
    
      John O. Hill & Wife vs. Wilson and Charles Sanders.
    
    Deeds of lease and release, dated in July, 1786, of land lying in "Winton county, held, on proof, that the county court for 'Winton was not organized, and a clerk thereof elected, until October, 1786, to hare been properly recorded in the register’s office in Charleston, so as to authorize the admission in evidence, under the Act of 1843, of copies thereof from that office, notwithstanding the provision of the county court Act of March, 1785, requiring all deeds to be recorded in the county where the lands lay.
    That successive minorities of co-tenants of land will protect the interests of adult co-tenants from the operation of the statute of limitations, is a well settled rule of law in South Carolina; th; rule e> tends as well to tenants in common as to joint tenants, and applies, whether the infant co-tenants join in the action to try the title or not.
    H., born in 1818, and T., bom in 1807, were tenants in common of land which de-scendedto them, by the death of their ancestor, in 1818; T. died in 1833, leaving infant children: in trespass to try title, brought by H. alone, it was held, that H.’s infancy protected T.’s interest from the operation of the statute of limitations, until the death of T., and that H.’s interest, after she arrived at age, was protected by the infancy of T.’s children.
    
      Before Frost, J., at Barnwell, Spring Term, 1851.
    The report of his Honor, the presiding Judge, is as follows:
    “ Trespass to try title. The plaintiffs produced a grant to Luke Breen and Henry Hughes for 12,550, covering the land sued for, dated 5th June, 1786. They next offered certified copies, from the register of mesne conveyances for Charleston district, of deeds of lease and release from Henry Hughes to Nathaniel Twining, of one-half of the land granted, bearing date the 13th and 14th days of July, 1786. It was objected to these copies, that the deeds were not recorded in the proper office. The Act of 1731 requires all deeds to be recorded in the office of the register of this province. That office was then in Charleston. By an Act of 1785, the State was laid off into counties ; what is now Barnwell district, being established as the county of Winton. By the county court Act of 1785, all deeds are required to be recorded in the office of the clerk of the county court. Commissioners were appointed to build courthouses and jails in the newly organized counties. It was shewn, by the records of the county court, produced from the office of the clerk of the court for Barnwell district, that the court was first organized for the county of Winton on the 17th of October, 1786. A registration book was opened and begun the 18th of October of the same year, as appears by a minute made therein. The first registration of a deed bears date in. January, 1787. On this evidence, the copy deeds were admitted in evidence.
    “ The plaintiffs proved that Nathaniel Twining died in January, 1818, and that Mary Ann Hill, the wife of the plaintiff, was his posthumous child, born the 28th February, 1818. The plaintiff’s wife attained her full age the 28th February, 1839. The trespass was admitted, and it was also admitted that, against the plaintiff’s wife, the defendants had had an adverse possession, sufficient to bar the action, under the late decision of the Appeal Court, which allows an infant five years, after attaining full age, to bring suit for land. The plaintiffs, in reply, proved that Nathaniel Twining had another daughter, Anna, who married one Talbot, and died in the life-time of her father. Anna Talbot left, surviving her, a daughter, Sarah Ann Talbot, who was born the 8th March, 1807, and in May, 1823, married George W. Lamar. Sarah Ann Lamar died in November, 1833, leaving, surviving her, her husband and four children, John, born 26th February, 1824; James, born 6th June, 1825 ; Albert, born 11th June, 1830, and Matthew, born 28th September, 1833; all of whom are now living.
    
      u On this case, the only question was, whether the minority of the children of Sarah Ann Lamar protected the title of Mary Ann Hill, the wife of the plaintiff, from the operation of the statute of limitations ; and it was held that it did. The general rule is, that the minority of one tenant in common will protect the rights of his co-tenants against the operation of the statute of limitations. The rule is not limited to cases in which the co-tenants are co-plaintiifs. If Sarah Ann Lamar had brought suit to recover her distributive share of the land before 1839, and more than five years after she had attained full age, the minority of Mary Ann Hill would have protected her title against an adverse statutory possession. The rule, it seems, would, in like manner, protect the title of Mary Ann Hill, by the minority of the children of Sarah Ann Lamar. A verdict was accordingly rendered for the plaintiffs, for one-sixth part of the land claimed, being Mary Ann Hill’s distributive share of the land.”
    The defendants appealed, and now moved for a non-suit, or new trial, on the grounds :
    . 1. Because his Honor, the presiding Judge, erred in deciding that a copy deed, certified by the register of mesne conveyances of Charleston district, from Hughes to Twining, for the land in question, was admissible, and compétent evidence — whereas, the defendants submit that the original was not accounted for; and that the register’s office in Charleston was not the proper and legal office for the registration of that deed.
    2. Because the plaintiffs were barred by the statute of limitations, and his Honor erred, in holding and charging the jury, that the plaintiffs were protected and the statute suspended, by the minority of the children of Lamar, after the death of their mother, and that their mother’s right was protected by the minority of Mrs. Hill, the plaintiff, during the adverse possession.
    3. Because his Honor erred in holding, that the minority of one tenant in common, though not a co-plaintiff, would protect the plaintiffs from the operation of the statute of limitations ; whereas, it is submitted, that the minority of one tenant in common will not protect the rights of others from the operation of the statute, even when they are co-plaintiffs.
    
