
    *Lessee of Nahum Ward v. Benjamin Racer.
    A deed made in 1835, "by two surviving executors of a person who died seized of the premises in 1804, will not prevail against an adverse possession of more than twenty-one years since the death of the last devisee.
    If the deed of the 1835 has relation hack to the “ inception of the power,” so as to defeat the estate in the heirs of the last devisee, it will he deemed in law to give a right of action to the lessor of plaintiff at the same early-period.
    Error to the common pleas of Washington county.
    The action in the common pleas was ejectment.
    Nahum Ward claimed title to the premises sought to bo recovered, under a deed dated December 10, 1835, made by the two surviving executors of Pascal N. Smith to said Nahum Ward. Ho proved on the trial in the court below that Pascal N. Smith died seized of the land in controversy, in the year 1804, having made a will which hears date March 20, 1801. By this will the testator gave one-third of all his estate, real and personal, to his wife Hester, and directed that the residue be equally divided between his four children, Harriot, Augusta, William Temple, and Hester Georgiana. Ho directed, further, that if any of his said children should die before they arrived at the age of twenty-one years, or without issue by lawful marriage, then their part or parts should go to the survivors or survivor, their heirs and assigns forever. And in the event that all his said four children should die before they came to be twenty-one years of age, without having issue by lawful marriage, then he directed that the whole estate, thus devised to said children, should go to his said wife Hester, and to her heirs and assigns forever.
    He made his wife Hester, and his nephews, Benjamin Strong and John Aspinwall, the executors of his last will and testament, and empowered them, “at their discretion, to make sale of any real or personal estate that he might leave at his decease.” *It was proved on the trial, that all of said children named as devisees in said will, except Hester Georgiana, died prior to the year 1816 without issue, and under the age of twenty-one years; and that the said Hester Georgiana died in the year 1816 without issue, but above the age of twenty-one. The widow of said testator, Hester Smith, died in the year 1823, having survived all the children. The plaintiff also gave in evidence deeds of conveyance to him from some of the heirs at law of the said Hester Georgiana, dated in the year 1835 and 1836, and proved that all the interest and estate which said widow died seized of in the premises, had been vested in him by the deeds of trustees and devisees of said Hester, made in 1835. The plaintiff further proved that neither the said Pascal N. Smith, nor his executors, devisees or widow, nor either of the grantors in said deeds to said Nahum Ward, had ever been in the State of Ohio, but, on the contrary, had at all times resided out of said state.
    The defendant proved that ho and those under whom he claimed and held possession, had been in the actual, adverse, notorious, and continued possession of the premises in controversy, ever since the year 1811.
    The court of common pleas gave judgment for the defendant. The plaintiff’s counsel moved for a new trial, and the motion was overruled. Exceptions were taken and this writ of error brought to reverse the judgment.
    C. B. Goddard, for plaintiff
    This suit was bvonght within the time limited to non-residents to avail themselves of their disability, under the statute of limitations. It is claimed, and was so adjudged below, that the exceptions of the statute will not avail the plaintiff, because, notwithstanding the power in the will, the estate was devised to certain children, whose death interrupted the disability, and that upon the principle of the cases of Carey v. Robinson, 13 Ohio, *181, and Whitney v. Webb, 10 Ohio, 513, the statute commenced running twenty-one years before the commencement of this suit.
    Without impeaching the doctrine of these cases, I have two answors to the attempt to apply thorn to the present case :
    I. Upon the execution of the deed to Ward, his title relates to the inception of tho power, and divests the estate of the devisees.
    
