
    The Lessee of Ransom Bronson v. Benoni Adams.
    Where the rights of two coparceners to a part of an estate are barred ,by an adverse possession and the same part in a partition of the whole estate is alloted to another coparcener, who is within the saying clause of the act of limitations, the latter can hold only his original share in the part so alloted to him.
    The right to sue for real estate saved by the provisos in the act of limitations is personal, and is no protection to others.
    This is an action of ejectment, on an agreed state of facts, from the county of Lorain.
    
      Azor Bronson was once seized of an undivided fifth of a tract of land, of which lots 11 and 14, now in controversy, were a part.
    He died in 1811, and the undivided fifth descended to his three sons, of whom the plaintiff is one.
    In 1825, his two brothers brought their petition for partition of the entire tract against “owners unknown.” The plaintiff joined in partition, and in 1827, the partition was made, aparting the lots 11 and 14 to the plaintiff as his share of the one-fifth which descended from their father.
    The defendant has held adverse possession of the lots since 1812, and is protected by the statute of limitations, unless the plaintiff is within its provisos.
    The plaintiff arrived at full age in 1826.
    136] *C. Stetson, for the plaintiff:
    The plaintiff inherited from his father a third of the undivided fifth, and there is no pretention that his right is barred by the act of limitations. He is therefore entitled to his third somewhere out of the fifth. By the partition, his share was located on lots 11 and 14, and the defendant being virtually a party to the pro ceedings, can not now call in question the plaintiff’s right to recover the whole of those lots.
    S. J. Andrews, for the defendant:
    The right of the plaintiff to one-fifteenth is not questioned.
    In 1812, when the defendant entered, the plaintiff was an infant, but his two co-heirs were of full age, The plaintiff was protected by his disability, but that disability does not save the rights of others. Thomas v. Machir, 4 Bibb, 412; Sanford v. Bretton, 4 Day, 310; Doolittle v. Blakeslee, 4 Day, 265; Dougal v. Cowles, 5 Day, 511; McIntire v. Funk, 5 Litt. 34; Roe v. Rowlston, 2 Taunt. 441; McClung v. Ross, 5 Wheat. 124; Kennedy v. Duncan, Hardin, 365.
    The proceedings in partition did not vary the rights of the defendant. His adverse possession commenced in 1812, and has ripened into a perfect ti le. When an adverse possession begins to run in the lifetime of the ancestor, and the land descends to an infant heir, the latter is not protected by his disability. Granger v. Granger, 6 Ohio, 35; Peck v. Randall, 1 Johns. 42; Jackson v. Colden, 13 Johns. 513; Livingston v. Robbins, 15 Johns. 169. So, where the plaintiff, before his right was barred, and during the adverse possession of the defendant, recovered judgment in ejectment, but neglected to issue a writ of possession until the time of limitation had expired, it was held that his claim was barred. Jackson v. Haviland, 13 Johns. 229. A judgment in partition has no effect on the right of property. Pierce v. Oliver, 13 Mass. 211.
   Lane, C. J.

It is not doubted that the plaintiff may recover from the defendant one-fifteenth of the two lots, being his original share, as the suit was brought within the time saved *after [137 the disability was removed. But the plaintiff claims that the effect of the proceedings in partition is such as to interrupt the possessory right, and extends the protection of minority to what ever land he may lawfully claim in the tract.

We can not admit the soundness of this position. Adams was in possession, the statute was running in his favor, and cut off the right of action belonging to the two eldest sons. The right of the younger was preserved by his minority. We have just decided that this privilege was personal only, and did not protect the others. Moore et al. V. Armstrong et al., ante, 11. The three heirs held a right in common in the lots, which the defendant occupied, and the statute extinguished the claims of two. The two could not evade this consequence by a sale to the third, or by any other act of theirs, for the statute had cut off their right of action.

The verdict is reduced to one-fifteenth.

Judgment for the plaintiff.  