Opinion
November 28, 1906.
Elmer P. Smith, for the plaintiff.
J. Mortimer Bell, for the defendant.
1. The adverse possession from which the plaintiff claims title began April 29th, 1865, at the latest, which is over 41 years ago. The adverse title is therefore made out, whether the alleged fee owner against whom and his heirs such possession ran, died after or before that time. If he died after, then the cause of action had accrued during his lifelife, and his heirs, whether infants or adults, were limited to the time limited to their ancestor to bring ejectment, viz., 20 years from the time the cause of action accrued to him. Where an adverse possession begins to run in the lifetime of the ancestor and the land descends to an infant, the latter may bring ejectment only during the period limited to the ancestor. Such disability does not extend the time; and the same is true of all the disabilities ( Peck v. Randall, 1 Johns. 165; Jackson v. Moore, 13 id. 513; Demarest v. Wynkoop, 3 Johns. Ch. 129, 136, et seq.; Bradstreet v. Clarke, 12 Wend. 602, 636). And if the said fee owner died before the adverse possession began, leaving infant heirs, the case is not changed. If a right of action in ejectment accrue to an infant immediately after his birth (which is the extreme case), the time limited to begin the action is the 21 years of infancy plus 10 years (Code Civ. Proc. § 375); and the infant heirs of an infant are limited to the period limited to their infant ancestor, but not to be extended more than ten years after his death (Id. § 375). Disability cannot be added to disability. If that were permitted a right might travel through minorities for an indefinite time — for two centuries, Lord ELDON said ( Demarest v. Wynkoop, supra, p. 139).
2. Aside from the question of adverse possession, the entry was at least that of a mortgagee made peaceably and lawfully, for the mortgagee's warranty deed assigned the mortgage, at least; and therefore the possession was that of a mortgagee in possession, in which case the same limitation of a suit to redeem obtains as in the case of an action in ejectment, viz., 20 years (§ 379), with a possible addition of only one year in the case of infancy (§ 396); and after such suit is barred the title is in the mortgagee or his grantees or successors in possession.
3. There remain only the improbable disabilities of insanity and imprisonment. If either existed when the adverse entry was made it, or the 10 years additional given after it ceased, might exist yet in respect of an action of ejectment (§ 375), for manslaughter in the first degree was then punishable by imprisonment for any number of years not less than seven, in the discretion of the court. But it could not still exist in respect of the action to redeem, for there the 20 years' period of limitation cannot be extended for more than five years by insanity or imprisonment.
The plaintiff is entitled to judgment.
HIRSCHBERG, P.J., WOODWARD, RICH and MILLER, JJ., concurred.
Judgment for the plaintiff on submission of controversy.