      4. Because, by the case made, the defendants were entitled to a nonsuit, or a verdict, and that the decision of the cause was contrary to law and evidence.
    
      A. P. Aldrich, for the motion,
    cited 1 Bail. 192 ; 1N. <fc McC. 296 ; 1 McC. 139 ; 3 Rich. 418, and contended that the minority of Mrs. Lamar’s children could not protect Mrs. Hill. Mrs. Lamar was the party protected when she died ; she had no power to protect Mrs. Hill, and how could she transmit to her heirs a power which she did not herself possess ?
    
      Bellinger, contra,
    on the question whether the deeds were properly recorded, cited 1 Stat. 132, 140,185 ; P. L.-401; 2 Hill Ch. 219 ; P. L. 3; and on the question, whether Mrs. Hill was barred, 2 Hill, 333. ' .
    
      Patterson, in reply. The county court Act of 1785, requiring deeds to be recorded in the county where the lands lie, superseded all other Acts, and if Twining had no place to record his deeds, it was his misfortune. But he had a place ; the office for Winton was open in time for his deeds. Upon the question whether Mrs. Hill was protected by the infancy of Mrs. Lamar’s children, he contended that the rule that the minority of an infant will protect an adult co-tenant, applies properly only to joint tenants, and then only when the infant joins in the action. He cited 2 Taunt. 441; 5 Bac. Abr. 275; Roscoe on Real Actions, 508; 2 Stark. 508; 7 B. Munro, 236'; 13 Mass. R. 237, 371; 15 Mass. R. 272 ; 2 Johns. R. 279 ; .5 Johns. R. 160; 10' S. & R. 114; 5 Day, 211; 4 Day, 310.
   Curia, per

Withers, J.

The first question is, whether copies of deeds of lease and release from the record office in Charleston were legitimate evidence for the plaintiffs. If the originals were properly recorded in that office, the said copies were admissible under the Act of 1843, touching such evidence.

It is to be assumed that the land conveyed by those deeds was situate in the county called .Winton at the' date of them, though the same is described as lying in the district of Orangeburg.

By an Act passed the 12th of March, 1785, (4 Stat. 664,) the county of Winton was designated by boundaries, and was carved out of the district of Orangeburg. By Act of 22d March, 1786, (7 Stat. 244,) the upper line of Winton was readjusted.

That county came under the provisions of what is commonly called the County Court Act, of date March 24th, ,1785. The Act passed 12 days before, which partitioned the whole State into counties, (mainly for the benefit of county courts, which were then pronounced to have proved themselves very useful,) charged the-county court Judges with the duty of causing to be erected all necessary public-buildings for the use of the courts, and they were enjoined to select a site most convenient to the inhabitants of each county, upon which two-thirds of. the Judges were to agree, and in case of any partiality the people were to be redressed by an appeal to the' Governor and Council. The ways and means were to be derived from taxes levied by authority of the county court, the collection whereof was enforceable in manner as those levied for the direct use of the State. Such was the state of affairs in Winton county on the 12th March, 1785.

The deeds, copies, of which were received in evidence, bore date 13th and 14th. July, 1786. The first county court held for Winton was on the 17th October, 1786. The bond of the clerk of that court,- as recorded in a book yet in existence, was dated 18th October, 1786. Some minutes appear as of October of the same year — and the first registration of a deed there appearing is of date January, 1787.

