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CLARK'S CODE OF CIVIL PROCEDURE.

The Code requires the statute of limitations to be specially pleaded, and no distinction is made between legal and equitable causes of action in this respect. Guthrie v. Bacon, 107-337.

Under the former practice in equity, advantage could be taken of lapse of time without plea, where it appeared upon the face of the pleadings that the cause of action was barred; but now there must be a plea in all cases, whether of an equitable or legal nature. Randolph v. Randolph, 107-506.

Objection cannot be taken by demurrer. -The statute of limitations must be pleaded as a defence in the answer, and cannot be set up by demurBason v. Berry, 85-124.

rer.

Nor by motion to dismiss or vacate.-The defence of the statute of limitations must be set up in the answer, and cannot be assigned as reason for a motion to dismiss. Lynn v. Lowe, SS-478.

Nor can it be set up by a motion to vacate and set aside an execution. Williams v. Mullis, 87-159.

If not relied on in the lower court.—If the plea of the statute is not relied on in the trial before a justice, it cannot be set up on appeal in the superior court without leave. Permission to do so is a matter of discretion with the judge. Poston v. Rose, 87-279.

Defendant will not be allowed to plead it, when. -A defendant will not be allowed to plead the statute of limitations when the action has been delayed at his request. Daniel v. Commissioners, 74-494; Haymore v. Commissioners, 85-268; Barcroft v. Roberts, 91-363.

Creditors' bill.-In an action in the nature of a creditor's bill, every creditor may plead the statute against the claim of every other. Woodsworth v. Davis, 75-159.

Must be proven.-When the objection that the action has not been commenced within the time limited is taken, it must be proved, if not apparent from the complaint, by the party seeking advantage from it. Lewis v. Latham, 74-283; Strauss v. Crawford, 89–149.

When it need not be set up in answer.-Where defendant claims under a grant from the state, the thirty years' possession can be given in evidence without pleading the statute of limitations. Freeman v. Sprague, 82-366.

The statute of presumptions need not to be pleaded.-It is sufficient if the facts appear in the answer from which the presumption will arise. Crawford v. McLellan, 87-169.

On running accounts.-Where there is a running account all on one side, the statute of limitations runs on each item from its date. Where there are mutual accounts, the statute runs only from the last dealing between the parties. Robertson v. Pickrell, 77-302; Stokes v. Taylor, 104-394.

Optional with administrator or executor.-While an administrator, in his discretion, may or may not plead the statute of limitation, he cannot waive his intestate's discharge in bankruptcy, since the latter extinguishes the debt. Parker v. Grant, 91-338.

NOTE.-Executors and administrators are now required to plead the statute of limitations, if available, in all actions begun after January 1, 1892. Acts 1891, chapters 92 and 356.

!

Actions

CHAPTER TWO.

ACTIONS FOR THE RECOVERY OF REAL PROPERTYTIME OF COMMENCING.

Sec. 139. When the state will not sue, thirty years' possession. C. C. P., s. 18.

The state will not sue any person for, or in respect of, any real property, or the issues or profits thereof, by reason of the right or title of the state to the same:

(1) When the person in possession thereof, or those under whom he claims, shall have been in the adverse possession thereof for thirty years, such possession having been ascertained and identified under known and visible lines or boundaries, shall give a title in fee to the possessor.

Nature of possession requisite.-Discussed. Logan v. Fitzgerald, 87-308. What adverse possession is sufficient.-Where a party ran a fence across the neck of a peninsula, partly on his own land and partly on another's, and opened a gap on his own land so as to allow his own cattle to go on the peninsula and exclude others, unless they crossed the river, this is not an adverse possession, unless the fence was made with the avowed purpose of taking possession of the peninsula. Osborne v. Johnson, 65-22.

If there has been an adverse possession for any time less than thirty years, it is not a circumstance to go to the jury from which alone, or with other circumstances, to infer thirty years' adverse possession. Melvin v. Waddell, 75-361.

Where a widow puts a son-in-law in possession of land belonging to the estate of her deceased husband, and he sells and makes title in fee, having none himself, neither his possession, nor that of those claiming under him, is adverse to the heirs of the husband, or those claiming title under them. Ibid.

