
    CONSTITUTIONAL COURT,
    CHARLESTON,
    JAN. 1804.
    Gourdine v. Theus, Survivor of Theus.
    If one of several joint owners of an estate in land, be a minor, and the rest are majors, the right of all shall be saved from the operation of the limitation act, by the infancy of the minor.
    Motion for a new trial. The action was trespass to try titles to land, and was tried in Charleston, before Trezevant, J. The plaintiff gave in evidence a marriage settlement between James M’Kelvey, and Margaret O’Neal, dated in 1753, (not recorded, see act of assembly 1785, P. L. 357,) by which 250 acres, being a moiety of the land in dispute, was conveyed to trustees by the said Margaret O’Neal, and declared for the several uses following, viz. : 1. To the use of the said Margaret until the marriage. 2. To the support of diaries O’Neal, son of said Margaret by a former husband ; and for the separate use of said Margaret, without be. ing subject to the power or control of her intended husband. 3. To the use of Charles O’Neal 4. To the use of the issue of the intended marriage. 5. if no issue, to the use of James M’Kel. vey. It appeared by evidence, that the marriage took effect; and that the husband and wife occupied the land during their joint lives, except during a few years, when it was occupied by Charles O’Neal, after the death of James M’Kelvey, in 1775 : after which Margaret held the land in possession during her life. She died in 1778. It further appeared, that Margaret had issue besides Charles O’Neal, who died in 1770. without having had issue, twa sons, namely, James and Daniel M’Ki lvey, both of whom died un. der age, and without having had issue. Daniel survived his bro. ther, and occupied the land (rom the death of his mother, until his own death, in 1782. Margaret had brothers and sisters in Ire. land ; and a brother in this country, who was said to be her eld. est brother, who had a son, who died leaving four daughters. These four daughters claiming as co-heitesses the land, convey, ed the same to the plaintiff in 1794. The eldest was born in 1772, the youngest in August, 1778.
    The defendant claimed under a grant to Josiah Brunson, dated in March, 1760, including part of the land in dispute. Brunson devised to Bannister, and Bannister conveyed to the aforesaid James M’Kelvey, in 1772. The same land was seized and sold by the sheriff under execution, as die properly ot M’Kelvey. The defendant was purchaser at that sale, and proved a continued possession since. Tiie presiding judge charged in favor of the plaintiff', upon the ground, that Margaret had gained a good title by possession, which had descended to her heirs, from whom the plaimiff had purchased ; and that the title of these joint heirs were protected against the operation of the limitation act, in favor of the possession of the defendant, by the minority of tho youngest co-heiress, who was within the saving of the act: and that the right of one being saved, saved the right ot all. The jui'}, however, found a verdict for the defendant. The statute of limitations was relied on by both parties.
    For the plaintiff, it was insisted, that the verdict was contrary to law, and the express direction of the court; and that where the limitation act is relied on to support a title, on the ground of uninterrupted possession, it is sufficient to take away that support, to shew that the party against whom the act is brought forward, comes within some of the exceptions of the act, aud that the right of such party is preserved, and not barred by the operation of the act. That in this case, the estate had descended to four daughters in coparcenery, who became entitled to a joint estate as one heir : and that until four years after the youngest daughter came of age, the'limitation act could not operate to affect her right; and if it could not affect her right, the rights of the other parceners joined in interest could not be affected ; because their rights and interests could not be sepaiately distinguished and ascertained. And at any rate, if this doctrine should be found incorrect, yet the verdict is wrong, because the youngest daughter’s right was not barred by the act of limitation, which being transferred to the plaintiff, entitled him to her purparty, or moiety, of the estate. ‘2 Bl. Com. 187. Co. Liu. 164. 2 Sa k. 423. Com. Dig. Tit. Abatement, letter E. The doctrine of summons aud severance, according to its technical operation, has become obsolete, and fallen into disuse, on account of the many inconveniences to which it is incident. But suppose it practicable to summon and sever, yet if coparceners are severed, the severance goes o dy as to the right of prosecuting an action, aud it works no severance of the right of property, or title to the estate. The estate still continues a joint and undivided estate, and the rights ol the joint proprietors as indistinct and in. discriminate as before. 2 Bl. Com. 182, 191. The unify aná‘ intirety ot interest remiiins, and each has a right to occupy promLcuously, undivided moieties of tiie whole. The entry of one coparcener, is considered as the entry of 'all. So the nonsuit of . ’ ' • - ,: one, is the nonsuit of all. 6 Bac. 401. 4 Bae. 40. New edttion Run. on Eject. 60, 17. 1 Salk. 285. 2 Balk. 423. 6‘‘ Mod. 44. 5 Burr. 26()it. A man cannot be disseized of an undivided moiety. Co. Lilt. Í63, 364, 253. The heir could not be said to be of age until all the coparceners were of age, for they all constitute one'heir. And as the possession of one joint owner shall be deemed the possession of all, (1 Salk. 285) to' prevent the act oí limitation from operating against any of them ; so, for reasons equally good, shall the nonage of one be deemed thfe nonage of all, and pieveut the .act of limitation from woikmg a bar to the claim of either. An infant cannot be compelled to sue; his right is saved during minority. Where others aré joined in the same interest with the infant, their rights ought also to be saved, otherwise they might be pnjudiced by the obstinacy or caprice of an infant coparcener!-
    On the other sine, it was' answered in behalf of the defendant,' that parceners, although they make but one heir, yet their rights are capable of a sep trate and distinct consideration. That the estate does not descend to them to hold per mie and per tout, but in separate portions, and may be severally forfeited,1 and separately disposed of. And that the entry of one not wirbin age may be taken away. Bac. Tit. Limitation, Co. Litt. 163,- 6 Cowp. 217. Adverse possession of one, evidence of actual ouster,'and may destroy the title of a joint owner. The doctrine as to the possession of one being held the possession of all, the joint proprietors' Obtains only m cases where the joint owner in possession, attempts to take the whole to himself by possession, without any sufficient previous notice to the co-proprietors ihat he holds the possession by any adversary claim ; but it will not apply where a stranger is in possession, and claims adversarily against all the world. The doctrine of summons and severance may be infoiced here. 4 Bac. 661. 20 Via. Abr 57. And after judgment of severance ad sequendem solum, a moiety may be recovered. And infants may sue, and prosecute by guardian. 3 Bac. 150.
   The court were all of opinion, that a joint right cannot be barredby the limitation act, tf any of the persons connected in the right, are entitled to the benefit of any ol the exceptions in the saving clause of the act; and therefore a new trial was ordered.

Pringle, Utornev General, Desaussure, Bailey, and Gail-Lard, for plaintiff. Parker, and Simons, for defendant.

Present, Waties, Johnson, Trezevant, and Brevard. Justices.  