The date of plaintiffs’s deeds, therefore, is something more than three months anterior to the earliest organization of the county court for Winton, and the qualification of a clerk and register. By a clause in the County Court Act, such .deeds were required to be recorded, within 6 months, in the register’s office of the county where the land was situate, and the probate was required to be before county court Judges. Notwithstanding this general provision of the registry law, it cannot be. a sound construction to hold that it required an impossibility. Twining, when he received his deeds, could not conform to it. At that time, Winton, judicially considered, was in embryo — when the judges for it were appointed, does not appear — what space of time they would occupy in organizing it completely, Twining could have no means of knowing — he could not foresee that this would be accomplished within the 6 months allowed him for recording — the register was required to keep his office at the court-house, the judges to sit there, and probate made before them — and although the event proved that a session was holden before the 6 months expired, it seems probable that the courthouse was not completed within that time, from the date of the deeds, and we ought not to assume that Twining, in the circumstances of his case, having a right and an interest to record his deeds forthwith, should anticipate the practicability of making probate, and of registering them at Winton, within the time prescribed. This Court concludes, from such considerations, that the registry of the said conveyances was properly made in Charleston, and that copies were therefore admissible under the Act of 1843.

Although registers were to be appointed for each district by the constitution of 1778, it does not appear that any was appointed for Orangeburg while Winton was a part of it — nor does the revocation of the office of register for Orangeburg district, by Act of 1791, furnish any evidence that the office itself existed before Winton county was cut out by Act of 1785, or at the date of the deeds.

The question of far more importance is that which arises from the title claimed for defendants, by reason of adverse possession, which (it was admitted) had become effectual to bar the right of entry on the part of plaintiff’s wife, if she had been exclusively seized. When Twining died, in 1818, the land descended to a grand-daughter, (Talbot,) born in 1807, and Mrs. Hill, the co-plaintiff here, who was bom in 1818, in the month following next after her father’s death. Mrs. Hill’s right of entry continued unimpaired up to February, 1844. Her niece (once Miss Talbot, but who had become Mrs. Lamar,) died in November, 1833, leaving children some of whom are yet minors; so that although, by several descents cast, different persons had become tenants in common with Mrs. Hill, and, as such, seized with her of the fee, the disability of minority, on the part of some tenant in common seized of the fee, had existed continuously from the death of Twining to the present day. No minor co-tenant is a co-plain-tiif with Mrs. Hill.

The question is, can she avail herself of the disabilities that have existed, and which will be comprehended from the foregoing statement, in manner following, to wit: by casting the protection of her own minority over Mrs. Lamar’s right of entry up to the death of the latter in 1833 (who would otherwise have been barred in March of that year); and then by borrowing the protection of the minority of Mrs. Lamar’s children, which has existed thenceforth ?

The opinion of a majority of us is, that this question is concluded, in favor of these plaintiffs, by a current of decision in this Court. It begins with Gourdine vs. Theus, 1 Brev. 326, is traced to Lahiffe vs. Smart, 1 Bail. 192, (when it was said the doctrine had been recognized five and twenty years,) to Thomson vs. Gaillard, 3 Rich. 418 (in 1832); and is fully recognized in Henry vs. Means, 2 Hill, 328 (in 1834). This last case related to personalty, and is contrary to that of Gourdine vs. Graham, (1 Brev. 329,) which was, perhaps, unknown to the Court that decided the case of Henry vs. Means. We do not mean, however, to shake in the least the latter case by the foregoing observation.

It is suggested that there our rule, on this point, should be confined, at any rate, to an estate in joint tenancy, in its technical sense, and that its application to one of tenancy in common was inadvertent. The first case (Gourdine vs. Theus,) where the doctrine was adjudged, was undoubtedly a tenancy in common. The land then in question had become disburthened of all the trusts of a marriage settlement, the limitations therein created having become totally exhausted, and it had descended, by intestacy, to the next of kin, collateral, of the first tenant in fee. Now no estate in joint tenancy can exist, except by purchase. It never can arise by descent cast. What may have been the nature of the estate protected by a minority in the case of Lahiffe vs. Smart, does not sufficiently appear from the report, but the defendants contended they had become tenants in common with the infant. Whether that had arisen out of-the destruction of a joint tenancy, we cannot now say.

In those Courts, however, which hold a doctrine contrary to ours, an estate in joint tenancy derives no peculiar favor from the minority of one tenant, but rather the reverse, upon the principle that each is seized of an undivided moiety of the whole, and not of the whole of an undivided moiety; insomuch that, by Stat. 3 & 4 W. IY. c. 27, sec. 12, the possession of one joint tenant, tenant in common or co-parcener, is not to be regarded as the possession of another, and this for the purpose of preventing the statute of limitations from running against them. Tide Crabbe, sec. 2305.

