
    Guion’s lessee vs. Bradley Academy et al.
    
    Under the acts of limitation of 1715 and 1797, cumulative disabilities are not allowed.
    Where possession of land .was taken during the lifetime of the plaintiff’s mother, whilst he was an infant, and continued an infant until a short period before the suit was brought, the father and mother having died eight or ten years before; it was held, that the disability of infancy could not be added to that of coverture, to save the bar of the statute.
    In this case, the plaintiff, Guión, claims the land in controversy, by descent from Henry Winborne, his grand father in the maternal line.
    The record shows, that a grant for the land issued to Henry Winborne on the 7th day of March, 1784. Win-borne, the grantee, died on the 11th day of February 1795, leaving an only child, Elizabeth Winborne, then two or three years old.
    In the spring of 1808, Elizabeth Winborne intermarried with John Guión, plaintiff’s father, she being then a few days over 16 years old; and on the 21st of February 1810, she gavebirth to the plaintiff. On the 10th of January, 1815, she died, leaving the plaintiff her only child, her husband being still alive.
    The plaintiff was of lawful age on the 21st of February 1831, and commenced his suit in March of the same year.
    To repel the plaintiff’s right to a recovery, it is proved that the defendant, Burton, took possession of the land in controversy, on the 1st day of January 1815, under a deed of partition between the heirs of Hardy Murfree, deceased, the same being assigned in that division to Lavinia B. one of the heirs of Hardy Murfree, who afterwards became the wife of Burton; and that he (Burton) or those claiming under him, have been in uninterrupted possession ever since, up to the bringing the suit. •
    To show a legal title in Hardy Murfree, two papers were read as evidence to the jury, purporting to be copies of an original paper executed by Henry Winborne to Hardy Murfree, one of which was found, as was proved by Matthias B. Murfree, a witness for defendants, at the death of Hardy Murfree, amongst his papers, in his own hand writing; and the other one, as proved by the same witness, was found at the death of William H. Murfree, who was the son of Hardy Murfree, deceased, amongst his papers, in his own hand writing; both of which papers are in the words and figures following, to wit: “I, Henry Winborne do hereby empower and authorize Hardy Mur-free to receive the grant, and have laid off, all that tract of three hundred and eighty nine acres of land, which I am entitled to by act of General Assembly of this state, in consequence of my having served in the North Carolina continental service, in the service of this State and in the service of the United States; he having purchased the same from me, and paid me satisfaction in full therefor. The entry taker is therefore reqüested to issue the grant, and the surveyor is also requested to lay the same off for him, in the same manner as for myself, was I in person to make application. I do farther warrant and defend the right and title of the said land from me and my heirs and assigns, to the said Hardy Murfree, his heirs and assigns forever. Given under my hand and seal, this 24th day of March 1784, in Hertford in this State.
    Henry Winborne, (Seal.)
    
    
      Attest, Anias Randall, William Outlaw.”
    Then follow certificates of probate and registration in Hertford county, North Carolina.
    Matthias B. Murfree stated, he thought said paper was a true copy of an original which he had seen, and had himself delivered to the defendant in 1817. But he stated he had never examined and compared it with the original, and spoke of its resemblance to the original from his general recollection. He also stated that he was acquainted with the hand writing of Dickinson, the clerk of Hertford county, N. C. and the certificate of probate on the original which he saw, was in his hand writing.
    
      There was no other paper produced by the defendant to prove that Henry Winborne had ever conveyed the lan(j jn dispute to Hardy Murfree.
    Samuel Anderson proved, that at the time he purchased a part of the land, covered-by the Winborne grant, from Burton, he saw a paper in Burton’s possession, and had it in his own possession, which he believes was to the purport of the above paper; and that he remembered the certificates to it were in a different hand writing from the body of it.
    To the reading of these papers, or either of them, to the jury as evidence, the plaintiff objected; but the court overruled the objection, and permitted them both to be read.
    The circuit court charged the jury, that “it was not ne'cessary for the defendants to produce a deed itself from Winborne, the grantee, to Murfree, provided they believed from the circumstances, that Winborne had conveyed the land to Murfree, by deed.”
    The circuit court also charged the jury, “If the defendant, Burton, in the lifetime of the plaintiff's mother, took possession of the land in dispute, under color of title, and continued in possession without interruption for seven years, that then the plaintiff would be barred, unless his mother was a feme covert at the time Burton so took possession; in which event the statute would not run during the coverture; but upon the determination of that disability, the plaintiff must bring his suit within three years after her death, provided defendant had been in possession seven years, notwithstanding he was himself an infant; and if he failed to do so, and the defendant continued in possession for seven years, the plaintiff would be barred. That cumulative disabilities in the person of the plaintiff, he not having the right or legal title when the cause of action arose, would not take the case out of the statute.”
    The jury found a verdict for the defendants. The plaintiff filed his bill of exceptions to the opinion of the 1 . , . . , b, r , . court m admitting the papers above set out, to be read as evidence to the jury, and to the charge of the court.
    
