Coverture. Effect of, as to wife surviving husband. No extension for disability beyond forty years. Sect. 17. disability, the heir must assert his right within ten years after the death of the ancestor (o), and cannot. assert it after the expiration of that period, although himself continuing under disability (p). Where the period of limitation has expired against a husband possessed of chattels real in right of his wife, and he afterwards dies leaving her surviving, the period will not be extended for her by reason of her disability; for whilst in the case of freeholds her disability would secure her the extension, for they are both seised, but in her right (q), in the case of chattels real he alone is possessed in her right (r), and he being barred, she would be also (s). It has been said, however, that the legal possession of such chattels is in both, but that the estate is in her alone (t). But the Year Books (u), and, as just shown, Lord Coke, are distinct authorities against that view. A modern writer (x) also says, "the term remains in the wife, notwithstanding the coverture (y), though subject to the disposing power of the husband." Rolle, however, says "Si un feme termor prist baron, uncore le terme continue en luy," and refers to the Year Books just cited; which show, however, distinctly that during the coverture the term is in him alone, but if he die without disposing of it in his lifetime, and she survive, she will have it (z). The period, however, in which the right, after it first accrues, is to be asserted, is to be within forty years afterwards, although the claimant under disability when (0) Hogan v. Hand, 14 M. P. C. C. 310. (p) Devine v. Holloway, Ib. 290. (q) Polyblank v. Hawkins, (r) Co. Litt. 351 a. See also Hales v. Petit, Plowd. 253; Doe d. Wil kins v. Wilkins, 5 Nev. & M. 436. (t) See 5 Nev. & M. 436, n. (a). (u) 7 Hen. 6, 2; 9 Hen. 6, 52 b. (a) 1 Bright's Law of Husband and Wife, 94, n. (a). (y) 1 Roll. Ab. 342 e. (z) Co. Litt. 351 a. the right so accrues may remain under any one or more of such disabilities during the whole of the forty years, or the ten years from the time the disability ceases (a) be not expired (b). Where a man and his wife seised in fee in her right Coverture. discontinue the possession, the coverture of the wife Wife's inheritwill not, after the lapse of forty years, extend the period of limitation for the heir (c). This decision, he says, ance. Bramston. The case of Doe v. Bramston has been the subject of Doe v. comment by an able writer. appears to be open to much observation. To pass over the preliminary objection, that no inquiry seems to have been made whether the possession was adverse at the time of the passing of the act, and therefore, whether the 15th section did not apply (the action was commenced in 1835), it is to be observed that the judgment of the court was founded on the 17th section, which has for its object merely to prevent the period of limitation from being extended by disabilities beyond the period of forty years. In the case before the court there was no disability in question. On the birth of the son the husband had become tenant by the curtesy for his own life, and in his own right, during which time neither the wife nor her heir could be entitled to enter, and this occurred before the commencement of the adverse tenancy. After the birth of issue and during her husband's life, therefore, the wife was not under disability within the 16th and 17th sections, because she had no right to make an entry (d). The wife's title having first accrued to her son in possession on the death of the husband, the case comes within the protection of the 5th section, which gives the reversioner a new right on the determination of the particular estate, (a) Sect. 16. (b) Sect. 17. (c) Doe d. Corbyn v. Bramston, 3 Ad. & E. 63. (d) See Bac. Ab. Curtesy (E); 2 Inst. 301, 309. although he, or one through whom he claims, was formerly in possession (e). If the case had been one of a conveyance by the husband of the wife's estate, or had depended on the 21 Jac. 1, c. 16, these observations would have been pertinent and well founded (ƒ). But under the circumstances, and depending on the 3 & 4 Will. 4, c. 27, are not well founded. The judgment is not founded merely, or even principally, on section 17 of this statute, but on the sections 2, 3, 16 and 17, and the facts of the case bring it precisely within these sections. The persons actually in possession were not shown to have held under the ancestor of the plaintiff, and the title of the ancestor rested on no documents, but was merely evidenced by possession at an early period; and the report shows, and