1817.

M'Iver

V.

Ragan.

Feb. 11th.

of this court in the case of Patton's Lessee v. Easton."

Mr. Jones and Mr. Thomas, contra. The exceptions in the statute of limitations, (which statute gives the right of property as well as of possession,) are expressed by the legislature, and cannot be multiplied by implication. But supposing the statute not to apply to lands within the Indian boundary; the lands held by the defendant was not within the Indian boundary, and therefore the limitation applies to it. If the plaintiffs had instituted a suit, they might have entered the Indian country, under an order of court, and surveyed the lands. The character of the defendants' possession, and not that of the plaintiffs, is to determine the right of property.

Mr. Ch. J. MARSHALL delivered the opinion of the court, and, after stating the facts, proceeded as follows:

It is contended, by the plaintiffs in error, that the judge misconstrued the law in his instructions to the jury.

The case is admitted to be within the act of limitations of the state of Tennessee, and not within the letter of the exceptions. But it is contended that, as the plaintiffs were disabled, by statute, from surveying their land, and, consequently, from prosecuting this suit with effect, they must be excused from

a 1 Wheat. 476.

bringing it; and are within the equity, though not within the letter of the exceptions.

The statute of limitations is intended, not for the punishment of those who neglect to assert their rights by suit, but for the protection of those who have remained in possession under colour of a title believed to be good. The possession of the defendants being of lands, not within the Indian territory, and being in itself legal, no reason exists, as connected with that possession, why it should not avail them and perfect their title as intended by the

act.

The claim of the plaintiffs to be excepted from the operation of the act is founded, so far as respects this point, not on the character of the defendants' possession, but on the impediments to the assertion of their own title.

Wherever the situation of a party was such as, in the opinion of the legislature, to furnish a motive for excepting him from the operation of the law, the legislature has made the exception. It would be going far for this court to add to those exceptions. It is admitted that the case of the plaintiffs is not within them, but it is contended to be within the same equity with those which have been taken out of the statute; as where the courts of a country are closed so that no suits can be instituted.

This proposition cannot be admitted. The difficulties under which the plaintiffs laboured respected the trial, not the institution of their suit. There was no obstruction to the bringing of this ejectment at an earlier day. If, at the trial, a survey had been

1817.

M'Iver

V.

Ragan.

1817.

M'Iver

V.

Ragan.

found indispensable to the justice of the cause, the sound discretion of the court would have been exercised on a motion for a continuance. Had such a motion been overruled, the plaintiffs would have been in the condition of all those who, from causes which they cannot control, are unable to obtain that testimony which will establish their rights. If this difficulty be produced by the legislative power, the same power might provide a remedy; but courts cannot, on that account, insert in the statute of limitations an exception which the statute does not contain. It has never been determined that the impossibility of bringing a case to a successful issue, from causes of uncertain duration, though created by the legislature, shall take such case out of the operation of the act of limitations unless the legislature shall so declare its will.

It has also been contended, that in this case the possession is not under colour of title.

The ejectment was served on Ragan, who was the tenant in possession, and, on his motion, David Mabane and John Thomson, executors of the last will and testament of James Mabane, deceased, and landlords to the said Henry Ragan, were admitted as defendants with him in the cause. At the trial they produced a grant for the land in controversy to James Mabane, and proved, "that Ragan took possession of the same, under James Mabane, the grantee, in 1804, and continued to occupy the same ever since."

It is argued that, though Ragan is stated to have taken possession under Mabane, he is not stated to

Without

McIver

V.

have continued that possession under Mabane, and 1817. this court will not presume that he did so. such presumption, his possession, it is said, would not be under colour of title, and, consequently, would be no bar to the action according to the statute of Tennessee.

The court cannot yield its assent to this hypercriticism on the language of the exceptions. The representatives of Mabane came in as defendants, and plead the general issue. They are stated on the record to be the landlords of Ragan. When Ragan is said to have taken possession under Mabane, and to have continued to occupy the land, the fair inference is that the possession was continued under the same right by which it was originally taken. Neither the statement of the counsel, nor the opinion of the court turns, in any degree, on the nature and character of Ragan's possession, but on the disability of the plaintiffs to survey their land. For all these reasons this court is decidedly of opinion, that the possession of Ragan was the possession of Mabane, and was under colour of title.

Judgment affirmed.

Ragan.

H., in contemplation of marriage with B., gave a bond for 5,000 dollars, and interest to trustees, to secure to B. a support, during the marriage, and after the death of H., in case she should survive him, and to their child or children, in case he should survive her; with condition that if H. should, within the time of his life, or within one year after the marriage, (whichsoever of the said terms should first expire,) convey to the trustee some good estate, real or personal, sufficient to secure the annual payment of 300 dollars for the separate use of his wife during the marriage, and also sufficient to secure the payment of the said 5,000 dollars to her use in case she should survive her husband, to be paid within six months after his death; and in case of her death before her husband, to be paid to their child or children; or, if H. should die before B., and by his will should, within a year from its date make such devises and bequests as should be adequate to these provisions, then the bond to be void. H. died, leaving his widow B. and a son, having, by his last will, devised a tract of 1,000 acres of land in the. Mississippi territory, to his son in fee; a tract of 10,000 acres in Kentucky, equally between his wife and son, with a devise over to her in fee of the son's moiety, if he died before he attained "the lawful age to will it away." And the residue of his estate, real and personal, to be divided equally between his wife and son with the same contingent devise over to her as with regard to the tract of 10,000 acres of land. The value of the property thus devised to her, beside the contingent interest, might have been estimated, at the time of H.'s death, at 5,000 dollars. B. subsequently died, having made a nuncupative will, by which she devised all her estate, “whether vested in her by the will of her deceased husband or otherwise," to be divided between her son and the plaintiff below, (Bryant,) with a contingent devise of the whole to the survivor. The son afterwards died, and the plaintiff brought this bill to charge the lands of H. with the payment of the bond for 5,000 dollars, and interest, to which the plaintiff derived his right under the nuncupative will of B.

By the laws of Kentucky this will did not pass the real estate of the testator, but was sufficient to pass her personal estate, including the bond.