      C. Ready for the plaintiff in error.
    The first question that presents itself, is upon the admissibility, as evidence, of the papers above set out.
    Before a copy of a deed can be read as evidence, it must be shown that the deed existed as a genuine instrument; then, upon sufficient proof being made of its loss, of which the court are to judge, the copy may be read. 1 Starlde on Ev. 354: Goodin vs. Lake, 1 Atkyns, 246.
    The copy of a deed, when produced as evidence, must be proved by a witness who compared it with the original; for there is no proof of the truth of the copy, or that it hath any relation to the deed, unless there be somebody to prove its comparison with the original. Gilbert’s Ev. 96: 1 Starlde on Ev. 355: Smith vs. Carrington, 4 Cranch, 70: Strange, 401, 526.
    A copy, to be received as evidence in our courts, must be proved to be an office paper, duly certified by the proper officer. If it be a private paper, no length of time will authorize the reading of it. Pen’s lessee, vs. Hartman, 2 Dallas 230.
    A deed cannot be read as evidence, without it be proved or acknowledged, and registered. The act of 1715, ch. 38, sec. 5, declares, that no conveyance for land, in what form soever drawn, shall be available in law, unless it be acknowledged, or proved and registered.
    A legal title for land is not complete for any purpose, unless the deed has been proved or acknowledged and registered. In fact, it is no deed until these requisitions are complied with; and presumption from length of time -cannot arise, nor can secondary evidence be received respecting that which never did exist. When a deed has been registered, then proof of its loss will authorize the reading a copy. Stinson’s lessee vs. Russell, 2 Ten. 48: Miller’s lessee vs. Holt, 1 Ten. 112.
    
      ^he principle, upon which copies of deeds conveying an estate in lands are permitted to he used as evidence of the original, does not apply here. In England patents not registered. Here they are. 2 Wash. 281. Our registration laws place such instruments upon an entirely different footing.
    There are no general registration laws in England; hut such instruments as are there required to he enrolled, can only he proved hy the original, or a certified copy. 6 Mod. Rep. 248: Vickery vs. Farthing, Cro. Eliz. 411.
    
    If the original paper, purporting to be a conveyance from Winhorne to Murfree, had been registered in North Carolina, that would not entitle it to have been read as evidence in this suit, if the original itself had been produced. It should have been registered in the county where the land lies, which was never done. Statute 1715, ch. 38, sec. 5.
    Then if the original, if produced, could not have been read, much less could a paper, even if it were properly proved to be a copy of the original, be read as evidence in the cause.
    If the paper referred to, be placed upon the footing of a memorandum found amongst Hardy Murfree’s papers, it cannot as such, be read as evidence on which to ground the presumption of a deed. Lessee of Galloway vs. Ogle, 2 Binney, 468. It would be permitting a party to make evidence for himself, which cannot be allowed." 1 Dallas, 18.
    If the original had been produced properly aulhenticar ted, it could not have been read as evidence of the conveyance of a legal title from Winborne to Murfree* It would convey nothing more than an equitable title; and the party claiming under it would have to resort to a court of equity to obtain a decree for a legal title.
    The second question arising from the record is, was the circuit court correct in charging the jury that it was not necessary for the defendants to produce a deed from Win-borne, the grantee, to Hardy Murfree, provided they were satisfied from the circumstances, that one had been ese-cuted. It is believed not. .
    Before any kind of secondary evidence of a deed is resorted to, the absence of the deed must be accounted for; then a certified office copy may be read; and if the record of it has been destroyed by fire, or the act of God, &c. then other proof of its execution may be resorted to.
    In this case it was not shown that a record was ever made of any deed; much less that the public record of it has been destroyed.
    If the charge of the circuit court upon this point be correct, it would lead into the unlimited field of presumptions, by which the absence of deeds cannot be supplied in thig country.
    The doctrine of presumption, as in use in England, cannot apply here. If it did, our registration laws would be useless, and a mere dead letter.
    But if the doctrine of presumptions applies in any case, a deed cannot be presumed, when the party who asks the court to presume, shows the court himself, that no deed ever did exist.
    The presumption of a deed, like every other presumption, may be rebutted, and is removed the moment any fact appears, which goes to show no deed ever did exist.
    Here ‘the defendants produce the paper which they say is a copy of tire conveyance executed by Winborne, the grantee, to Murfree, defendant Burton’s ancestor; which being no deed, the conclusion is irresistible that none ever was executed.
    The third and main question in the cause arises upon the statute of limitations.
    Was the circuit court correct in the charge delivered to the jury, in relation to the effect of seven' years possession by the defendant Burton, and to the time in which the plaintiff was bound to sue? It is believed not.
    