both sides seem to have admitted, that, at the passing of this act, the possession was adverse. The estate was the wife's, and she and her husband, the parents of the lessor of the plaintiff, having the fee in her right, were in possession, and more than forty years before the action was brought, discontinued the possession, and never afterwards acquired it, or exercised upon the property any act of ownership. Now by section 2 the action is to be brought within twenty years after the right to bring it first accrues. By section 3, when the person through whom another claims has been in possession, and while entitled thereto has discontinued the possession, the right is deemed to have first accrued at the time of such discontinuance of possession. By section 16, the disability of coverture extends the period for ten years after the disability ceases. But by section 17, the disability, in no case, can preserve the right beyond the period of forty years. (e) 1 Byth. Conv. by Sweet, 38. (f) See Jumpsen v. Pitchers, 13 Sim. 322; Ravald v. Russell, 1 You. 9; Ashton v. Milne, 6 Ib. 369. And the section 17 is unequivocal, and one of its objects was to avoid the necessity of inquiring into facts of so ancient a date; and where a husband and wife seised in her right discontinue the possession of land, it is no answer to the positive limitation in this clause that the owner, being a married woman, her husband was tenant by the curtesy and their son's right of possession does not accrue until his father's death (g). retroactive. It has been contended that this section 17 is prospec- That section tive only, and that therefore, notwithstanding it was treated in the case of Doe v. Bramston as retrospective, the question, that it applies to only those disabilities arising subsequent to the act, is still open (h). It is submitted, however, that the section cannot be so interpreted (i). A lease by a lunatic cannot be impeached after the Lunacy. lapse of forty years. But a covenant for perpetual renewal contained in the lease is simply void and acquires no validity (k). for accumu Accumulative disabilities in the same person will No extension not extend the period of limitation beyond the forty lative disabiyears (7), as might have happened under the law prior to this statute (m). Disabilities in persons claiming through the person to whom the right has accrued dying under disability, did not before this statute (n), and do not now (0), extend the period of limitation. lities in same person, or claiming other dying under, after right accrued, through an The disability of one of several coparceners (p), or —or of one other persons (7), did not before, and will not since, the coparcener, (g) Doe d. Corbyn v. Bramston, 3 Ad. & E. 63. (h) 2 Smith's L. C. 5th ed. 623. (i) Vide post, Chap. IX. (k) Fulton v. Creagh, 3 J. & L. 329. (1) Devine v. Holloway, 14 M. P. C. C. 290. (m) Lessee of Supple v. Ray mond, Hayes' Ir. Rep. 6. See also (n) Doe v. Jesson, 6 East, 80. (p) Roe d. Langdon v. Rowls- (q) See Perry v. Jackson, 4 T. R. 516. -nor under sect. 15; -nor when ensuing after 3 & 4 Will. 4, c. 27, s. 12, extend the period of limitation in favour of the other or others. The section 15 contains no exception of disabilities, and the further term of five years given by this section is not extended by reason of any disability of the claimant (7). If a disability ensues after the right has first accrued, right accrued. but before the passing of the act, no extension of the period of limitation is given (r), for when the time has commenced running it does not stop (s). Disabilities may be cumulative. No distinction between voluntary and involuntary ones. Disabilities may be accumulative. Infancy, coverture, lunacy, absence beyond seas, may co-exist in the same person (t); and yet, as any of them cease, the privilege attached thereto will cease also, whilst the others may remain (u). No distinction is made between disabilities which are voluntary, as marriage, absence beyond seas, and those which are involuntary, as idiotey, lunacy, unsoundness of mind; for, as Lord Kenyon said (x), to refine and to make nice distinctions between such cases would be mischievous; and, as O'Grady, C. B., also said (y), lead to endless difficulties, as in the cases of persons of nonsane memory, when the disability often arises from the act of the party. In both cases, when the disability is once removed, the time begins to run (z). The disability of imprisonment is one of the disabilities mentioned in the statutes as to fines (a) and in the old Statutes of Limitation (b), but is omitted in the modern Statutes of Limitation (c). And even in those |