39 Wis. 462 | Wis. | 1876
The controlling question in this case arises upon the statute of limitations. The circuit court instructed the •jury, in substance, that if they found that adverse possession began to run against the ancestor of the plaintiff, it continued to run against the plaintiff, notwithstanding she was under the disability of infancy when the right accrued to her. If the court was correct in this construction of the statute, the action cannot be maintained. The provision under which the question arises, reads as follows: “If a person entitled to commence any action for the recovery of real property, or to make an entry or defense founded on the title to real • property, or to rents or services out of the same, be, at the time such title shall first descend or accrue, * * * within the age of twenty-one years, * *■ * the time during which such disability shall continue shall not be deemed any portion of the time in this chapter limited for the commencement of such action, or the making of such entry or defense; but such action may be commenced, or entry or defense made, after the
The provision under consideration will be found in the territorial revision of 1839, and the revision of 1849 (Territorial Statutes of 1839, p. 260, § 13; R. S. 1849, ch. 127, sec. 12). When it was first adopted in New York we are unable to say; but it will be seen that long before it was enacted here it was. well settled in that state, as it was in England, that if an adverse possession commences in the lifetime of the ancestor, it will continue to run against the heir notwithstanding any existing disability on the part of the latter' when the right accrues to him or her (Jackson v. Robins, 15 Johns., 169); and this uniform construction of the statute of limitations ought not now to be disturbed. We must presume the law was en
"We. were referred by counsel for tbe plaintiff to some decisions in Kentucky in support of tbe position that tbougb tbe statute bad begun to run against tbe ancestor of tbe plaintiff, still it did not run against ber after bis death, by reason .of ber disability. But tbe saving clause in tbe statute of tbat state was in favor of those who were or shall be infants, etc., “ at tbe time when tbe said right or title accrued or coming to them.” And it has been held tbat “ if tbe statute begins to run against tbe ancestor, but by bis death tbe land descends to bis heirs, who are infants, tbe statute does not run on, but tbe infants shall have tbe time allowed by tbe statute after arriving at full age to bring tbis action.” Machir v. May, 4 Bibb, 43; May's Heirs v. Bennett, 4 Litt., 314; McIntire’s Heirs v. French’s Heirs, 5 id., 35. In Machir v. May, Boyle, C. J., points out tbe difference between tbe English and Kentucky statutes, and shows tbat tbe saving clause in tbe former relates to tbe time when tbe right first accrued; while in tbe latter “ it evidently relates to tbe time when the right accrues or comes to those laboring under tbe disabilities therein mentioned, and not to tbe time when tbe right first accrued to those under whom they derive their right.” Tbis, of course, is a most important difference. Our statute is similar to tbe English statute, tbe saving clause only extending to tbe pei’son on whom tbe right first descends or accrues.
It follows from these views that tbe ruling of tbe circuit court was correct; -and tbe judgment must therefore be affirmed.
By the Court. — Judgment affirmed.