      <luest*011 must depend upon the construction to be given to the act of 1715, ch. 27, sec. 3 and 4.
    The plaintiff’s title accrued and was vested in him previous to the passage of the statute of 1819, and consequently it cannot operate. If it did it would be retrospective, which is contrary to the letter and spirit of the declaration of rights, sec. 20.
    In relation to the effect the repeal of a law has "upon rights that have vested under the repealed law, see Fletcher vs. Peck, 6 Cranch 88: 2 Cond. Rep. 308.
    It will not be a good answer to this to say, that the statute of limitations operates on the remedy and not upon the right, as is intimated in the case of Coleson vs. Blanton, 3 Hay. 152, which was an action to recover personal property.
    When-the statute operates so as to bar, the legal title which was before in another is transferred to and becomes vested in the possessor, as decided in Ferguson and others vs. Kennedy, (Peck’s Rep. 324,) and is therefore clearly an operation upon the right.
    According to the statute of 1715, ch. 27, sec. 3, no person or persons, nor their heirs, who have any right or title to any land, &c. shall thereunto enter or make claim, but within seven years next after his, her or their right or title, which descended or accrued. And by the 4th sec. it is provided, that if any person or persons, that is or hereafter shall be entitled to any right or claim of lands, &c. shall be, at the time said right or title first descended, accrued, -come or fallen, within the age of 21 years, feme covert, non compos mentis, &c. that then such person or persons shall and may, notwithstanding the said seven years be expired, commence his, her or their suit, &c. as he, she or they might have done before this act, so as such person or persons shall, within three years next after full age, &c. take benefit, and sue for the same, and at no time thereafter, &c.
    At the time Burton took possession of the land in controversy, Mrs. Guión, the mother of the plaintiff, and in whom the title then was, was a feme covert, and could not sue. The statute could not therefore run against her, she being within its provisions.
    At the death of Mrs. Guión, she being still a feme covert, the estate descended to the plaintiff, who was within twenty one years of age, and so continued until the 21st of February, 1831, during which time the statute could not run against him any more than against his mother, he being within 21 years of age when his right or title first descended or accrued to him; and his suit was commenced the month after he came of lawful age.
    The saving in the statute in favor of infants, &c. must refer to the time when the right or title first descended or accrued to the infant in whose favor the saving was made; and not to the time when the right or title came, descended or accrued to the ancestor of the infant.
    Some period-must be fixed on, after the death of Mrs. Guión, when the statute commenced running; and it is a principle of the common law, that an infant or person disabled from suing, shall not be charged with laches, or injured for not suing, as long as the disability continues; and in the construction of the statute, the common law principle is recognized and pursued. Davis vs. Cook, 3 Hawkes, 608.
    The common law ought to be regarded in the construction of a statute. 6 Bacon Ab. Statute 1.4.
    The reasonable and obvious construction of the statute of 1715 is in favor of the plaintiff; and every statute ought to receive a reasonable construction, so that the existing rights of the public or of individuals be not infringed. 6 Bacon Ab. Statute, I. 10.
    The best construction of a statute is to construe it as near to the rule and reason of the common law as maybe. 6 Bacon, Statute, 1. 4: Miles vs. Williams, 1 P. Wms. 252: Stowell vs. Zouch, Plow. 365: 2 Inst. 148, 301. 1 Saunders 240.
    
      ^ consí;ructioi:i °f statutes, usage is a j.ust rule to be governed by, wherever .the terms of the ■ statute are dubious. 6 Bacon Ab. Statute I. 10: Rogers vs. Goodwin, 2 Mass. Rep. 275: Stuart vs. Laird, 1 Cond. Rep. 316: King vs. Hog, 1 Term Rep. 728.
    If there is any usage in relation to the construction of the statute of 1715, it is in favor of the plaintiff. Wilson vs. Kilcannon, 4 Hay. 136: Davis vs. Cock, 3 Hawkes, 608.
    The Legislature did not intend to require any thing unreasonable or impossible, of infants; but if a different construction than that here contended for, should be given to the statute of 1715, an infant would be required to exercise more vigilance than a feme covert of full age, which would be unreasonable.
    The death of the mother was by the act of God, which shall not operate to the injury of any one.
    If the mother of the plaintiff had'lived until this time, the statute would not have run against her; and if she had lived until the plaintiff came of age, and then died, he would not have been barred, having brought his suit within three years after arriving at lawful age.
    The clause in the statute of limitations of 1819, disallowing cumulative disabilities, is evidence that the Legislature did not consider them prohibited under the statute of 1715.
    That the disability of the plaintiff supervening after the death of his mother, Burton being in possession at the death of the mother, does not prevent the saving in the statute of 1715 from operating in his favor, see Wilson vs. Kilcannon and others, 4 Hay. 186: Cotterell vs. Dutton, 4 Taunton, 826: Davis vs. Cook, 3 Hawkes, 608: 2 Vernon, 377, Proctor and others vs. Cowper.
    The construction given, to the statute of 21 Jas. I. is no argument to prove that our statute of 1715 ought to be construed to have the same effect with regard to cumulative disabilities. There is but very little resemblance between the two statutes. Our statute is couched in near- /• i . TT \ ly the same language oi the statute ot hues, (4 Henry 7,) and if the disallowance of cumulative disabilities under the statute of James, according to the reports in some the hooks, proves anything, it is that they ought to he allowed under our statute of 1715. See Doe on the demise of George and Francis his wife vs. Jesson, 6 East 80.
    
