a tract of land, of which it appeared the defendant was in possession, claiming under a deed from Levi Fagan and his wife, Fanny, to Thomas Walker, and the will of the said Thomas giving her a life estate therein. The land belonged in fee to the said Fanny, the wife of said Levi. The deed to Thomas Walker was signed and sealed by the said Levi and his wife, Fanny, in December, 1811, but was not
so acknowledged by her, as by the laws of this State, to pass her legal interest. The said Fanny died about 1825, leaving Franklin L. Fagan, one of the lessors of the plaintiff, her only child and heir at law. Her husband, Levi Fagan, died in February, 1839. Thomas Walker took possession under his said purchase and so remained until his death, when his widow, the present defendant, continued the possession until this time. The possession of the said Walker and his widow was for more than seven years before the death of the said Levi, and this action was not commenced until November, 1843, more than three years after the death of the said Levi, the plaintiff's lessor being of full age at the death of Levi. The plaintiff insisted that there never having been any such probate or acknowledgment of the deed as passed the interest of the wife, the possession of Walker and his widow did not become (635) adverse until after the death of the husband, Levi Fagan, and that he had seven years after that time within which to assert his title. The defendant contended otherwise. A verdict was taken for the plaintiff, subject to the opinion of the court upon the question of the statute of limitations. Upon this question the court, upon the authority of Jones v.Clayton, 6 N.C. 62, decided in favor of the defendant, and directed the verdict to be set aside and judgment of nonsuit to be entered. The plaintiff appealed from this judgment to the Supreme Court.
Before the statute 32 H. VIII, ch. 28, when a husband discontinued, by fine or settlement, the freehold of the lands held by him in right of his wife, or when he was disseised of the same, and neglected to recover the possession of the same during the coverture, she or her heirs on his death, were driven to their action cui in vita, or sur cui in vita, to regain the said land. But the above statute gave the wife and her heirs a right of entry into her land on the death of the husband. And they thereafter were enabled to bring any of those real actions which another person could then bring who had a right of entry into the land. In all these actions, where the plaintiff declared upon his own seisin or possession therein, he or she was, by the statute 32 H. VIII, ch. 2, sec. 3, compelled to bring his or her action within thirty years, or be barred of his or her right of entry, and were thereafter driven to his or her writ of right. But under and since these statutes, if husband and wife had joined in a deed of bargain andsale, which was afterwards enrolled, the wife might enter after her husband's death, although she was a party to the deed, against which she might plead non est factum. 10 Rep., 42; 1 Roper on Husband and Wife, 60. This was the law, because the statute of uses (27 H. VIII)
transferred only that use to the possession which the husband had; and that could only be an estate during the coverture, unless he had a child born alive during the coverture, and then an estate by (636) curtesy during his life would pass. The bare signing and sealing of the deed by the wife was a perfectly void act. The husband has a particular estate in the lands of his wife, which he may alien, and the possession of his vendee, although held by a deed of bargainand sale, professing to transfer a fee from the husband and wife, is still in law no more or larger estate than the husband had a right to transfer, for the statute of uses transferred that and no more. Then the estate in the possession of such a vendee, and the remainder in fee in the wife, formed but different parts of one and the same entire estate, and the possession of the former will not be adverse, so as to bar the latter by force of the statute of limitations. The possession of the particular tenant is never adverse to the title of him in remainder or reversion (Taylor v. Horde, 1 Burr., 60; Fisher v. Prosser, Cowp., 218; 2 Roscoe on Real Actions, 504), and the possession of the husband's bargainee in fee is the same as if the deed were expressly for the husband's and wife's estate. The wife of Fagan had no right of entry during her life; nor did her heirs at law have any such right of entry until the death of Fagan in 1839, and the possession of the defendant and those under whom she derives title was not adverse until the death of Fagan in 1839. And then did a right of action of the land first accrue
to Mrs. Fagan, had she been alive, or to her heirs. Had Mrs. Fagan been alive at the time of the death of her husband she would not have been driven to the necessity of invoking the saving proviso of three years in the act of limitations, because no time had ever commenced running against her, while she was covert, as, during the life of her husband she would not have had a right of entry. Time would have begun to run against her only from the period she had a right to enter, and that could not have been until the death of her husband, when she would have been a femme sole. And that being the first time an action could have been brought by her (as those in possession under Fagan could not say they, before that time, held adversely to her) she and her heirs, like all other persons, had seven years to commence (637) their action, before her or their right of entry would be tolled by force of the statute of 1715. That time had not run when this action was commenced, and of course the right of action still remained to the lessors of the plaintiff, who are the heirs at law of Mrs. Fagan. If Walker had entered into these lands as a disseisor or wrongdoer, and Fagan had then neglected to enter in right of himself and wife, and more than seven years had run while the wrongdoer had held an adverse possession, then, on the death of Fagan, she could have had
but three years, under the saving proviso, to have entered. Why? Because seven years had already run against her after her right of entry had first accrued. But this adverse possession shall not hurt her (says the statute), because she was, during all the time, a femme covert; she still shall have three years after the death of her negligent husband to bring her action. The proviso was intended to save the rights of entry of females who had been placed in this predicament by the laches of the husband, permitting seven years adverse possession to run from the time his wife had first a right of action for her land, and which action he had omitted to bring for her. But the right of entry of a person out of possession was not barred by the Stat. 21 James I, ch. 16, unless the possession of the party in possession was adverse to the party having the right to the reversion. And there could be no adverse possession where the party in possession held the estate consistent with that of the party entitled who was out of possession. Brown on Actions at Law 30. The only difference between the statute of James and our statute of limitations consists in the length of time mentioned in each. The English statute tolled the entry generally after twenty years; ours, after seven years adverse possession (with color of title, say the courts). Those persons who were under disability had ten years by the Stat. James; here but three years after disability removed. The second section of the original act of 1715 is not brought forward in our (638) Revised Statutes, and the case before us rests on the law as it stood on the death of Fagan. And we think, by that law, that the lessors of the plaintiff had seven years from that period to make their entry; because the freehold life estate that was in Mrs. Walker was not adverse, but was consistent with the reversion in fee that was in Mrs. Fagan and her heirs. These two estates were but parts of one entire estate in fee simple; and the possession of Walker could not be adverse to the right of Mrs. Fagan and her heirs until the death of Fagan, the husband. And, as we have before said, the right of entry of the heirs of Mr. Faganthen first accrued. They therefore stand, like all other persons not laboring under disability, and have seven years to bring their suit from the death of the tenant by the curtesy. We have been the more lengthy in these remarks in consequence of a different decision which we find reported, Jones v. Clayton, 6 N.C. 62, which we cannot follow. The jury found a special verdict for the plaintiff subject to the opinion of the court; whereupon, the court gave judgment for the defendant and the lessors of the plaintiff appealed. We are of opinion that the said judgment must be reversed, and judgment rendered for the plaintiff upon said verdict.
PER CURIAM. Reversed.
Cited: Williams v. Lanier, 44 N.C. 32, 38; Osborne v. Mull, 91 N.C. 206.
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