delivered the opinion of the court, and, after stating the facts, proceeded as fоllows:
It is contended, by the plaintiffs in error, that the judge misconstrued the law in his instructions tq the jury.
The case is admitted to be within the act of limitations of the state of Tennessee, and not within the letter of the exceptions. But it is contended, that, as the plaintiffs were disabled, by statute, from surveying their land, and, consequently, from prosecutÍQg this suit with effect, they must be excused from *29 bringing it; and are within the equity, thоugh not within the letter of the exceptions.
The statute of limitations is intended, not for the punishment оf those who neglect to assert théir rights by suit, but for the protection of those who have remainеd in possession under colour of a title believed to be good. The possession of the defendants being of lands, not within the Indian territory, and being in itself legal, no reason exists, as connеcted with that possession, why it should not avail them and perfect their title as intended by the aсt.
The claim of the plaintiffs to be excepted from the operation of the aсt.is founded, so far as respects this point, not on the character of the defendants’ рossession, but on the impediments to the assertion of their own title.
Wherever the situation of a party was such as, the opinion of the legislature, to furnish a motive for excepting him from thе operation of the law, the legislature has made the exception. Jit would be, going far for this court to add to those exceptions. It is admitted that the case of the plaintiffs is nоt within them', but it is contended to be within the same equity with those which have been taken out of the statute; as where the courts of a country aro closed so that no suits can be instituted.
This proрosition cannot be admitted. The difficulties under which the plaintiffs laboured respected the trial, not the institution of their suit. There was no obstruction to the bringing of'this ejectment at an earliеr day. If, at the trial, a survey had been *30 found indispensable to the justice of the cause, the sоund discretion of the court would have been exercised on a motion for a continuance. Had such amotion been overt uled, the plaintiffs would have been in the condition of all those who, from causes which they cannot control, are unable to obtain that tеstimony which will establish their rights. If this difficulty be produced by the legislative power, the same power might provide a remedy; but courts cannot, on that account, insert in the statute of limitations an exception which the statute does not contain. . It Jhas never been determined, that the imрossibility of bringing a case to a successful issue, from causes of uncertain duration, though created by the legislature, shall take such cáse out of the operation of the act of limitations unless the legislature shall so declare its will.
It as also been contended, that in this the рossession is not under colour of title.
The ejectment was served on Ragan, who was the tenant in possession, and, on his motion, David Mabane and John Thomson, executors of the last will and testament of James Mabane, defceásed, and landlords, to the said Henry Ragan, were аdmitted as defendants with him in the cause. At the trial they produced a grant for the land in controvеrsy to James Mabane, and .proved, “that Ragan took possession of the same, under James Mabane, the gcantee, in 1804, and continued to occupy the same ever since.”
It is argued that, though Ragan is. stated to have taken possession under Mabane, he is not stated-t« *31 have continued that possession under Mabane, and this, court will not presume that he did so. Withоut such presumption, his possession, it is said, would not-be under colour of title, and, consequently, would be no bar to the action according to the statute of Tennessee.
The court cannot yield its assent to this hyper» criticism on the language of the exceptions. The reрresentatives -of Mabane came in as defendants, and plead the general issue. They are stated on the record to be the landlords of Ragan. When Ragan is said to have taken possession under Ma-bane, and to have continued to occupy the land, the fаir inference is that the possession was continued under the same right by which it was originally taken.. • Nеither the statement of the counsel, nor. the opinion of the court turnsj in any degree, on thе nature and character of Ragan’s possession, but on the disability; of me plaintiffs to survey their land. For all these reasons this courtis decidedly of opinio®, that the possessio' .¿f Ragan was the possession of Mabane, and was under colour of title.
Judgment affirmed.