      J. 8. Yerger, for the defendants in error.
    The only question that is necessary to be examined upon the part of the defendants in error, is that arising upon the statute of limitations.
    The mother of the lessor of the plaintiff died on the 10th of January, 1815, after Burton had taken possession of the land under his decree of partition. She was of full age at the time Burton took possesson, but covert, and continued covert until her death. At the time of her death the lessor of the plaintiff was an infant, and so continued until within three years before the commencement of this suit. The lessor of the plaintiff contends that he was not bound to sue until his arriving at full age and three years afterwards; that when the title descended to him, he was a minor, and not capable of suing, and though embraced by the words of the statutes of Limitations of 1715 and 1797, is saved by the provisos in favor of infants, femes covert, &c. and that therefore, the charge of the court below is incorrect, and should be reversed.
    For the defendants in error it is insisted, that the statutes of limitations protected the title of the mother of the lessor of the plaintiff, during her coverture, and for three years after her discoverture, or death, and does not extend to protect the heir. No cumulative disabilities are allowed under our statutes of limitations. They have not been allowed under the English statutes, nor under the New-York statutes, of which our statutes in their provisions are almost literal copies. Under similar statutes in these countl^es3 &e provisions in favor of infants, feme coverts, &c. have been held to extend to disabilities in the first taker, not in the second. To allow intermediate or cu-initiative disabilities to be engrafted upon our statutes, would be in violation of the Legislative intention, and against the best policy of this country, as may be seen by a reference to their interpretation, as given by our LegislatuTe in the act of 1819, ch. 28, in which.the allowance of any cumulative or supervening disability is denied and forbid.
    To introduce savings, other than those expressly embraced^by the statutes in their proviso, would be to fritter them away, and disturb many of the titles in the country, to protect which these statutes have been passed. These disabilities may continue for two centuries, and more in many cases, and would place the landed proprietors in constant jeopardy. Such an interpretation of the exceptions in the statutes, as is contended for by the plaintiff in error, would be fraught with the most ruinous consequences to the country'. The proviso in the statute by its very words, only intends to save the claim of the first laker who was under a disability when his title accrued, but who would have been barred by the general words of the statutes. When the disability of the first taker is removed, the statutes commence to run, and when once it starfá", no supervening or cumulative disability resting in the person of the second taker, can stay its race. This is the literal exposition of the statute. The proviso has embraced every case intended to be saved by the Legislature, and to construe a case within it, would be a species of judicial Legislation, as preposterous to common sense as it is dangerous to the country, and unauthorized by the law. The statute leaves nothing for construction or presumption to operate upon; it has spoken for itself, and if its terms were ambiguous, constructions so dangerous to the peace and quiet of the country would not be resorted to. Such has been the prevailing construction upon the English and American statutes, whenever they have come up for consideration before the courts. 6 East Rep. 80: 2 Henry Bla. Rep. 584: 4 Ter. Rep. 300: 2 Vernon, 540: 18 John. Rep. 40: 15 John Rep. 169: 13 John. Rep. 513: 3 John. Ch. Rep. 129: 4 Mass. Rep. 182: Adams on Ejec. 59: 2 Connect. Rep. 27: 3 Connect. Rep. 234’ 7 Serg. and Rawle’s R. 209: 5 Cowan’s R. 95, 101,105: 2Littell’s Rep. 114: Angel on Lim. 148, 152, 156.
    Again, the act of 1819, ch. 28, applies to this case, and bars the title of the lessors of the plaintiff. That act expressly declares that no cumulative disabilities shall be allowed; and that persons whose right to sue has accrued, and who are not saved in the act, shall commence suit or be barred. The right of the lessor of the plaintiff had accrued at the passage of the act, and the act not allowing him the benefit of a cumulative disability, he was compelled to sue within seven years after its passage, or be barred. The statute is constitutional; it only operates upon the remedy, and the time within which that remedy must be sought. If the act had introduced no saving for the benefit of infants, &c. it would still have been constitutional, because the Legislature did not impair any right, but only limited the time in which that right must be enforced or be barred. 2 Scott’s Revised Laws, 482: 5 Peter’s Rep. 457: 1 Paine’s Rep. 570.
    
