Samuel Nelson

“ There can be no successive disabilities, either in the same person, or set up in succeeding heirs. If the disabilities of the first takers are removed, the heirs must sue within ten years or twenty years, (according to the statute thereafter.) Thus, if A, an heir, be a non-resident, and dies, and his heir is also a non-resident, the disability of the latter cannot be added to that of his ancestor, but he must sue within the time limited after the death of the first taker ”

“ And further, that neither Antoine nor Lambert's heirs, down to the year 1834, committed any open or notorious act, inconsistent with the rights of the plaintiffs, or in any way disavowed the trust and relation as co-tenant, or of brothers or co-heirs, nor in any manner asserted any title to the land, to the exclusion of their rights. ”

“ If a party holds in a character incompatible with the idea of a freehold in another, his holding is adverse. In order to ascertain the character of the holding, courts will look at the parties' conduct while in possession. ”

“ The bill further states that Antoine, in his lifetime, and his son, who is one of the defendants, and the heirs of Lambert, have conveyed to divers individuals rights in the said tract; that, in some instances, they made donations without consideration; in others, conveyances for a pretended consideration; and that there now are in possession, as heirs, donees, and purchasers of different portions of the premises, several hundred persons, most of whose names are unknown to the plaintiffs, which persons set up claims and pretended rights and interests therein. ”

“ In 1747, Edward Charlton, under whom plaintiffs claimed, being indebted to John Rooke by a judgment, it was agreed between them that Rooke should be put into possession of the rents and profits of the estate in question, until the debt should be satisfied, which agreement was carried into effect, and Rooke entered into and remained in possession till 1752. Edward Charlton, being at that time indebted to John Reed, under whom defendants claimed, Reed made an agreement with Rooke, for an assignment of what remained due by Charlton to Rooke ”

“ And most particularly do we ask attention to the decisive fact that in this statute of 1829 there is no saving clause. The bar is general and universal. The non-resident is bound equally with the resident, the infant with the adult, and we therefore need not stop to discuss the particular circumstances of each complaint.
That where the Legislature have made no exceptions, the courts can make none. ”

“ This under New York statute similar to ours.
The non-residence of the complainants is immaterial, even if the act of 1829 contained any exceptions, which it does not; under this principle, the law of 1820 equally bars the whole action.
The court will not fail to perceive the disgraceful vagueness and studied evasion with which the bill is drawn.
It makes no averment that these complainants have been continuously out of the Territory and the State of Michigan. Such it is notorious is not the fact. ”

“ Edward Charlton died in 1767, leaving a widow and a son, then under age. The son married in 1778, and died in 1797, leaving a son, an infant. The question was, whether, under the circumstances, a conveyance either from Edward Charlton or William Charlton to the Reed family might be presumed. ”

“ The plea does not undertake to deny the fraud, or that the patent was obtained on the claim founded on the original French titles, or that the defendants have not the original title papers; all these should be negatived by averment in the plea.
2 Daniels Ch. Pr., 691.
Possession to be adverse must be in good faith, and not a precarious possession, such as a possessio fratris, or a fraudulent possession. Domat. ”

“ In 1804, Antoine, one of the heirs in possession, applied to the board of commissioners to adjust land claims, under the act of Congress of 1804, to confirm his claim to the land; and which was confirmed accordingly, and a patent issued in 1812. Acts of Congress, 26th March, 1804; 3d March, 1805; 3d March, 1807.
Lambert, the other brother, continued in the joint occupation of the tract till his death, in 1815, and subsequently, in 1818, Antoine conveyed to the heirs of Lambert a moiety of the premises ”