
    Norvell vs. Gray’s lessee.
    
    Limitation. Adverse possession» The operation of the statute of limitations which has commenced running in favor of a parly, who is in the actual adverse possession of land, is not arrested by the entry upon the land of the person having the legal right thereto, unless that entry be peaceable, in a legal sense, and of such a character as to vest him who enters with a seisin of the land,
    Same. Right of Entry, Act of 1819, chap 23. The right of entry as it existed at common law is abrogated by the express and positive terms of the act of 1819, ch. 28 ; and this act provides but one single method by which the bar of the statute may be suspended, viz : By a suit in law or equity effectually prosecuted against the person or persons m possession.
    
    Trespass. What it is. A peaceable entry is not one merely unaccompanied with actu* al violence' or breach of the peace $ but every entry upon the soil of another, in the absence of a lawful authority, is a trespass, and it matters not that there is no actual force, for the law in such case implies force.
    Seisin, Of lands held adversely -how far acqmrcd by the entry of the rightful owner. Quere. Will the entry of the rightful owner upon lands held adversely by a wrongful possessor, uuder an invalid or inferior assurance, purporting to convey an estate in fee, give to the owner seisin so far forth as the wrongful possessor has not actual pos session"?
    This action of ejectment was tried at the May term, 1850, of the circuit court of Claiborne county, Anderson R. M., Judge, presiding. Judgment was rendered for the plaintiff, and the defendant appealed in error.
    Heiskell, for plaintiff in error.
    The first proposition, taken in this case, is that an entry under our statute of limitations does not stop the bar of the statute.
    Under the statute of 21st Jac. 1, ch. 16, the action of ejectment was barred only as being dependent upon the right of entry. The statute only barred the entry. The courts held that the right of action was dependent upon, the right of entry, and where the statute tolled the entry, the action was gone, because the. action would not lie when the right of entry was extinct. But this right of entry could be exercised at any time within twenty years next after the right or title first descended or accrued — and in default, the person failing was excluded and disabled from such entry. See the statute in Angelí on Lim., ch. 3, p. 55. If an ejectment be brought within the twenty years, thé right of entry then subsisting will support the right to recover the lands. But if the twenty years have elapsed, the right of entry is gone, and the action of ejectment, which depends on the right of entry, is also gone. But if within twenty years, the right to enter is exercised, then the. statute is complied with, because he has made his entry, and the default on which he forfeits his entry has not occurred, so that after making his entry within the twenty years, he might at any time thereafter bring ejectment : See Angelí 1,63. But a subsequent statute of 4 and 5 Anne, ch. 16, provides that the action shall be begun within one year after entry. Our statute of 1715, was similar to this, and obtained a like construction. But by the act of 1797, ch. 43, and by our statute of 1819, a different law was made, operating not upon the right of entry, and through that mediately upon the right of action, but directly upon the right of action. By that act, all persons having had seven years possession, and no claim by suit at law or equity, effectually prosecuted, set up within the aforesaid time, shall be entitled to hold the lands. And the persons who shall have neglected for the said time to avail themselves of the benefit of any title, &c., by suit at law or equity effectually prosecuted, shall be forever barred, and the holder shall have an indefeasible title in fee simple.
    Here are words as clear, explicit and unambiguous as any in the mother tongue, to show that an entry alone is not enough. The law stood before, that an entry would do,, and the case of Me Clung vs. Ross was decided upon that state of law, but this act required a suit, and that prosecuted with effect, otherwise it was not provided that the entry should be tolled, but that the right should be gone. The two statutes are different toto caili. So careful is the Tennessee statute of guarding this favorite provision, it closes each section with a proviso embodying the same idea: “Provided, that such suit so commenced, to prevent the bar, shall be a suit effectually prosecuted, and no other.” No mention is made of any other plan by which the bar may be saved, and no decision can be produced authorizing any such construction as that put upon the act in this charge, except it be made upon the act of 21 Jac. 1, ch. 16. Now, it. may be, and we concede, that a continuous possession is required to complete the bar, so the statute evidently intends, and so our courts have held, and