      F. B. Fogg, argued on the same side.
    
      J. Rucks, in reply.
    The act of 1715, chapter 27, section 3, requires all persons having claim to lands to enter or sue within seven years next after the right first accrued, or be forever barred.
    Section three provides, that if any person shall be an infant, feme covert, non compos, imprisoned, or beyond seas, at the time the right first accrued or falls, such person may, notwithstanding the seven years be expiredj make entl7 or commence suit, as he, she or they might have done before this act; so that such person, shall, within three years next after full age, discoverture, &c. sue for the same, and at no time after the times and limitations herein specified.
    Did the statute begin to run against Elizabeth Guión, the feme covert ?
    It is insisted that this is answered by the statute itself, to wit, if she be a feme covert at the time the action accrues to her, she may, notwithstanding the seven years be expired, commence her suit as she might have done before this act passed. This provision places her precisely upon the ground she occupied before the act; it leaves her as if there were no statute of limitation in existence. The Legislature then go on to make a separate provision for this class of persons, to wit, that' where there has been'seven years adverse possession, they shall sue within three years next after discoverture, full age, &c.
    The statute did not begin to run against Elizabeth Guión; for if she had remained covert forty years, she would not have been barred.
    The most prominent object of the Legislature was to give such disabled persons a fixed and limited time after the disability removed, to bring their actions; and it is this time, to wit, the three years that runs against them and bars the right.
    If the statute did not begin to run against her on the 1st of January, 1815, when did it begin to run? At her death, against her infant son five years old? Surely not.
    It is admitted, and has never been disputed since the case of Stowel vs. Zouch, in Plowden, that when the statute begins to run, nothing stops it; it will run out.
    It will also be admitted, it did not begin to run against Mrs. Guión, for then she would have 'been barred, had she lived seven years.
    The question then is, when did it begin to run? At what particular moment of time shall we date its com-meñcement? We can no more fix the moment of her death, than any period of her life; the law then cast the inheritance upon an infant, who is placed by the statute upon a perfect equality with his mother, and within the same principle of protection.
    If it is argued that the saving to the feme covert is personal, and does not extend to the heir, we answer, it was the object of the Legislature to protect and save the right and not to obstruct descents.
    If there had been a class of rights pertaining only to femes covert, infants, idiots, persons imprisoned, &c. the Legislature would have made no statute of limitations as to those rights while the disabilities existed. They show plainly that the right shall not be lost, notwithstanding seven years adverse possession may have expired, untü three years have elapsed in which there is no disability.
    It is the three years that bars the right, the defendant being in a situation to plead it, and the statute does not begin to run against these rights until the disabilities are removed.
    This is the plain, intelligent object of the Legislature. For though they wished on the one hand to quiet possessions and prevent litigation, as to those who were in a condition to assert their claims; they were equally careful, on the other, that children, married women, idiots, &c. should not be prejudiced until the disabilities were removed.
    They were legislating upon the disability, and not upon the person. Therefore, if a right accrues to a married woman, her heir may 'sue within three years after her death; and must do so if of mature age. So if a right of action accrues to A, a minor one year old, who dies at ten, and the land descends to his uncle of full age, the uncle must sue within three years; but if the land had descended to the younger brother of A, he shall not be compelled to sue within the three years. In this case A himself, had yet fourteen years; his heir shall not have the same time, but shall' be governed by his own condition; and the same construction and reason which compels the adult uncle to sue in three years, extends to the younger brother the sanie time after his disability is removed. And this is the obvious intent of the Legislature, for every motive which induced them to protect the disabled person, would require them to continue the protection as long as the disability existed; they therefore extended to such persons three years after the disabilities are removed; which brings the act to this, that all persons shall sue within seven years.
    But this shall not embrace infants, feme coverts, idiots, &c. They shall have three years after the disabilities are removed. These are the limitations specified, and shall be a perfect bar against all manner of persons.
    It is doing violence to the statute to say the Legislature intended to bar the very rights they are protecting, and during the very time for which they are protecting them.
    It is also doing violence to their intention to^say that such rights shall be barred before any one is in a condition to assert them; for they intended to give to all disabled persons and their heirs, a right for three years to bring the suit, after all impediment was removed.
    This is the construction which the common law would put upon the act.
    In 2 Plow. 364, the cases are collected in which infants are protected, though within the general words of a statute; and it is laid down “if an act of parliament enjoin the doing of any thing which requires sound and perfect reason in the execution of it, as the prosecuting of suits does, the makers of the act did not intend it to be done by those who have no perfect reason; for if so, the law would be utterly against reason, for to insist that an infant or man of unsound mind who have no reason, but live in invincible ignorance, shall use reason, or else shall lose their inheritance, would be very unreasonable, which is never to be presumed in the Legislature.
    Coke Lit. 246, b. after stating the case of a woman being disseized, then marrying under age, and having a rightto enter after the death of her husband, takes this diversity in the common law, that though no laches is accounted to infants and feme coverts for not entering or making claim to avoid descents, yet laches shall be accounted to them for the non-performance of conditions annexed to the estate in the land.
    The common law reserves to itself the exposition of statutes. 6 Bac. A. 383, and cases. It is impossible to look into the authorities upon this subject without feeling bound to extend the protection in the statute as far as the disability goes, even were the words more doubtful than they are.
    And this has been the settled and uniform construction of the statute, for more than one hundred years; for which we have the authority of judges Badger, Hall, Taylor and Henderson, in Davis vs. Cooke, (3 Hawk. R. 608,) which was a personal action, and as to which the saving in the statute is not so strongly expressed, nor so carefully guarded, as in the case of lands. In the case of Wilson vs. Kilcannon, (4 Hay. 186,) our own supreme court say, “if the disability of infancy is not determined before that of coverture commenced, she is within the benefit of the saving exception in favor of femes covert and infants. Being equally disabled in both instances, she ought equally to be excused in each, for not suing during the time of their continuance, &c.” It might perhaps be made a solemn question whether this court could change the law and establish a different rule from that which has heretofore prevailed.
    But I will insist that this court will not lightly disturb a rule of construction which has become a rule of property. Chan. Kent, (16 John. 402,) says, “such rules become land-marks, and ought to be preserved like ancient monuments or immemorial boundaries to land. There would be no safety in the transfer of property without an adherence to these rules. It is by their stability and notoriety that people can with confidence buy and sell, and deal with each other. ”
    But it is said the construction is different upon 21 James I. Answer: that is no reason for changing our decisions, even if the two statutes were the same. But they are materially and essentially different.
    By the statute of James, infants, femes covert, &c. are not taken out of the purview of the act and put upon the same ground as if no statute of limitation had passed; nor does that statute make a separate and distinct provision for that class of cases as in ours, and then conclude that all actions shall be brought within the times so limited; making positive provision for the two classes, to wit, three years for the disabled, and seven years for all others. It provides that all writs of forme-dan, &c. shall be brought within twenty years after the cause of action first fallen. That if any person at the time the cause of action first accrues, shall be an infant, feme covert, &c. such person or his heirs may sue within ten years after full age, discoverture, &c. or death.
    It is impossible that the decisions upon the statute of James should form the rule for our construction, even if it were now taken up de novo.
    
