8 Johns. 262 | N.Y. Sup. Ct. | 1811
delivered the opinion of the court. The .defence, in this cause, turns wholly upon the question, whether the right of recovery is not barred by the statute of limitations.
The lessor of the plaintiff was an infant when the adverse possession began, in the year 1772. But admitting that the father, Vincent Matthews, was tenant by the curtesy, there was then a particular estate for life in the premises existing, and no right of entry had descended, or could vest in her, during the continuance of that estate. It was declared, in Jackson v. Schoonmaker, (4 Johns, Rep. 390.) to be the law, that the statute of limitations did not affect the right of a remainder-man during the continuance of a particular estate; nor would the acts or laches of the tenant of the particular estate, affect the party entitled in remainder. The right of entry of the lessor did not accrue, and could not exist during the estate by the curtesy. That estate ceased by the death of Matthews, in 1784, and had she been under no disability, she would then have been bound to have brought the suit within 20 years thereafter, but she was at that time a feme covert, and protected from the statute of limitations, by the proviso in favour of the disability of coverture. (Laws, vol. 1. 563.) This is not a case of cumulative or successive disabilities, and we, at present, have no concern with any question to which they might give rise. The coverture was the first and only disability existing, when her right of entry accrued, and that is expressly saved by the statute.
There is no bar to the plaintiff’s right of recovery, under the statute of limitations, provided her father was a tenant by the curtesy, and this is the next and only real point in the case. '
There was no pedis possessio, or possession in fact, of the premises, in the popular sense of the words, by either Matthews or his wife, during the coverture; for the lands continued vacant, or remained as new lands, wild and
These cases are as strong as the present, and prove that actual entry, or pedis possessio, is not absolutely requisite, and that if the party is constructively seised in fact, it will be sufficient.
The court are accordingly of opinion, that the plaintiff is entitled to recover one undivided eighth part of the premises.
Judgment for the plaintiff.'