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CLARK'S CODE OF CIVIL PROCEDURE.

No privity among successive tenants formerly necessary.-From an adverse possession of land for thirty years, the law presumes a grant from the state, and it is not even necessary that there should be privity or connection among the successive tenants. Candler v. Lunsford, 20-447; Melvin v. Waddell, 75-361; Davis v. McArthur, 78-367; Cowles v. Hall, 90330; Dills v. Hampton, 92-565; Davidson v. Arledge, 97-172; Pearson v. Simmons, 98-281.

A break in possession formerly immaterial.-A break of two or three years in the chain of possession for thirty years, necessary to show title out of the state, is immaterial. Cowles v. Hall, 90-330; Mallett v. Simpson, 94-37.

Contra. -Adverse possession must be continuous. A gap, occurring even during the period the statute was suspended, will destroy its continuity. The possession must be actual, open and visible and not an assertion of a mere claim, as, for instance, by the payment of taxes. Malloy v. Bruden, 86-251.

Under the present statute. -Thirty years' adverse possession, which was formerly held to be a presumption of a grant is now by statute an absolute bar against the state. But in such case the plaintiff must show privity between him and those preceding him in possession, and also that the possession was held up to known and visible boundaries. Price v. Jackson, 91-II.

Under the law formerly in force, a grant from the state was presumed after an adverse possession of the land for thirty years; and it was not necessary that the possession should be continuous or that there should be connection or privity among the successive occupants. This is now altered by this subsection, and there must now be privity between successive occupants and continuous adverse possession up to known and visible bounds. Phipps v. Pierce, 94-514.

What plaintiff must show. -In an action to recover land the plaintiff must recover upon the strength of his own title; and it is incumbent on him to show a grant from the state, or possession sufficiently long to presume a graut, or that the defendant is estopped to deny his title.-Graybeal v. Davis, 95-508.

In an action to recover land, the plaintiff may establish his title to the locus in quo: (1) by showing a grant from the state, and a regular chain to himself; (2) by showing that he and those under whom he claims have had possession under known and visible boundaries for thirty years; (3) by showing a possession of twenty-one years under color of title (which would be good against the state), and (4) by showing title out of the state and continuous adverse possession under color. Pearson v. Simmons 98-281; Mobley v. Griffin, 104-112.

Where the plaintiff showed possession in himself and those under whom he claimed, from 1820 to 1886, and a deed to himself, under a judicial sale, dated in December, 1872, but did not show title out of the state, he was entitled to recover-the defendant showing no title whatever. Pearson v. Simmons, 98-281.

In ejectment a plaintiff may show title in himself, as follows: (1) By a connected chain from the State.

(2) By showing title out of the State and that his title matured by seven years' adverse possession under color of title, by himself or those under whom he claims, before bringing his action.

(3) By showing possession for twenty-one years under color of title, in which case he need not prove title out of the State.

(4) By showing defendant to have been his tenant when the action

Recoors Property

CLARK'S CODE OF CIVIL PROCEDURE.

25

was commenced, and thus establish his title by estoppel. Conwell v. Mann, 100-234.

Defendant need not plead the thirty years' possession. -Where the defendant claims under a grant from the state, his thirty years' possession can be given in evidence without pleading the statute of limitations. Freeman v. Sprague, 82-366.

Where both parties claim title from the same source.—Where both parties claim title to the land in controversy from the same source it is not necessary for either to prove title beyond that source. Ferebee v. Hinton, 102-99.

Where the plaintiff shows from the deeds offered, or the admission in the pleadings, that both claim from a common source, he is required only to exhibit a better title in himself derived from it than that of the defendant, in order to establish prima facie his right of recovery. Bonds v. Smith, 106-554.

When both parties claim under the same owner it is not necessary to show title out of the State.. Cox v. Ward, 107-507.

Twenty-one years' possession under colorable title.

(2) When the person in possession thereof, or those under whom he claims, shall have been in possession under colorable title for twenty-one years, such possession having been ascertained and identified under known and visible. lines or boundaries.

See Malloy v. Bruden, under preceding subsection.