it would be true undoubtedly, that an eviction from the lands during the seven years would be an interruption of the possession, such as not to save the bar in the way prescribed by the statute, but to .prevent the holding for the time required to perfect it. But if the possession is not interrupted and broken, the statute is then complied with, and the saving of the bar must depend on the compliance, on the part of the claimant, with the forms the statute imposes on him — he must make his claim — How ? by entry on the land ? No, by suit in law or equity prosecuted with effect. A mere entry on the land, peaceable or violent, will not of necessity interrupt the possession. In this case it is shown not to have interrupted the possession, but the intrusion was redressed by a suit at law, in which the plaintiff’s lessor was turned out of possession.
    But let us see how far the courts have gone on this doctrine. In Barton's lessee vs. Shall, Judge Haywood says : “To favor our own people, they provided by the act of 1797, ch. 43 sec. 3-4, that a possession should not be defeated by entry or claim, but by action only. * * They closed the controversy as to naked possession, * * for entry and claim, substituted an action.” Peck’s Reps., 219. See 2 Meigs’Digest, citing Waterhouse vs. Martin, p. 745. See his summing up of the authorities, bottom of same page.
    If an entry could be effectual at all, it must be peaceable.t For under our act of 1821, ch. 14, it is enacted that no person shall enter into any lands, &c., but where entry is given by law, and then only in a peaceable manner. N. & C. 342. This seems to have been conceded below, biit the court charges that the presumption was that the entry was peaceable. , Upon what principle does it so presume? The plaintiff must; make out his case by proof, and the natural presumption is just as strong that a defendant who has held land for twenty years under claim of right, will not go out without compulsion, as it is that a plaintiff will use no force to gain his right. Besides the principle that the condition of the defendant is the better, contravenes the principle laid down by the court. Really there is no presumption on the subject. It is a matter upon which the plaintiff relies to defeat a right otherwise perfect, set up by a person favored in law — a possessor — and being capable of proof, it must depend on proof of the manner, as well as the fact, and the manner will not be presumed from the fact.
    Sneed, for the defendant in error.
    The court charged that a peaceable entry within the three years after majority, would save the right, and the statute would only begin from the eviction of lessor of plaintiff, but that a forcible or violent entry would not avail, &c.
    This charge, if erroneous, is so against the defendant in error. It is unnecessary to discuss the question as to whether a forcible entry would save the bar. The Judge below only allows a peaceable entry to have the same effect as “ suit effectually prosecuted.” The object of the suit is to get possession, and this being done by entry, the end of suit “effectually prosecuted” is attained. 5 Wheaton Rep., 116. The case is analagous to that of conflicting titles, and the younger claimant in possession of part of his title, but entitled to that on which he has his foot, and the elder claimant not in possession of any part of his claim. The possession of the younger claimant will go to his boundaries, and if allowed for seven years, will ripen his title, yet he cannot be sued. The only remedy is for the elder claimant to take possession of his land, on the part not disputed, and that stops the statute. 1 Humph., 163-167.
    The lessor of plaintiff and defendant were tenants in common. When she entered and had possession with defendant, within three years after majority, the possession was in accordance with her right, and the law adjudged the possession to be with the right. Being tenant in common, after entry she had no right to action, and the continuity of defendant’s possession, as against the right of plaintiffs lessor, was broken. This obviates all controversy as to possession of plaintiff’s lessor being exclusive, and the necessity of its being exclusive, to stop the operation of the statute.
    The saving in statute of 1715 and of 1819, as to the right of minor, &c., to sue within three years in the latter, and eight years in the former, is in principle as to the question before the court, nearly identical in phraseology. In both it is said, that if the minor, &c., “fail to take benefit of, and” sue, they shall be forever barred. In the act of 1715, the right to make entry is expressly given, and following it are the words, “fail to take benefit of and sue,” &c. In the act of 1819, the right to make entry by express language is omitted, but the words, “fail to take benefit of, and” sue, &c., are so used as evidently to apply only to an entry, which is the end of suit “effectually prosecuted.”
   McKinney, J.,