      II. The plaintiff claiming under the executors, against whom the statute never ran, it can not run against him, no matler what might be its effect, if he claimed through the devisees. Hill on Trustees, 503, 504, pt. 3, div. 1, ch. 3; Wells v. Prince, 9 Mass. 508; Wallingsford v. Hearl, 15 Ib. 471; sec. 17, Act of 1831, 3 Chase, 1788.
    The question whether the power could be executed after so great a length of time, never can arise between the grantee under the power and a stranger to the estate.
    This case has been in the Supreme Court before. The common pleas once refused to permit the deed to be read in evidence, because executed thirty years after the death of Smith. This was reversed by the Supreme Court, and on the last trial the deed was received in evidence.
    Charles R. Rhodes, on same side,
    upon the first proposition maintained in the preceding argument, cited Sug. on Powers, 331, 332; Middleton v. Crosts, 2 Atk. 661; Bradish v. Gibbs, 3 Johns. Ch. 549. These authorities hold that the estates created by the execution of a power, take effect in the same manner as if created by the deed which raised the power. And such estates divest the estate of the devisee, heir, or assigns. Willard v. Nason’s Adm’rs, 5 Mass. 241; Sug. on Powers, 337, sec. 338.
    The extinguishment of the power is not presumed from the lapse of time. Pickering v. Lord Stanford, 2 Vesey, Jr. 272; McDowell and wife v. Chambers, 3 Johns. Ch. 137; Stackpole v. Stackpole, 4 Dow. 209; Huett v. Fletcher, 1 *Atk. 467; 2 Phil. Ev., Cow. & Hill’s Notes, 347, ch. 7, sec. 2, Potter v. Litcomb, 7 Greenl. 303. The defendants can not impeach the execution of the power. 3 Johns. Ch. 583; 1 Ves. 106; 2 Atk. 33; 2 Ves. 466 ; 1 Atk. 463; 4 Bro. 136 ; 2 Ves. 269; 3 Atk. 235; 14 Ves. 353; 17 Ib. 152.
    Simeon Nash, for defendant:
    I. The plaintiff is barred by the statute of limitation. The cause of action accrued in 1811; the then holders of the legal title died in 1816, and 1823; suit brought in 1846; statute began to run as to two-thirds in 1816, and as to one-third in 1823; twenty-one years expired in 1837 and 1844. 10 Ohio, 513; 13 Ohio, 181.
    II. Nor can the fact that the plaintiff claims under a deed from the executors of P. N. Smith alter the result. The statute of limitations operates against the person holding the legal title, whether he hold such a title in his own right oras a mere trustee. If he be barred, so are all those having equitable interests in said lands. Wore not this the case, the devisees in this will who are bound, could yet obtain pay for their land through a sale by the executors, under this power ; a convenient way of getting round this wholesome statute. Smilie v. Buffle, 2 Barr (Pa.), 52 ; Williams v. Otey, 8 Humph. 563; 7 U. S. Dig. 320, sec. 31; Ib. 352, secs. 26, 27. Vide also Dow v. Warren, 6 Mass. 326; Angell on Limitations, 48; 2 Brod. & Bing. 217.
    III. The lessor of plaintiff is barred, because he is not within the saving clause of the statute. It is true that he claims to recover, because his grantor comes within the saving of the statute; and such seems to bo the opinion of the court in 13 Ohio, 181.
    That case was rightly decided; that was an action on a personal contract, and must therefore be governed by that portion of the statute which relates to such contracts. There the intestate *had never been in the state. The administrator, came hero to enforce his rights, and if the intestate was within the saving clause, so that ho could have maintained an action, so was his administrator. Hence-the administrator could not bo barred until ho came into the state. This can only bo the case, however, when a foreign administrator is empowered to sue by the law of the state where the debtor lives. This part of our statute is like the English statute; in neither is there any saving in favor of heirs, executors, or administrators. Strithart v. Graeme, 3 Wilson, 145 ; 14 Mass. 203. The decision in 13 Ohio, 181, did not necessarily call for any comment on the opinion delivered in the case in 10 Ohio, 513.
    But how stands the law in relation to actions for the recovery of real estate ? The English statutes have a saving in favor of heirs, as well as in favor of the person in whom the right of action was at the inception of the adverse possession. Our statute has no saving in favor of heirs nor grantees. In England, a grantee acquired no title, where the land was hold by adverse possession; hence there, no one but the holder of the legal title at the time the right of action accrued could maintain an action. Hero, however, such grantee may maintain an action at the time of the conveyance to him.
    In 13 Ohio, 181, in argument it is assumed that where a disability exists at the time the adverse possession begun, the limitation fixed in the statute does not begin to run until that disability is removed, or the party dies. This is not correct. The true idea is, that the statute is a bar against all, saving those who can bring themselves expressly within some one of its saving clauses.
    By the one construction, any person can protect himself against the operation of the statute by proving that the person to whom the right of action first accrued, was within the saving of the statute; and that his death did not occur, or his disability was not removed within twenty-one years. By the other construction, the statute is a bar, unless the party suing *can show that he himself is the person named in the statute, in whose favor a saving is made ; and as our statute has no saving except in favor of the person first entitled to sue, the holder of the legal title at the time the adverse possession originated, heirs, grantees and devisees, are absolutely barred, if such person has permitted twenty-one years to elapse before making such grant, or before his death. To illustrate this view of the question : The plaintiff first proves a legal tille to the premises, and then rests; the defendant then proves an adverse possession for over twenty-one years, and then he rests; and in this state of the evidence he is entitled to a verdict. To do away with the effect of this adverse possession, the plaintiff must now show that he comes within the saving of the statute. The statute provides simply for saving the rights of a person, who, at the time his cause of action accrued, was a feme covert, insane, an infant, imprisoned, or beyond seas; and these persons have twenty-one years given them to sue, after the removal of such disability, or after coming into the state. There is hero no saving in favor of his or their heirs, devisees, or grantees; and how can the court then say that these parties, not named, can take advantage of a privilege reserved to another? The English statute and the statutes of all the old.states contain a saving in favor of the heir, giving him ten years after the death of his ancestor under disability, to bring his suit. Our statute contains no such saving, and is it not legislation for the court to insert, by construction, such a saving, not only in favor of heirs, but of grantees too?
    The question in 10 Ohio, 513, was not one of “tacking ” disabilities, but of a construction of our statutes; whether parties not named, not coming within the saving clauses thereof, could be, by construction, brought within them; whether the omission of the clause in relation to heix’s should be added to the statute, in such a way as to give them, and not only them, but grantee3 and devisees, twenty-one years to bring suit after the death of his or their ancestor, devisor, or grantor, within the saving clauses of the statute.
    *Sueh is the true construction of the statute. “ It has been shown,’’says Angelí, in his work on Limitations, p. 518, sec. 1, “ that unless persons are under the disabilities expressly mentioned in the statute, they can not be exempt from its operations by judicial construction; and so it would seem by the civil law, that prescription runs against all persons, without exception, unless they are included in somo exception.”' This question was decided under the statute of 32 Henry YIII. The saving clause was in favor of the first party, and nothing was said about his heirs, as in the statute of James. Brook, in his reading upon this statute of Henry YIII, says (vide appendix to Angelí on Limitations, 1 ed. 018, note 5, of edition 1846): “A man seized in right of his wife, is disseized, or makes a discontin, and livoth sixty one years, he and his wile die, tho heir of tho wife should not have action, claim, nor enter.” The limitation under this statute was sixty years; sixty-one years had elapsed when husband and wife died. Now, if the statute did not begin to run until the death of the wife, then the heir of the wife was not barred; but as tho statute liad no saving in favor of the heir, it was held that he was barred. 
    
