
    Dunlap vs. Gibbs and others.
    
    An alleSat!°“ *n a bill that the complainant purchased the land, implies that it was for'a valuable consideration, and will be sufficient upon a demurrer to the bill.
    A demurrer will lie to a bill in equity, if it appear upon the face of it that the complainant has not sued within the time limited by the statute of limitations.
    A land warrant is an hereditament, within the meaning of the act of limitations of 1819, ch. 28, sec. 2, and must be sued for within seven years from the time the defendant obtained possession and appropriated it to his own use,' or the complainant’s claim will be barred.
    The term “lands, tenements and hereditaments,” used in the second section of the act of limitations of 1819, (ch. 2S) comprehends equitable as well as legal estates.
    The bill in this case was filed on the 10th day of June, 1829, and charges, that the State of North Carolina granted to Martin Armstrong, on the 14th day of December, 1793, by grant number 384, five thousand acres of land; that complainant purchased the land of said Armstrong on the 19th April, 1794, for which a deed of conveyance is exhibited; that on the compromise between the States of Kentucky and Tennessee as to the north boundary line of the State of Tennessee, it was found that the said five thousand acres of land was situated north of said line, and in the State of Kentucky; that by the laws of the State of Tennessee, the commissioners authorized to adjudicate upon the North Carolina land warrants, were authorized to issue warrants to all those whose lands were found to lie north of said line. The bill further avers that John M’Nairy procured a certificate warrant to issue to him for the 5000 acres of land, by the board of commissioners for West Tennessee, No. 1785, dated the 12th day of October, 1820; that the certificate warrant issued to M’Nairy by virtue of some title that he set up to the land; that the land for which the certificate issued was the same that was sold by Armstrong to complainant, , • , , „ , „ ,. n,, . and was situated north of the State line, ihat M JNai-ry had the warrant located upon 5000 acres of land in the Western District of Tennessee, on the 15th day of December, 1820, and that a grant issued on the location on the 12th day of March, 1823, to M’Nairy for the land. That after the issuance of the grant, M’Nairy conveyed said tract of land to Gibbs; that Gibbs conveyed to Dibrell and Puckett, and that Gibbs, Dibrell and Puckett knew of the complainant’s claim to the land. The bill prays that the defendants may be divested of the title to said land, and that the - same be vested in complainant. The defendants demurred to the bill, the chancery court sustained the demurrer and dismissed the bill, from which decree the complainant appealed to this court.
    
      Wm. C. Dunlap, for complainant.
    A land warrant is not a hereditament within the act of 1819, ch. 28, sec. 2, and therefore a suit for the land held under it is not barred. It is a mere equity to which the statute does not apply. Danforth vs. Lowry and Waugh, 3 Hay. Rep.
    P. M. Miller and J. S. Yerger, for defendants.
    1. The act of 1819, chap. 2S, sec. 2, applies. The land warrant is a hereditament, if nothing more; and the right to sue for it was barred in seven years from its appropriation by. the act. 2 Blac. Com. 17: 1 Thomas’ Coke, 219: 3 Kent’s Co. 322.
    2. A demurrer to a bill will lie because not filed within the time limited by the statute of limitations. Black. Rep. 110, 111: 1 Vernon, 474: Foster vs. Hodgson, 19 Ves. 180.
   Catron, Ch. J.

delivered the opinion of the court.

The first ground of demurrer insisted on is, that sufficient does not appear upon the face of the bill to show the better right in Dunlap. We think it shows the title to the warrant to have been in Dunlap, and that he would be entitled to a decree for the land if no other objection stood in iiis way.

The next ground of demurrer relied upon is, that the statute of limitations of 1819, ch. 28, sec. 2, had barred Dunlap’s right to sue in equity; and that the facts distinctly appearing upon the face of the bill, can as well be taken advantage of by demurrer as by plea. We take the settled rule of chancery pleading to be, that if by the lapse of time no right of action exists in the complainant from his own showing, this may be taken advantage of upon demurrer; indeed a plea would seem idle, because it could only allege the same facts stated on the face of the bill, and if it were replied to might be proved by reference to the complainant’s statement. Foster vs. Hodgson: 19 Vesey, 182: Coster vs. Murray: 5 John. Ch. Rep. 522.

A demurrer would seem peculiarly appropriate to a bill seeking to recover lands, tenements, or hereditaments, where time had operated to destroy the title as well as to defeat the remedy.

In this case more than seven years had elapsed after the warrant issued, and after the entry was made thereon before the bill was filed, but not between the emanation of the grant and the commencement of the suit. Under these circumstances is Dunlap’s right of recovery barred by the second section of the act of 1819, “for quieting the citizens of this State in their possessions, and to prevent litigation.”

The act provides, “ that no person or persons, or their heirs; shall have, sue or maintain any action or suit, either in law or equity, for any lands, tenements or heredit-aments, but within seven years next after his, her, or then-right to commence, have, or maintain such suit shall have come, fallen or accrued; and that all suits either in law or equity for the recovery of any lands, tenements, or hereditaments, shall be commenced, had and sued within seven years next after the title or cause of action or suit accrued or fallen, and at no time after said seven years -i 111 , ,, ' shall have passed.

Is a warrant or entry of the description of property not subject to be sued for, if the time to form the bar has elapsed? The term lands.and tenements will apply to the entry, but the word hereditaments is of a much more comprehensive import than either, including not only lands and tenements, but whatsoever may be inherited, be it corporeal, real, personal or mixed. 1 Inst. 6: 2 Blac. Co. 17. A land warrant is the subject of inheritance, and therefore as well as an entry made by virtue thereof, protected by the statute, if not sued for within seyen years next after converted, so that a right to sue for, and recover the same, at law, or in equity, has accrued to the true owner.

The second section was intended to prevent litigation,” within the words of the caption of the act; and refers to the time when the complainant had first a right and power to sue, as that from which the formation of the bar commences. The statute does not contemplate adverse possession in the defendant, unless it be in a case where the taking of possession gives cause of action not otherwise existing.

When had Hugh Dunlap a right of action in equity against John M’Nairy? So soon as the latter obtained the 5000 acre warrant and appropriated it to his own use. This was done in 1820, more than seven years before the suit was brought. Dunlap, therefore, by his own showing, was prohibited from suing in 1829: and the bill must be dismissed.

In opposition to this construction, it is insisted on the part of complainant, that the terms lands, tenements or hereditaments, only refer to and bar the recovery of the legal estate: that until the grant issued, M’Nairy had no title recognized by the statute of 1819. To sustain this position, the cause of Danforth vs. Lowry and Waugh, in 3 Haywood’s Rep. is relied upon.

The case cited has been unsatisfactory as an authority ^ C0nstruC£¡0J10f t¡ie statute of frauds, even in reference to tire occupant claims south of French Broad and Holston: and the loose assertion, that the statute had no application to equitable titles, because not within the description of lands, tenements or hereditaments, is at variance with the best settled definitions of the foregoing legal terms, and not sound, as was decided by this court in Newnan vs. Whiteside and others, at Nashville, in 1832. This court does not doubt the true meaning of the terms; and the definition affixed to them by the Legislature, is to be found in Coke and Blackstone.

Bill dismissed.  