delivered the opinion of the court.

This was an action of ejectment in the circuit court of Claiborne. The bill of exceptions presents the following state of facts. John Gray, the father of the plaintiff’s lessor, (who departed this life about the year 1821,) was seized and possessed of the tract of land described in the declaration. By his last will and testament, he disposed of said tract of land to his wife, during widowhood; and upon her marriage’ then to be equally divided between her and all his children. About two years after the testator’s death, his widow intermarried with one Edmund Collins. In 1829, Collins, by deed in fee simple, conveyed said tract of land to one Nathan Perry; who, in like manner, in 1831, conveyed to Luke Perry; and the latter, on the 3d September, 1832, sold and conveyed the same to Norvell, the plaintiff in error, by deed purporting to convey an estate in fee simple, who has ever since held adverse possession of said tract of land.

This action was commenced by Lucy Ann Gray, one of the testator’s daughters, in December, 1844, and more than three years after she had arrived at the age of twenty-one years.

It appears, that within the period of three years after her majority, and during the temporary absence of Norvell beyond the limits of this State, the lessor of the plaintiff entered upon and took possession of part of the premises in dispute (the family of Norvell still continuing in possession, as before,) and so continued in possession until Norvell’s return, when he immediately caused her to be dispossessed by legal process.

The jury, under the charge of the court, found a verdict in favor of the lessor; upon which, judgment was rendered for one eighth part of the land described in the declaration. A new trial was refused, and the defendant below appealed in error to this court.

The error mainly relied upon in argument here, is in the following instruction of the court to the jury, namely: that “if within the period of three years after she, (the lessor of the plaintiff,) came of age, she got peaceably into possession of the land, and was afterwards turned out, she would not be barred until seven years from the time she was so turned out of possession.”

■This proposition, we think, is not law. It assumes/ one of two conclusions; either that the entry, under the circumstances had the effect to neutralize the adverse possession of Norvell, and arrest the operation of statute of limitations in totoj or, that it had, in law, all the effect of a “suit in law or equity effectually prosecuted.” Both of which conclusions are wholly erroneous, as applied to the facts of the particular case under consideration. And in case of an entry, by the mere act of the party, there are perhaps but two predicaments in reference to which the principle ■ asserted in the foregoing instruction would be at all correct. The first, where the possession was vacant at the time the entry was made; the second, where the person, previously in possession, by acquiesence or otherwise, so far recognized the possession and right of the individual making the entry, as to convert his own previous adverse possession into a possession subordinate to the title of the former.

In either of these cases, the effect would be to give the party full and exclusive seisin of the entire premises. And the seisin, or possession, being united with the right of prop-ert3r, his-, title would be complete. And such being the effect, there would be no .reason or necessity for putting the party making the entry to an action — if indeed it were possible in either case to maintain an action — for by the act of entry he would have acquired all that a suit' effectually prosecuted could have vested him with.

But in the case under our consideration, the entry of the lessor was only into part of the tract in dispute; it worked no ouster or change, either in point of law or fact, of the possession previously held by Norvell; it was not assented to, or acquiesced in by him; it was not a peaceable entry, in the legal sense; but on the contrary, was forcible, illegal, and therefore of no validity or effect for any purpose.

A peaceable entry, does'not mean one merely unaccompanied with actual violence, or broach of the peace. In law, every entry upon the soil of another; in the absence of a lawful authority, without the owner’s license, is a trespass. And it matters not that there was no actual force, for the law implies force, and damage likewise, in every unauthorized en • try, or trespass guare clausum fregit. 3 Bl. Com. 209; 1 Chitty Pl. 125.

It is clear also, that even if the lessor had entered by the consent of the wife or family of Norvell, in his absence, (the contrary of which, however, is indicated by the proof,) such entry would have been no less unauthorized, and no less forcible, in legal contemplation, because the wife or family had no power to give any such consent. But the illegal character of the entry is conclusively established by the fact disclosed in the proof, that the lessor was dispossessed by due process of law, set on foot by Norvell immediately upon his return home.

The entry being, therefore, illegal, was a nullity, and could have no effect to vest the lessor with a seisin of any part of the tract of land in controversy; neither could it have any effect upon the operation of the statute of limitations.

It is apparent, therefore, from, the foregoing view of the ease, that if the instruction of the court were admitted to be ■correct, it is wholly inapplicable to the facts of the case; and that the verdict, so far from being supported by the evidence, is in direct opposition to it. For this reason the judgment must be reversed. And here we might well enough leave the case.

But it has been suggested — and such must have been the view of the circuit Judge — that the right of entry, as it existed at common law, exists here; and that it should be allowed the same effect, under our statute of limitations of 1819, as under the act of 21, James 1, ch. 16 This is an erroneous conclusion.

An entry upon land, of which another, without any right has taken possession, is one of the methods ordained by the common law for the redress of private injuries, by the mere act of the party injured; of the same kind as the right of re-caption for injuries to personal property. 3 Bl. Com. 5. 175.

