
    
      Christopher Godfrey, Administrator, and others, vs. J. W. Schmidt and J. F. Walker, Executors.
    
    
      'Quare, — If a man depart beyond seas and is not heard of after, whether, at the end of seven years, his death must be presumed to have occurred then, or at the time he was last heard of.
    But, to quiet a title under twenty years possession, the death of one who had gone beyond seas and was never after heard of, was dated from his departure.
    The presumptions arising from twenty years possession, begin to run from the commencement of the actual possession ; not, {as with the statutory limitations) from the time when a cause of action accrued to the contesting party.
    Presumption by lapse of time, against one who had been under a disability to sue, must rest on twenty years clear of the disability. But one beyond seas will not be considered as under any disability, so as to entitle him to a deduction of the seven years allowed him by law for prosecuting his suit.
    Heard before bis Honor Ch. Dunkin, whose decree on the circuit presents a sufficient abstract of the ease.
    
      'Freeman Wing, a seafaring .man, left .Charleston, on a voy-» :age, ip October or Noyember, 1810, and has .not .since been heard of. His widow, Sarah 0. Wing, held possession of ;his estate, consisting of a house and lot in Charleston, and some inconsiderable property, until her death, subsequent to gOth April, 1832. By her will, she disposed of the estate as her own, and the defendants are her executors. Early in January, L838, administration on the estate and effects of Freeman Wing was granted to the complainant, Godfrey; ,and on the 9th January, 1838, this bill was filed on behalf of tfie administrator and of Nathaniel Wing, of Massachusetts, alleging that Nathaniel Wing was the father, or next of kin, ■of Freeman Wing, and praying an account of the personal estate and partition of the realty, with a discovery 'of title deeds, <$£c. The case was heard op the defendants’s pleas of •.the statute of limitations and lapse of time.
    
      Ricldlehoover vs. Kinard, (1 Hill C. R. 378,) states all the ¡doctrine applicable to this case. Mrs. Wing, the defendants’ testatrix, was in uninterrupted possession of th,e estate from November, 1810, till April, 1832, more than twenty-one years; and those claiming under her until January, 1838. In the .case cited, it is said, “The lapse of twenty years is sufficient to raise the presumption of a grant from the State, of the satisfaction of a bond, mortgage, or judgment, of the payment .of a legacy, or of almost any thing else that is necessary to quiet ¿he title of property.” In the same case it is said, if there had been no will and no administration, the court would pre-surge an administration, and that defendants had acquired a ■title from the administrator.
    As was declared by Lord Erskine, in Hillary vs. Waller, (12 Ves. 267,) mankind must, for the preservation of their property and rights, have recourse to some general principle to ¡lake the place of individual and specific belief; and these legal presumptions are sometimes made even against the fullest conviction that the fact is otherwise. But it was urged, in this case, no presumption could arise until the death of Freeman Wing, and that, as no evidence of his death was offered,' the fact cannot be supposed to have taken place until seven years after his departure from Charleston, in 1810. In Naser vs. Brockaway, decided by Chancellor Harper, at Charleston, May 1830, it was held (as I understand,) that after the expiration of seven years, it will be presumed that the party died at the commencement of that period. The circumstances of that case aré not before me: but, in Webster vs; Buckmore, (13 Yes. 362,) when the person last appeared'he was in very bad health, and was to have returned in six months. The master’s report stated the facts,- and that he could not be presumed dead at the expiration of five or six years from' that time. The Lord Chancellor sustained an execution on this ground, and ruled that he must be taken to have died when he was last heard from.
    It is true that, in Doe vs Judson, (6 East, 81,) (the' circumstances of which are very like this case,) Mr. Justice Rooke instructed the jury that “as to the time of the death, it was incumbent on them to* find the fact as well as they could, under the doubt and difficulty of the case; that at any time beyond the seven years they might fairly presume him dead, but the not hearing of him within that period, was hardly sufficient to afford such a presumption.” And Lord Ellenborough, in the same case, adverting to this presumption of death, refers the time to the expiration of the seven years. But it does not appear to me necessary to determine this question. After the lapse of twenty years every thing is presumed, which is necessary to quiet the title of property; — the death of the last owner, administration on his estate, and a title from the administrator. This period includes all those lesser periods within which the law presumes the existence of particular facts ; and is a general protection against all persons* who are not under a disability. Any other construction, as was said in Doe vs. Judson, would extend indefinitely the period for prosecuting claims. And this is also a reply to the objection, that as to the personalty, the cause of action did not arise until the time of granting administration. In Riddlehoover vs. Kinard, the court says this applies only in respect to the statute of limitations, and not when the presumption is to be considered from lapse of time. ^
    Then as to the realty. In Gray vs. Givens, (*I_Hill C. R fill,) it was held, that after twenty years exclusive possession, by one tenant in common, an ouster of his co-tenant would be presumed, and the right to partition barred. If the intestate died in 1810, the complainant was barred in 1850, during the lifetime of Mrs. Wing. But if his death be fixed at the end of seven years after the last intelligence of him, the complainant was barred in October, or November, 1837, two months prior to filing his bill. It was said, however, that the complainant having been beyond seas, when his rights -ac? crued, was entitled to seven years to institute his action, and that, in computing the lapse of time, this period must be deducted.
    In Gray vs. Givens, the court say, “the time during which the party to be affected has been under a disability, must be deducted, in computing the lapse of time, in analogy to the statute of limitations.”
    But the Act does not regard an absentee beyond seas, as under a disability, like an alien enemy, a minor, &c. Our courts are open for the prosecution of his rights; no impediment is thrown in his way: but, in consideration of his position, two years longer are allowed to him than to a resident of the State. See Forbes vs. Foot, (2 M’C. R. 331.)
    
      It is ordered and decreed, that the bill be dismissed.
    The complainants appealed from the decree of his Honor., the Chancellor, and moved for a new trial, on the grounds that they were entitled to an account of the personalty and partition of the real estate, and were not barred by time.
    
      Hunt Sf O. M. Smith) for the motion; Memminger &■ Jerk vey, contra;
   Curia, per

Johnson, Ch.

From a document produced at the hearing of the appeal, it is plain that Freeman Wing was alive three or four months subsequent to the period assumed in the circuit decree. But from the view taken by this court, the difference is not material. The general principle stated in the decree is recognized by this court, to wit, that “after the lapse of twenty years, every thing is presumed which is necessary to quiet the title of property — the death of the last owner, administration on his estate, and a title from the administrator.” Mrs. Wing was in the quiet and undisturbed possession and enjoyment of the estate, from February, 1811, till her death in April, 1832. The piesent claimant has, during that time, been under no legal disability. The general rule must then be applied. Appeal dismissed.

Harper, Johnston and Dunkin, Ch., concurred.  