We are not without an example of what is considered a peculiarity in this case — and what has been called in the argument cross protection, for so was the case of Thomson vs. Gaillard. But we probably have no case in which the protection of minority in a co-tenant has been adjudged to save the right of the other, which latter sues alone, and does not join the minor co-tenant. Our first case (Gourdine vs. Theus) was this: — Gour-dine derived title from four females, who had acquired the land as co-heiresses” (to use the language of the case) of Margaret O’Neal, the title of three of whom had been saved against adverse possession by the minority of the fourth. He recovered the whole land. We may suppose that he would have been confined to the portion of the minor if the doctrine of Lord Mansfield in Roe vs. Rowlston, (2 Taunt. 441) had prevailed— for, in such a case, the plaintiff was allowed to recover only the moiety of the minor parcener. On the other hand, we have cases to the effect, that when a joint action is brought by two, and one only can plead the protection of minority, it shall avail neither (vide Marsteller vs. McLean, 7 Cran. 156 — founded on Perry vs. Jackson, 4 T. R. 516). Those who hold that joint tenants must sue jointly, and also hold the doctrine last adverted to, impale them upon one or other horn of a dilemma — and we have already seen that they have been relieved from the hard necessity, in England, by statute. In cases of coparcenary, or tenancy in common, each has been allowed, to bring his several action, and such ds our rule.

The doctrine established by our cases hereinbefore cited, we think may be rested upon the following legal considerations:— A title to land from the State, draws with it to the grantee the seizen, or actual legal possession. The grantee is, therefore, in possession until he be ousted by some one actually entering, and holding adversely, that is to say, as of right, from which time the statute begins to run in favor of such actual possession, and upon the determination of the statutory period, the grantee is disseized or barred of his right of entry — that is, in one sense, he cannot recover the possession at law, though he may establish a title. It may be conceived that the disseizor has invested himself with the right or title of the true owner, when his possession has manifested the true characteristics of adverse occupation. What are those characteristics ? They appear to be well set forth in Hawk vs. Senseman, (6 S. & R. 21) to wit, an adverse possession must be “an actual, continued, visible, notorious, distinct and hostile possession.” There is, perhaps, not a 'word of surplusage in this definition. The substratum of it is, that the owner, who is thus to be ousted, shall, by the nature of the possession, have notice of the infringement of his right, of the fact of infringement, and the definite extent of it. Now conceive the true owners to be co-tenants — neither having actual possession, and one of whom, during the whole course of the presumed adverse possession, is á minor. Against him there can be no adverse possession. No laches can be imputed to him— he is presumed not to be cognizant of his rights, nor of the necessity and mode of vindicating them — and this by the general law. No designated specified acre belongs to the adult — nor any one to the minor. Now where is the “distinct, visible” line of demarcation, according to which the adult co-tenant is ousted? Take any acre in the whole tract, even if the adverse possession is assumed to be co-extensive with the whole, and has not the minor an undivided interest in it? It is tobe remembered that one co-tenant cannot sue another without actual ouster. So his possession can never be adverse until it shall grow out of such ouster. Neither, in the case supposed and that now before us, is in possession actually. Yet if the defendants in this case have held adversely against the plaintiffs, and are clothed with Mrs. Hill’s seizin or title,, they have effected an ouster of them, and, nolens volens, have become co-tenants with a minor — and this by adverse possession, which has not designated a single acre as exclusively their own. It is not an apt answer to say, the inference arises that the defendants have acquired the title of Mrs. Hill, which is the case where the lapse of twenty years presumes a grant or deed. The true view of the protection derived from adverse possession seems rather to be not that it implies the acquisition of title, but that it bars the assertion of title by the legal owner. Nor does it follow that any interest in land, which one may sell, another can acquire by adverse use; for though he, in remainder or reversion, might join the tenant for life in granting an easement over the locus in quo, yet adverse enjoyment of it, while tenant for life is in possession, will not bind the owner of the absolute fee, according to the doctrine of the English courts, in applying the Stat. 2 & 3 W. IV, c. 71, for shortening the time of prescription. They hold thptt such a right, which is also based on adverse use, if acquired at all, must be absolute against all the world. The cases are cited by Best on Presumptions, while treating of the said statute.

If these suggestions be well founded, it would seem that the user or possession of the defendants has been wanting, as against these plaintiffs, in one or more of the essential qualities of an adverse use or possession, according to its true import. If so, then these plaintiffs were not thereby divested of their seizin, and, therefore, are not defeated by omitting to join with them the minor tenants in common. At any rate we cannot withdraw the present cause from the principle that rules the like case preceding it.