    But I can find no case in the English courts, even upon their statute, deciding that an infant heir shall be barred of a right which accrued to his mother while covert.
    The cases are all collected and reviewed by Chan. Kent, in Demarest vs. Wynkoop, (3 John. C. R. 129,) that is, he collects all the cases and dicta leaning to his consclusions. 1st. That the .statute of limitation would run between mortgagor and mortgagee; and 2nd. That cumulative disabilities could not be allowed.
    He mistook the law upon the first point, as decided by this court in Hammond and Hopkins, at the last, term at Sparta; upon the second point the question whether coverture could be superadded to infancy, decided it could not. Many judges have been opj to allowing these two disabilities to accumulate; they come so near the reason of those voluntary disabilities, which have no reason to support them. I am aware that the principle of the decision is often influenced by the particular character of the facts. The Chancellor rested* his decision of this point very much upon Stowel vs. Zouch, and that class of cases where the statute had began to run, on account of the similarity. He did not refer to Cotterell vs. Dutton, (4 Taunton, 826,) decided by Mansfield, C. J. assisted by Campbell, Heath and Gibbs, judges, in 1813. There the right descended to Elenor Cotterell, in 1770, she being then a feme covert, and died covert the first of November, 1785, leaving two sons, infants. The first attained his full age and died; the second brought this suit. By the judges: “the ten years do not run while there is a continuance of the disabilities, nor shall it run from the death of the ancestor, but from the cessation of the disabilities. was He iosed
    This case is an authority for the construction contended for on our statute.
    This question is not affected by the act of 1797, ch. 43, section 4. The saving there is that it shall not tend to affect or injure the rights of minors, femes covert,'&c.
    At the time the act of 1819 was passed, this plaintiff was an infant ten years old. The right was cast upon him by. the death of his mother, and was then vested in him.
    More than three years had elapsed from the death of his mother, so that he was either barred or not, by the old law. If barred, then the act of 1819 has nothing to do with the case; if not barred, he had a good title in himself at the time this act passed, and being an infant, his right is saved to him by the statute.
    
      The words are, that if any persons that have been, . „ , , , , „ are, or shall he, entitled to commence any action, shall have been, be, or shall be, at the time the right accrued, infants, feme coverts, &c. they and their heirs may, within three years next after full age, discoverture, &c. or death, take benefit of, and sue., &c. And in the construction of this saving, cumulative disabilities shall not tbe allowed.
    The meaning is, that it shall not apply to disabilities hereafter accumulating, whether the right previously fell or not. For instance, if this boy had died after 1819, leaving a younger brother.
    The court will give to the statute a prospective operation.
    If the plaintiff had a good title by the old law, and this statute comes and takes away the right, it is unconstitutional.
    But this statute saves to him as an infant, all the right which he had at its passage.-
    The expost facto construction -contended for, is, that it merely declares him barred, divests him of right, and therefore saves to him nothing; which cannot be supported upon principle or by authority.
   Catron, Ch. J.

Before the fourth section of the act of 1715, can be comprehended, the second section, the enacting clause of the statute, must be understood, and in that sense in which it has been applied in practice, taken in connexion with, and as explained by the act of 1797. To understand the meaning of the act, we must ascertain for whom, and by whom, it was passed.

In 1715, North Carolina was an infant and feeble colony; the lands belonged to a company of grantees, as lords proprietors, who sold them, or bestowed them on actual settlers, at the charge of office fees, and let them at quit rents. The intercourse with the mother country was extremely limited, and the real owners, the great proprietors, known to the people of the province alone by reputation, if at all. They all resided in England. There, deaths had and did occur, and on people there, descents were cast. This had been the case from 1665, when by the charter of Charles the second, the province was granted. Few of the original lords proprietors were living in 1715, and who the heirs were, it must have been in many cases, impossible for the people of the province to know.