As to what constitutes possession.-See also Ring v. King, 20-250; Tredwell v. Reddick, 23-56; Flanniken v. Lee, 23-293; Williams v. Buchanan, 23-535; Bynum v. Thompson, 25-578; Bynum v. Carter, 26-310; Lenoir v. South, 32-237; Berryman v. Kelly, 35-269; Morris v. Hayes, 47-93; Blackstock v. Cole, 51-560; Brittain v. Daniels, 94-781; Brady v. Maness, 91-135.

As to what constitutes adverse possession.-See also Murray v. Shanklin, 20-357; Montgomery v. Wynns, 20-548; Gilchrist v. McLaughlin, 29-310; Powell v. Felton, 33-469; Loftin v. Cobb, 46-406; Smith v. Reid, 51-494; Everett v. Dockery, 52-390; Ring v. King, 20-250, Parker v. Banks, 79-480, Staton v. Mullis, 92-623; King v. Wells, 94-344; Gaylord v. Respass, 92-553; Hicks v. Bullock, 96-164; Davis v. Higgins, 91-382; Nixon v. Williams, 95-103; Page v. Branch, 97-97.

As to conflicting possession.-Under different grants or lappage, see Williams v. Buchanan, 23-535; Williams v. Miller, 29-186; Bryson v. Slagle, 44-449; Brown v. Potter, 44-461; Baker v. McDonald; 47-244; McCormick v. Monroe, 48-332; Williams v. Wallace, 78-354; Kitchen v. Wilson, So-191; McAllister v. Devane, 76-57.*

As to what constitutes "colorable title."-See also Grant v. Winburne, 3-56; Armour v. White, ibid, 69; Pierce v. Owens, ibid, 234; Evans v. Satterfield, 5-413; University v. Blount, 4-455; Hill v. Wilton, 6-14; Jones v. Putney, 7-562; Campbell v. McArthur, 9-33; Rayner v. Capehart, 9-375; Tate v. Southard, 10-119; Dobson v. Murphy, 18-586; Ross v. Durham, 20-153; Williams v. Council, 49-206; Hardin v. Barrett, 51-159; Cron v. Hinson, 53-347.

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CLARK'S CODE OF CIVIL PROCEDURE.

Where the plaintiff failed to connect himself with the former owners of a tract of land, and failed to show color of title or adverse and continuous possession for twenty-one years: Held, that the court properly instructed the jury to return a verdict for the defendant. Brown v. King, 107-313.

Sec. 140. Such possession valid against claimants under the state. C. C. P., s. 19.

All such possession as is described in the preceding section, under such title as is therein described, is hereby ratified and confirmed, and declared to be a good and legal bar against the entry or suit of any person, under the right or claim of the state.

Sec. 141. Seven years' possession under colorable titlewhen persons having title must sue. C. C. P., s. 20.

When the person in possession of any real property, or those under whom he claims, shall have been possessed of the same, under known and visible lines and boundaries, and under colorable title for seven years, no entry shall be made or action sustained against such possessor by any person having any right or title to the same, except during the seven years next after his right or title shall have descended or accrued, who in default of suing within the time aforesaid, shall be excluded from any claim thereafter to be made; and such possession, so held, shall be a perpetual bar against all persons, subject to the qualifications in sections 148, 149, 150.

What possession will protect.-Seven years' exclusive adverse possession of land under color of title will protect the occupant against the claim of the true owner. Davis v. McArthur, 78-357; Johnson v. Parker, 79-475; unless such owner be under some disability, and in that event, his right must be asserted within three years from the removal of the disability. Johnson v. Parker, 79-475.

A purchaser of land who has been in the continuous adverse possession under a deed for the same for more than seven years before suit brought (and after cause of action accrued) in an action to have such purchaser declared a trustee for plaintiff's benefit is protected by this section, and the fact that an ejectment was brought within the time is no defence to the plea of the statute. The two actions are not for the same cause. Isler v. Dewey, 84-345.

Where title is shown out of the state by thirty years' possession the plaintiff need not show seven years' adverse possession in addition to the thirty years to entitle him to recover. The lapse of the seven years'