    
      *The fundamental notion of the statute is, that it runs against all not coming within some saving clause; and that the heir, unless named in the statute, can not protect himself by showing that his ancestor died under disability ; and that the time of limitation has not run out since his death. Hence the-statutes of James and the old states, expressly provide that the beir may bring his suit when his ancestor dies under a disability. Our statute is the only one I can find in which this provision is omitted. But Ward, in this case, is not even an heir—he is a mere volunteer grantee—one in whose favor there is no exception; There is no clause in the statute which protects him from its operation.
    I hope the coart will reconsider the dicta in 13 Ohio, 181.
    IV. The plaintiff does not show any title to the premises. The court will not reverse the judgment if it appears from the record that plaintiff has no title. This title is defective.
    1. Because the power in the will is a naked power to three by name, and one having died, the survivors can not execute it. 1 Ohio, 232; 2 Ib. 127; 8 Cow. 544 ; 4 Hill, *514; 1 Comst. 358 ; 13 Met. 220; 8 Humph. 563.
    But it is claimed that section 14 of the act of 1831, relating to wills, 3 Chase’s Stat. 1778, avoids this objection by retrospectively declaring that such survivors may execute the power. This statute does not apply to such a power as this: 1. Because it is a naked power, not coupled with a trust; and, 2. Because it is a dsscretionary power. The statute says: “ Where lands are directed or devised to bo sold." These lands are not directed, to bo sold. The executors aro simply empowered to sell at their discretion. This is not such a power as a court of equity would compel the rxecution of; that is only done when the power is coupled with a trust, the execution of which trust can not be carried out without the exercise of the power. 2 Story’s Eq. 321, sec. 1061; 1 Ib. 181, 169; Sugden on Powers, 392, ch. 6, sec. 3; Cole v. Wade, 16 Ves. 27.
    This statute, if construed as is claimed, would be unconstitutional, as divesting a vested right. By the death of the devisees in 1816 and 1823, the title had become vested in collaterals absolutely; the power having lapsed in 1823 by the death of Mrs. Smith, one of the executors. Now, can the legislature, by law, rovivc this lapsed power,' and authorize the surviving executors to sell and convey, thereby divesting the title of these collateral heirs? 3 Blackf. 275 ; 3 Green 1. 291; 9 Pick. 259; 15 Ib, 435 ; 7 Johns. 475; 12 Ohio; 16 Ohio, 599.
    2. This power was lapsed because the persons for whose benefit it was created were, dead. The only use that could have been made of this was to pay debts, and facilitate the partition of tho real estate. Tho debts must be presumed paid alter thirty years, and the devisees were all dead, the last child dying in 1816, and the widow in 1823; the children without issue, and the widow without ever having married again. A power can not be executed after the person for whose use it was created is dead. 3 Day, 388; 3 Ib. 384.
    *3. The power was lapsed because it was a discretionary power; and such a power can be executed only by the parties named—can never survive. Willis v. Cooper, 2 Ohio, 124; Colo v. Wade, 16 Ves. 27; 5 Met. 462; 13 Ib. 220.
    
