
    *Doe, on the Demise of Thompson and others, v. Gibson and Jolley
    Plaintiff in ejectment showing the original grantee to be within the exception of the statute of limitations, proof that others deriving interest under the grantee are not within such exception, is unnecessary. If relied upon to defeat recovery, it must come from the defendant.
    
      Quasre, whether English statute of uses was ever in force in Ohio ?
    This case was adjourned from Highland county. It was a motion by the defendants for a new trial where a verdict passed pro forma upon the following facts:
    The plaintiffs deduced title from a patent to Ann Byrd, administratrix of Otway Byrd, deceased, with the will annexed, in trust for the uses and purposes declared in the last will and testament of Otway Byrd, deceased. This patent.was dated January 31, 1803. It was admitted to include the lands in question, and it was also admitted that Ann Byrd, the patentee, resided in Yirginia, and had never been in Ohio. There was no proof before the court of the nature of the bequests in the will of Otway Byrd, and none that any of the persons for whose use the lands were granted had ever been in Ohio, or where was their place of residence.
    For the defendants it appeared that they claimed title to the lands under a patent dated February 23,1810, founded upon a survey made April 27, 1800; that under this-claim of right they took possession in the year 1803, and had ever since remained in possession. The ejectment was brought in 1825.
    
      Brush, Fitzgerald, and Collins, for defendants:
    In support of the motion for a new trial, relied upon the act of limitation of 1804, which limits the bringing of ejectment to twenty-one years where there is an actual adverse possession.
    They maintained that Ann Byrd, the patentee, did not take the legal title, but that in virtue of the statute 27 Hen. VIII., chap. 10, for the direction of uses and trusts, the legal title vested in the devisees of the will of Otway Byrd. -And the plaintiffs not having shown where these devisees resided, or that they resided out of the state, had not brought themselves within the proviso of the statute, and could not recover.
    ' They contended that the statute of uses was in force in 1803, when the grant to Ann Byrd emanated by special adoption *of the governor and judges, and also upon general principles. They cited 1 Swift Dig. 133; 2 Swift Dig. 104, 105; 2 Blac. Com. 327; Kirby, 368; 6 Mass. 31; 7 Mass. 189; 12 Mass. 104, 108; 14 Mass. 491.
    Having proved the defendants’ possession, so as to bring them within the statutory bar, it was incumbent on the plaintiff, and the burden of proof was thrown upon her, to make a case which would bring her within the exceptions of the act. 4 Wheat. 230, 234.
    Statutes of limitation are beneficial, and are to be treated as statutes of rest and repose. 4 Term, 308; 1 W. Black. 287; 5 Bin. 580; 8 Cranch, 74; 15 Ves. 192.
    Bond, for plaintiff, denied :
    That the statute of uses was ever in force in Ohio, so as to vest the legal estate conveyed to a trustee in the cestuy que trust. He maintained that if the right of the patentee was saved, all rights dependent upon or derived from that right were also protected. “ Beyond sea ” and “ out of the state ” are analogous terms. Cranch, 176; 3 Wheat. 541; 2 Bibb, 207.
    It is settled that in the case of a public grant, no matter when the possession commenced, the statute only begins to run at the date of the grant. 2 Marsh. 506. So whei'e the grantee is protected the statute can only begin to run at the date of the conveyance from the grantee.
   The Court were' divided in opinion upon the point whether the statute of uses, 27 Hen. VIII., chap. 10, had ever been in force in Ohio. Two judges held that that statute was in force in Ohio from 1795 to January, 1806, for all the purposes that it was in force in Yirginia or England. The other two judges held differently.

But the judges were unanimously of opinion that, it being shown that the grantee, Ann Byrd, was within the exception of the statute, it was incumbent on the defendants to show that those whose interest was dependent on hers were not within the exception. Consequently the motion for a new trial was overruled, and judgment given for the plaintiff. 
      
      Note by the Editor. — English. Statute of Uses never in force in Ohio, vii. ¿75, part 1.
     