Den on the demise of Roger Jones and Eunice his wife v. James Clayton and John Thomas.
¡>From Craven.
A, a married woman, being1 seised of lands, joins her husband in a • *doed of them io B, who enters and occupies the lands seven years, during the coverture of A, who then dies, leaving C. her heir at law. A, never acknowledged her deed to 11; it was proved as to her husband, and leistered. B. occupied the lands more than three years afr r the death of A, without any claim or suit by C. C. was a feme, and w'.dt iter husband brought suit for the lands after the exp'r,tilt.n of three years from A’s death. But it did not appear whetlie" site b cured under any disability at the time of A’s death. The Court, io avoid deciding the question as to the effect of cumulative disabilities, until it be fairly presented for decision, will presume that C. did not labour under any disability at the time of A’s death ; and seven years adverse possession having run in the lifetime of A, and continued for three years after her death, the right, of entry of C. and her husband is barred.
The lands claimed in this ejectment were granted to John Tamiyhill on the Gth December, 1720. On the 13th February, 1753, Nathan Smith made a deed of bargain and sale in fee of the lands, to Francis Dawson, who de,vised them to Anne Dawson, 17th February, 1781. Anne Dawson, having married Se-don Jasper, they executed to William Clayton and Nelson Delamar the following instrument, to wit:
“ This Indenture, made this 13th day of September, 1798, between Weldon .Jasper and Anne Jasper, of the State of Norlh-Cai olina and county of Hyde, on the one part, and William Clayton and Nelson De-lantal-, of the State aforesaid and County of Craven, of the other part, witnessed!, that for and in consideration of the sum of lour hundred Spanish milled dollars, to the said Soldon Jasper pul Anne Jasper in hand paid by the said William Clayton and Nelson Delamar,-at tile sealing and delivory of these presents, the rccoipt'whereof is fully acknowledged, we the said Sekion Jasper and Anne Jasper have granted, baiguinedand sold, and.by these presents do grant, bargain and seil unto William Clayton and Nelson Delamar, all our right, title and interest in a certain piece or tract of land, situate, lying and being oi* *63tlie north side of Novse river, and partly at the mouth of said river, it being the whole of that parcel or piece of land which was left by will by Francis Dawson, senior, to the said Anne, generally known by the name of the Gum Thicket, containing by estimation three hundred acres, be the same more or less. And we the said Seldon and Anne Jasper do warrant and defend the jjforesaid granted lands and premises from him the said Seldon Jasper and Anne Jasper, their heirs, executors, administrators and assigns forever, from the lawful claim of any other person. In testimony whereof, we have hereunto set our hands and affixed our seals, the year and date above, vi'itten.
SELDON JASPER, (Seal.)
ANNE JASPER, (Seal.)
in presence of
FltAZiCIS Dllahazi,
CURISTOfLER BeLASIAR.”
“ State of North-Carolina — Craven County Court — March term, 1804. Then was the within deed proved in open Court, by !he oath of Francis Delamar, one of the subscribing witnesses Siereto, and ordered to be registered.
Teste, SAME. CHAPMAN, C. C.
“ I certify tliat the within deed is correct agreeably to the Register's office of Craven county — Book Z, page 317. ■
Teste, TKOS. L. C1IEEKE, Reg’!-.’'
The wife of said Jasper never acknowledged the said deed, had no children, and died in February, 1806, leaving the Plaintiff her heir at law, and her husband Sel-don Jasper yet living. The question submitted to this-Court-was, Whether a possession of seven years by De lamar and Clayton, under the aforesaid deed, before the death of Anne Jasper, and three years thereafter without claim or suit5 bars the right of entry of -her heir at law, Eunice, the wife of Roger Jones ?
Gaston, for the lessors of the Plaintiff.
It appearing that the lands have been granted, the State has no title to them. The heirS of Tannyhill can have none, by reason of Smith’s conveyance to Dawson, and seven years adverse possession under that conveyance. The Defendant has no title, because his possession was not *64adverse to Mrs. Jasper, she being a married woman. rjpjie t¡ien? nuist be in the lessors of the Plaintiff; otherwise there is no owner. The conveyance to the Defendant is but the conveyance of Jasper ; it is a bargain and sale, and therefore passes only what might lawfully pass, vbs. an estate during coverture — (Bac. Jib. Bargain & Sale, Jl. 466-7 — Lilt. 606-7-8-9.) The Defendant is not at liberty to controvert Mrs. Jasper’s title; he claims under it — (Ncw-York Term Bep. 398.) But,
Ey tub Cuukt.
It doth not appear in the statement of the case, whether Eunice, the heir at law of Mrs. .Jasper, was of full age, or covert at the time of Mrs. Jasper’s death. Although the fact" be not stated in the case, yet it is admitted by the parties, that Clayton and Beiamar had seven years possession of the lands before the death of Mrs. Jasper. The character of their possession is evidenced by the deed under which they claimed. it is also admitted, that this possession was continued for more than three years after Mrs. Jasper’s death, if, instead of the death of Mrs. Jasper, she had become discovert, the act of 1715, oh. 27, gave her three years after her discoverture to bring lies* suit or make her entry. 'What, time shall be allowed to her heir at law ? It is said, if at the time the descent is cast, the-heir labour under disability, the statute of limitations shall remain suspended during the disability; so that if Eunice was married to Roger Jones at the time of Mrs. Jasper’s death, she shall have during all the coverture and three years thereafter, to bring her suit or make her •entry or claim, notwithstanding seven years adverse possession hail run in the life-time of her ancestor, Mrs. Jasper. This would at once present the question of cumulative disabilities to the Court; a question which will, not be decided until it be fairly presented. It would be wrong to decide it in this case by assuming facts which *65are not in proof. As the verdict and judgment in this case is not conclusive upon the rights of the parties, the Court will rather presume that Eunice laboured under no disability when Mrs. Jasper died, and that this suit being instituted more than three years after that event, her right of entry* was barred by the adverse possession of the Defendants. Judgment for Defendants.