Thus situated, in 1715, they were authorized to legislate for themselves, subject to the restriction, that their acts of legislation should receive the sanction of the King and council. One of the first laws made, was the one now under consideration. The titles were most irregular. , To add to their confusion, the province of Virginia had claimed jurisdiction over that section of country, and her Governors had granted lands there. To settle the titles to lands, it was indispensable that they should be confirmed by legislative means. To this end, the enacting clause declares, that all these irregular titles shall be confirmed, and held valid, where the claimant had theretofore remained in possession of the land seven years; and that such titles in future should be confirmed to the possessor of the land for seven years, without any suit in law against him; that the title should be good and legal to all intents and purposes, against all, and all manner of persons. The act of 1797, points out the description of paper titles, by virtue of which the possession shall be holden.

The enacting clause looked almost exclusively to the protection of the possessor, regardless of the claimant abroad, so “that the expectations of heirs might not in a short time leave much land unpossessed, and the title so perplexed, that no man would know of whom to take or buy land,” as we are told in the conclusion of the fourth section. To this effect is the doctrine adjudged on much consideration, in Hickman’s lessee vs. Gaither and Frost, 2 Yerger’s Rep. 204;) to which nothing need be added, Ml, and all manner of persons are barred by the terms of the enacting clause. To this sweeping provision no exceptions can be made by the courts; such as exist must be found in the statute. Does the fourth section exempt infants and femes covert from the operation of the act? Clearly not. The act runs against them, because they have only three years allowed them to sue after full age or discoverture. The act does its office prima facie, in seven years, but the privilege to sue, during the infancy and coverture, and three years thereafter, is reserved to such persons. This they may do, or not do, at their pleasure. If they take no advantage of their right to sue, no one else can. The privilege is personal, and limited to the person, or persons, entitled to .the land, and to sue, when such right of action first accrued. Es-. pecial care was taken by the act of 1715, not to save the bar in favor of the heir of an infant, or feme covert, dying with the right of action. A leading object of the act was to cut off the expectancies of heirs. These expectancies might have run on for many years, and through different generations; they were not limited to small tracts, but to land enough for a kingdom, and presently might overwhelm and destroy the peace and prosperity of avast population. The temptations to pursue and attend to the claims, were few in 1715; but after several descents cast, they would of course become great, by reason of the-rapid increase in value of the lands consequent upon their settlement. Common justice at the hands of the great proprietors required, that the settler who. was subjected to the hardships of commencing agriculture in a wilderness, to which he had-emigrated perhaps from Europe, and where he had to contend with the savage foe, should enjoy his farm in fee, to him, and to his children. Under these circumstances, that any exception was made at all, (where seven years possession had accompanied an'irreg-ylar title,) may perhaps be found in the fact, that the lords proprietors were the legislators to a great extent, and such an act might not have received the sanction of the King and council at home. The ninth section of the forty eighth chapter of the same year, cut off the creditors of deceased persons, if claim was not made within seven years after the death, without a saving in favor of any one.

As to femes covert, infants, &c. when the act of limitations begins to run, it runs on: if the seven years run out, and the feme covert or infant die, no descent of the land or right of action is cast on the heir, more than if the ancestor had been discovert or adult, during the whole seven years. So in this case, where Mrs. Guion died after the act commenced its operation, and died covert, the act run on against her heir, the lessor of plaintiff, although a minor; and at the end of seven years completed and confirmed the title of Burton, under and by virtue of the enacting clause. Had Mrs. Guion lived, and at the end of four years after Burton’s possession commenced, become discovert, and then three years more had run for Burton, she would not have had other three years to sue, but would have been barred, although covert for four years of the seven, because the statute had run against her seven years, and she had been disco-vert three. The enacting clause had done its office for Burton, and she had had all the time the exception to it allowed her.

This court has often holden, and nothing is better settled by it, than that the Legislature having made no exceptions to the enacting and barring clause of the acts of limitation, the courts can malte none; that it would be legislating to do so. The cases of Cocke and Jack vs. M’Gennis, and Hickman’s lessee vs. Gaither and Frost, are to the point, and amongst the best considered cases that have ever come before the court.

Before and about 1319, the construction of the seven years act of limitations had employed more of time and talent m the courts m this section of the State, than any , ,. m other subject. I o no man were they more familiar than to the eminent lawyer who drafted the seven years act of The reasons for allowing no time to the heir to sue after the death of the ancestor, against whom seven years had run whilst such ancestor was an infant or covert, had ceased in 1819, and therefore by that act, the heir is allowed three years to sue after the death; hut this he must do within three y’ears, although he he himself an infant at the death; that this was anew exception, and in addition to those declared by the act of 1715, and that the exception was borrowed from the British Statute, (21 Jac. I,) is a familiar fact. So was the idea of confirmation of title, in opposition to that of a bar only to the remedy, borrowed in the act of 1715, and that of 1819, from the British Statute of fines. The 21 of Jac. I, was modified by the colony of Carolina in 1715, (being then about a century old,), so as to suit the circumstances of the country, and the exception that the heir should have time to sue after the death of the disabled ancestor, for the above reasons designedly left out.