That such succession of minorities, re-acting on each other, may operate inconveniently, and somewhat adversely to the policy of statutes of limitation, is a consideration that affected Lord Mansfield in Roe vs. Rowlston, and various American courts. It probably produced the reluctance acknowledged, by our own Court, in Lahiffe vs. Smart, in yielding to the rule which was then said to have prevailed so long, and it was likewise distinctly in the mind of the Court in Thomson vs. Guillard. That there¿is force in the consideration, we do not deny. The same has been conceded on prior occasions. But we cannot, on that account, undertake to expunge a rule that has taken such deep root in our jurisprudence.

The motion is refused.

O’Neall, Frost and WhitNer, JJ. concurred.

Evans, J.

dissenting. I do not concur in the opinion of the Court, and propose to state my views very concisely. There are two questions: — First. Was the deed recorded in the proper office? Second. Does the infancy of the Lamars, who are not parties to the record, protect the rights of the plaintiffs from the operation of the statute of limitations?

I can find nothing in the printed Acts establishing any office for recording deeds out of the city of Charleston before the county court Act of 1785, and, therefore, I assume that the office of the Secretary of State was the proper office for registry before that time. But when the county court Act required all deeds to be recorded in the county where the land lay, this was a repeal of the old law, and the establishment of a new office of registry; and I am at a loss to conceive how the registry of a deed in the office in Charleston was any more a compliance with the law than the registry in any other office.

The object of registry is to give notice, and no man would think of going to the office in Charleston to lopk for a deed made after the Act, than he would think of going to Edgefield, or anywhere else. But it is said the county court for Winton was not organized until November, 1786, and this deed was made in July. That is true, but there was an office for registry of deeds opened for Win ton before-the expiration of six months, within which the deed should be recorded, and, therefore, it cannot be alleged that he could not have recorded his deed as the law required. But even if no office had been opened within six months, that might furnish a sufficient reason for not recording within the time, but is certainly no authority to dispense with the law which required his deed to be recorded in the county where the land lay. The Act of 1791, (7 Stat. 269) for suspending the county courts for Winton and Orange, directs that the records of the said county shall be transferred over and kept by the register of mesne conveyances for Orangeburg, in his office, which clearly implies that there was an office for the registry of deeds established for that district; but I have'seen no Act of the Legislature establishing such an office, although the existence of such an office is clearly declared by this Act. The constitution of 1778 requires that registers of mesne conveyances should be appointed for the several districts then existing, and I think it very likely that such an officer had been appointed-, although there is nothing in the printed Acts on the subject.

2. That the infancy of one joint tenant will prevent the statute of limitations from barring the action, and that the same result will follow where the plaintiff derives his title from several, some of whom were infants, I suppose may be assumed to have been decided in many cases. But that the decision, except in cases of joint tenancy, has no English authority to support it, I think there is no doubt. In Roe vs. Rowlston, (2 Taunt. 441,) it is said, if two joint tenants be disseized, and one enter, it is the entry of both, but it is otherwise of parceners. The disability of one shall not preserve the rights of the others. I have not examined the American cases, but numerous authorities were quoted at the bar to show that in most, if not all of the States, except, perhaps, Kentucky, the same rule prevailed.

That such a construction is against the policy of the statute of limitations, is, I think, very clear. If, before the youngest of the Lamars is barred, Mrs. Hill should die, leaving an infant child, another twenty-six years would be added to the time necessary to quiet the title of the present occupants of the land, and in this way a century may elapse and the statute operate as no bar, on account of these successive intervening disabilities. But it is said the law has been so settled, in the case of Gourdine vs. Theus, and Thomson vs. Gaillard. Although it may be right, on the principle of stare decisis, that these cases should not now be overruled, yet that is no reason we should go any further in a wrong direction than these cases require.

In Gourdine vs. Graham, (1 Brev. 329,) which stands next to the case of Gourdine vs. Theus, it was decided, if one of several joint owners of personal property be an infant, that shall protect the rights of the others.” But this doctrine was overruled in Henry vs. Means, (2 Hill, 334,) where it was held that, even where the action was joint, the adult plaintiffs were barred, and the infants alone protected. Judge Brevard’s reports have been published since that case was decided, and as Gourdine vs. Graham is not mentioned in it, it is very likely it was unknown to the Court.