      
       Mr. Nash has furnished, since the decision of this case, the following note, to bo added to his argument:
      “ I have examined Sir Kobert Brook’s reading upon the statute of 32 Henry YIII, cap. 2. That statute had a saving in favor of the next heir of one who was within the saving at the time of the passage of tho statute, or the feast of Ascension, 1546; but there is no saving in favor of the heir of any other person dyiug undo/ disability. Keeping this view of the statute before the mind, one will ho able to understand the following rulings, extracted from the said reading of Justice B rook :
      “ Two joyntenants have cause of a writ of entry upon the ancient limitation, tempore statuti, whereas one was imprisoned tempore statuli, and after he which was imprisoned dieth, the other shall not have action within six months upon tho ancient limitation, notwithstanding this statute,
      “Because the ancient limitation was expired at Ascension, 1546, and he which survived was not imprisoned, and he is not heir to the other, and so not aided.
      “A man of non sane memory at tho time of the statute, or an idiot, had cause of action, tempore statuti, and dyeth after Ascension, 1546, his heir shall never have an action,
      “Because he is not aided by the statute, and the ancient limitation is expired.
      “A man which had cause of action upon the ancient limitation, had issue, two sons, and dyeth before the statute ; the eldest is possessed in France at the time of the statute, and the youngest is within age at the time of the statute, and after the eldest is doraigned, and cometh bache out of France; then the youngest which cometh at full age, nor the eldest, shall not have an action with the sixe yeares upon the ancient limitation,
      “ Because the statute doth not provide for those which were beyond sea, unlesse they had cause of action at the time of the statute, and a man in religion ad not cause of actio n at the time of the statute, and the youngest can not have it, because yet he is not heire.
      “A feme covert, at the time of the statute, had cause of action ancestrall upon the ancient limitation, and after Ascension, 1546, she and her husband bro’t an action upon the ancient limitation, within a yeare then following, etc., they shall not have action, notwithstanding this provision of the statute,
      “Because the wife is aided within six yeares after discontinuance, but not husband and wife after Ascension, 1546, the coverture containing, because the ancient limitation is expired.”
      These rulings show that the plaintiff in any suit is barred, unless he can bring himself within some one of the savings of the statute; it will not answer to show that some other person is within the statute.
    
   Spalding, J.

This action was instituted against the defendant in 1846. Tn 1811 the adverse possession began and was uninterrupted m the defendant and those under whom he holds, until the bringing of this suit.

When this adverse possession commenced, it seems that the owners of the land resided out of the state. A portion of them, were infants, but it seems unnecessary to dwell unon that fact, as it will not change the result.

In the year 1816, wo will suppose that the entire fee of the land vested in Hester Smith, the widow of Pascal N. Smith, on the death of the last child, Hester Georgiana. I say we will suppose this, as it seems to be taken for granted by counsel on both sides, that Hester Georgiana took no more than a life estate in the premises, although she lived to bo more than twenty-one years of age.

At this period, 1816, the possession would not avail the defendant, as the widow, Hester Smith, in whom the whole title centered, was a non-resident and protected by the exceptions to the statute of limitations.

In the year 1823, however, Mrs. Smith died, and at the instant of her death the statute commenced running against all persons claiming under her, and would, in the absence"of any other claim> afford to the defendant ample protection, as more than twenty-ono years had elapsed from the removal of the disability to the commencement of the suit. Carey’s Adm. v. Robinson’s Adm’r, 13 Ohio, 181. But the plaintiff, feeling the inconvenience of sundry decisions of this court, that “cut up by the roots” the doctrine of “tacking” disabilities, to avoid the statute of limitations, has concluded to rest his claim upon the executors’ deed of December 10, *1835. It is then objected that in 1816 the last limitation had fallen in, and the whole estate had become absolute in Hester Smith and her heirs. To avoid this difficulty the ingenuity of counsel has started the proposition that, upon the execution of the deed by the executors to Ward, his title relates back to the inception of the power, and divests the estate of the devisees.”

I am by no means prepared to regard this pretended execution of power as a serious matter, under the circumstances, yet I am content to follow in any path wherein counsel may choose to lead.

If the title of Ward, under the deed, relates back to the inception of the power, so as to defeat the estate of the devisees, it relates back for another purpose equally fatal to the plaintiff’s right of recovery, with the vesting of the estate in the heirs. It relates back so as to given, right of action to Nahum Ward, at the time defendant’s possession commenced, in 1811. As he is not shown to have been under disability, by reason of infancy or non-residency, his right of action is barred by the statute,,and the ruling of the court below was correct. The judgment will be affirmed.  