The case of Wilson against Kilcannon, Brice and wife, (in 4 Hayw. Rep. Í82,) was a different case from the present. Whether the personal privilege to sue, continued in Mrs. Brice, after Wilson had holden seven years possession, she being an infant part of the time, and covert after, it will be time to examine when such case may arise. Whether, the two disabilities, or rather exceptions in the statute, occurring in Mrs. Brice’s case, can he run into each other, is a vexed question, to touch which is at present uncalled for. Both the exceptions attached to Mrs. Brice, are in the statute; that claimed in this cause for young Guión, is not in it; and we are asked in effect to insert it by force of the common law, which, it is insisted, never works an injury to infants, because of the lapse of time and laches. This may be, and as a general rule is true; but the act of 1715 altered it, and it stands so altered at this day; for the act of 1819 would not allow the heir to tack his miancy to the cov-erture of the mother, to save the bar. This would be running into perpetuities. The taking of disabilities' in different persons has been rejected by ns since our earliest history; was even rejected in England before our day; is rejected by all our sister States so far as I know, and must of course he rejected in this instance.

GrREEN, J.

In this case, the defendant took possession of the land in controversy during the lifetime of the plaintiff’s mother, she being then covert, and so continuing until her death in-, 1815', at which time the plaintiff was an infant, and so continued until a short time before the suit was brought in 1831.

The principal question arising upon these facts, and which is decisive of the case, is, can the disability of the plaintiff be added' to that of his mother, and thereby save the bar?

The proviso in the act of 1715, ch. 27, sec. 4, provides, that if any person or persons that is, or hereafter shall be entitled to any claim of lands, tenements or he-reditaments, shall, at the time said right or title first descended, accrued, come or fallen, be within the age- of twenty one years, &c. he shall and may, notwithstanding said seven years he expired, commence his, her or their suit, or make his, her or their entry, &c. so as such person or persons shall, within three years next after full age, &e. take benefit and sue for, &c. Upon the construction of this proviso, the case must depend. Of its true meaning,, an attentive examination of its provisions can leave no-doubt. ' The saving in express words is limited to the’ person who may be under any of the disabilities, at the time “the title first descended, accrued, come or fallen.”' Such person, and such alone, who may be under disability to sue at the time the right of action accrued, may sue-within three years next after the disability shall he removed. The language of the act in my view, excludes the idea that any successive disability should be superad-de(j to that which existed at the time the right of action ae-crued. The meaning is the same, as though the Legislature had said, that if any person shall be entitled to a claim of lands, and shall be, at the time the title first descends, within twenty one years of age, then such person may, notwithstanding the said seven years be expired, commence his suit, or malte his entry as he might have done before this act, so as such person shall, within three years next after coming of full age, take benefit and sue for the same: or if he shall, when such right accrues, be non compos mentis, he may in like manner sue, after he shall become of sound mind, &c.

The act, in this proviso, intended to save the party having a right falling upon him while under disability, from the operation of the bar during the continuance of such disability, and for three years afterwards, but not from its operation during any other disability, not existing at the time the action first accrued,- but under which he may have been ■placed subsequently, and before he was free from the former. As the court say in Shute vs. Wade, the time when the right accrues is the period fixed to determine the situation of the party, whether he be exposed to or saved from the operation of the statute; and if at that time, he be under any disability mentioned in the act, he shall not lose his right by neglecting to sue, until three years after the removal of that disability. The act does not look forward to subsequent disabilities, either in the same person or his heirs. No provision is made for such cases. Existing circumstances at the time the right or title first descended, are provided for, and none other. Therefore infants are not saved if the action accrued in the lifetime of the father, although he may die one day afterwards, when it will be impossible for him to sue; nor for the same reason, are they saved in personal joint actions, should one, entitled jointly with them, be of full age when the action accrues. I mention these cases to show that cases of lii- i • • . i • , , Hardship and inconvenience can have nothing to do with the construction of this statute. We must look to its language for the meaning of the Legislature, and give to that language the construction its obvious sense indicates. Looking at it in this way, it appears to me, the obvious sense is that which I have suggested.

Although I think that no disability subsequently occurring can be added to that existing at the time the right to sue accrued, yet it must be manifest, that when such disability exists in another person than the one to whom the right of action first came, the language of the proviso much more plainly excludes him from the saving. 6 East, 80: 3 Con. Rep. 226: 2 Preston, 341.

It is unnecessary to discuss the question, whether the act of 1819 operates in this case, as I think by the plain meaning of the act of 1715 the plaintiff is -barred. I cannot however perceive any reason opposed to the constitutional operation of the act of 1819. The whole seven years from the time the defendant took possession of the land in controversy, had not expired at the time the act was passed. This act, in declaring that no cumulative disability shall be allowed, would only operate to shorten the time within which he must sue. Such a pro* vision is clearly within legislative competency. 6 Peter’s Rep. 124. Therefore, if the act of 1715 were construed as the plaintiff contends it ought to be, still he would be barred by the act of 1819.

For these reasons, I concur in affirming the judgment in this case.

Wiiyte, J. concurred.

Peck, J. dissented.

Judgment affirmed.  