There is no difference in principle between real and personal estate, and one rule should govern in both cases. To have a different rule, applicable to different kinds of property, where no reason for making it can be given, is calculated to deform instead of maintaining the symmetry and beauty of the law as a system of reason and logic. One or the other of the cases ought to be reversed. In Means ads. Henry, an attempt is made to sh ew that there was a reason for making the distinction, and the same reason is repeated which had been before given in Thomson vs. Gaillard, that each is entitled to the possession of the whole, and, as against a trespasser, if any one of the joint owners sue, as he may by our law, and recover, he shall have a writ of possession for the whole. As to the right of possession, that applies as much in one case as the other, and as to the writ of possession, if one who recovers a part can have forcible possession of the whole by law, I have found no authority to support it.

In Saul vs. Dawson, (3 Wils. 49,) the plaintiff, as tenant in common, recovered possession of five-eighths of a cottage. A writ of possession was executed by the sheriff, who turned the defendant out and locked up the door. Curia. This is wrong, the writ ought to have pursued the verdict. Let there be a rule to the sheriff and the lessor of the plaintiff to restore the tenant to the possession of three-eighth parts of the premises, otherwise, he must, of necessity, bring another ejectment for them.

Runnington says the writ of habere, facias possessionem is a writ of execution. I am sure I need not quote authority, that the writ of execution must follow the judgment, and that must follow the verdict. How, then, can the execution authorize the sheriff to do more than put the plaintiff in possession of what he has recovered 1 If it can, what is meant in the case of Saul vs. Dawson, when the Court say — the writ of possession should pursue the verdict, and that the defendant should be restored to the possession of the three-eighth parts which the plaintiff had not recovered 1 If one joint tenant or tenant in common ousts another, and in an action he recover a part, will the writ go to give him possession of the whole ? I suppose no one will affirm this, yet, in our practice, it will not appear from the record that he was a joint tenant, or that he had been ousted by the defendant. The verdict establishes his right to a part, and for that part, and no more, he shall have his writ of execution. If the plaintiff recovers the whole, he shall have possession of the whole, and the sheriff shall turn every one out; but if he recover part, then he shall have joint possession of that part with the defendant, as declared in Saul vs. Dawson. It is said that the defendant’s possession shall stand in place of title until the plaintiff proves a good title in himself. To the extent that such proof is made, the presumption is rebutted, but no further. It may be supposed that what is here urged may conflict with the doctrine that one joint owner cannot sue another, except in cases of ouster; but that doctrine has nothing to do with the question. It matters not what title the defendant has. He has a right to stand on the presumption arising from his possession, as to the residue of the interest which is not in the plaintiff on the record. It is somewhere said that the recovery by the adult, will enure to the benefit of the infants who are not parties. I do not see how that can be. They are not parties on the record, and I do not see that they can claim any benefit from the record. It will not appear how the plaintiffs claim, or on what title they recovered, unless we admit parol evidence of what was proved on the trial, which will hardly be admitted. If the verdict had been for the defendant, that will be no bar to the infants if they should hereafter sue for their share, as they may do under the authority of the case of McFadden vs. Haley, (2 Bay, 457.)

There are many other views which might be presented, but as I intended to state my opinion, rather than to argue the questions in detail, I forbear to notice them.

I admit that where the infant’s title is put in issue by the record, there we are bound to decide, on the authority of Gourdine vs. Theus, and the other cases, that it will prevent the bar of the statute as to the other tenants in common or coparceners. But I think I have said enough to shew that those cases (to say the least) have been decided without authority, and that very doubtful reasons have been given to support them. But as the reversal of a decision made many years ago may serve to unsettle titles, they ought not, perhaps, to be reversed. But as the same principle has been reversed in relation to personal estate, I do not know why it may not be done in relation to real estate, especially as it would produce uniformity on a subject about which there should not be a different rule.

This case, I think, is entirely clear of any difficulty arising from those decisions. Here the infants are not parties. The plaintiffs do not represent their title. In fact, they set up a hostile claim and demand the whole land. To the defendants’s plea of the statute of limitations, is it any answer to say, that although the statutory period has run out as to them, yet they are not barred because a third person, who is a stranger to the record, is an infant 1 The true question is, whether the plaintiffs are barred, and if they are, the verdict should be for the defendants. The title of the infant, which alone, I think, the statute was intended to protect, is in no way affected by such decision. He may at any time recover, if he chooses to bring his action. The privilege of infancy is personal, and no one else should be allowed to take shelter under it, to protect himself against his own laches. I am, therefore, of opinion, on both the grounds stated, that the defendants’s motion for a nonsuit should be granted.

Motion refused.  