
    E. L. Lindenmayer et al. v. Ralph Gunst et al.
    1. Adverse Possession. Non-resident. Limitation-. Code 1880, 12678.
    A non-resident may acquire title to land by adverse possession held for him by others for ten years. Absence from the state does .not prevent the running of the statute in his favor, since ejectment can be brought against the tenant. It is only where a right of action accrues m this state, and the person liable goes from and resides out of it, that ¡5 2678, code 1880, applies to prevent the period of such absence from being-counted.
    2. Statute oe Limitations. Ejectment. Demand, for rent.
    
    The statute of limitations of six years applies to the demand for rents asserted by a plaintiff in ejectment.
    Prom the circuit court of Wilkinson county.
    Hon. W. P. Oassedy, Judge.
    This is an action of ejectment, brought in July, 1892, by E. Lindenmayer and other plaintiffs, about twenty in number, against Gunst, to recover a large tract of land, and also rents and profits. Gunst was a mere tenant of J. H. Payne, who was admitted to defend in his stead. The land was originally owned by Ben Rodgers, through whom both parties claim, the plaintiffs claiming as remote heirs and devisees, and the defendant, Payne, under mesne conveyances, beginning with a trust-deed executed by Rodgers, and a foreclosure sale by the trustee therein. It becomes unnecessary to set out the chain of title relied on by either the plaintiffs or the defendants, since the court finds as a fact that Payne has acquired title by adverse possession. It was not controverted that Payne and his immediate vendors had been in possession for more than ten years, but it is contended, in behalf of appellants, that, inasmuch as Payme was, during the entire time, a non-resident of this state, the statute of limitations did not run in his favor.
    
      Section 2678, code 1880, is as follows : “ If, after any cause, of action shall have accrued in this state, the person against whom it has accrued shall be absent from, and reside out of the state, the time of his absence shall not be taken as any part of the time limited for the commencement of the action after his return.” The case was submitted to the court to be tried without a jury, and the court was of the opinion that defendant had acquired title by adverse possession, except as against one of the plaintiffs, who did not come of age until November, 1883, and gave judgment accordingly. The plaintiff in whose favor a recovery was had, recovered one one hundred and twentieth part of the land, and a like proportion of the rents.
    The court held that the six-year, statute of limitations applied to the demand for rents, and, as the successful plaintiff had been of age for more than that length of time before suit was brought, he recovered rent for only six years. The plaintiffs have appealed.
    
      A. G. Shannon, fov appellants.
    The statute of limitations has not run against the plaintiffs, because Payne, and all persons through whom he claims, were non-residents of this state. There is no good reason why § 2678, code 1880, shall not apply to actions for the recovery of land as well as to personal actions. In the adoption of thé code of 1857, real, actions were omitted from the exception for absence, aud placed on the same footing with other actions. The statute has renaained substantially the same since the adoption of that code. For the.same reason, the claim to recover rents has never been barred.
    
      JD. G. JBramlett, for appellees.
    Section 2678 has no application to a case like this. It applies only to personal actions, where, because of defendant’s absence, a suit cannot be brought. The plaintiffs could have brought suit at any time against the tenant.
   Campbell, C. J.,

delivered the opinion of the court.

The judgment is correct. Payne acquired title by adverse possession for ten years. Section 2678, code of 1880 (§ 2748, code of 1892) has no application. It applies only where a cause of action accrues in this state, and the person against whom it has accrued goes from and resides out of the state. A non-resident may acquire title to land by adverse possession held for him by others. An action against the tenant would give the possession to the true owner, and prevent the, ripening of the possession into title.

The successful plaintiff had no right to rent for more than six years.

Affirmed.  