When one having no right had taken possession of the land or tenements of another, the legal owner might make a formal, but peaceable, entry therein, declaring that thereby he took possession, and this notorious act of ownership was deemed equivalent to a feudal investiture by the lord. Or, if deterred from entering by. menaces or force, he might make claim as near to the estate as practicable. And such claim, repeated once in the space of every year and a day, (which is called continual claim) had the same effect, in all respects, as a legal entry. Such an entry gave a seisin, or put into immediate possession him that had right of entry on the estate; and thereby made him capable of conveying the estate from himself, either by descent or purchase; and likewise prevented his right of possession from being barred: provided the entry were made within twenty years from the time the right accrued — that being the period‘limited by the act 21, James 1 — and provided also that, within one year after such entry, an action were commenced and prosecuted with eifect, as required by statute 4-5, Ann. chap. 16: 3 Bl. Com. 175, 178.

But this right of entry, by the act of the party, existed only in those cases of ouster where the possession had been unlawfully taken originally by the wrongdoer, as in abatement, intrusion, and diseisin. It did not exist in cases where the person in possession had entered lawfully, or had gained an apparent right of possession; as upon a discontinuance or de-forcement; in which cases the claimant was driven to a suit of entry, or other possessory remedy, to recover the possession. So likewise the claimant was put to his suit of entry if, upon a legal entry being actually made, the wrongdoer continued in possession. For as the claimant could not enter by force, neither could he, after a peaceable entry, by force, or strong hand put the wrongful possessor out: this by statute 5, Rich II, was an injury of both a civil and criminal nature.

From the foregoing principles, applicable to this species^,of private remedy, it is clear, that even if it existed in this state, it could not be resorted to in a case like the present; because the possession of Norvell was not unlawful. He entered into possession under a conveyance purporting to vest him with the fee simple' and was let in by one professing to hold in fee. He had acquired at least an apparent right of possession, and was placed fully within the scope and operation of the first section of the act of 1819.

But, be this as it may, we are of opinion that this mode of private redress, by entry — if it previously existed — under the statutes of limitation of 1715, and 1797, (a question upon which we need express no opinion) is taken away bv the express and positive terms of the act of 1819. The latter statute declares, that any person or persons who shall neglect, or who shall have neglected, for the said term of seven years, to avail themselves of the benefit of any title, legal or equitable, which he, she, or they may have to-any lands, tenements, or hereditaments, within this State, by suit in Jaw or equity, effectually prosecuted against the person or persons, so as aforesaid in possession, shall be forever barred.

Now, it is a universal principle in the construction of statutes of limitation, that the rights of all persons are barred unless they fall within some of the specific exceptions, or disabilities, expressly mentioned in the statute. The general words of the statute must receive a general construction; and cases falling within the letter, cannot be exempted from its operation by judicial construction. Angel on Lim., 204, 518. So far as the statute has omitted to make express exceptions, the courts can make none. It is equally well settled, that when the statute has once attached and begun to run, its operation cannot be suspended or arrested, except in the mode, or for the cause, expressly declared in the statute.

The act of 1819' — as we have seen — provides but one single method by which the bar of the statute may be suspended, namely: by a suit in law or equity, effectually prosecuted against the person or persons in possession. And neither by entry, nor in any other mode, can the operation of the statute be arrested.

We think the manifest design of the act of 1819, was to exclude the remedy by entry, as it existed at the common law. The statute was intended to preserve the peace and repose of the community. To put a stop to litigation respecting dormant titles, as well as to the struggles of individuals to redress their injuries by their own acts — a policy certainly not to be discouraged by the courts.

But, in holding that an entry, as a remedy to regain seisin of an estate, by the mere act of the pai'ty, cannot have the effect under the act of 1819, as at common law, we are not to be understood as intimating that an entry, by the rightful owner, upon lands adversely held, within seven years, if acquiesced in, will have no legal effect. Upon general principles, we think it may have the effect to give such owner a legal seisin, at least to such part of the land as he may be able to acquire the peaceable and exclusive possession of; and as against a wrongful possessor — although he may be in under an invalid or inferior assurance, purporting to convey an estate in fee simple — we incline to the opinion that, possibly, such entry would give the owner seisin, as far forth as the wrongful possessor had not actual possession. Both having an actual possession and occupation of different parts of the same tract, and each claiming an exclusive right, the one under a valid, and the other under an invalid title; which shall be regarded as having the possession of such part of the tract as may not be actually occupied by either? Will not the law, in such case, as in other cases of a mixed or concurrent possession, adjudge the seisin to be according to the title, as far as there exists no actual adverse possession? But in the case put, it is clear, that as such entry of the legal owner would be no ouster of the actual possession of the wrongdoer, it could not have the effect to neutralize such adverse possession, or to suspend the operation of the statute of limitations, as to the part actually occupied by the wrongful possessor.

The judgment will be reversed, and the cause be remanded for a new trial.  