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Kirk

cause.

confer on the Penns more than they have declared, 1894. or made discriminations among the citizens at large, which no reason or policy could justify.

Smith. Upon the questions that have been raised upon the operation of the law, commonly called the seven years law, or the law of 1705, (though of much greater antiquity,) it may be proper to make a few remarks.

I cannot see a reason why this law should have been supposed obsolete, more especially with reference to the early day in which it must have acted upon the interests of the parties in this

Oo the contrary, it appears to have been & favourite law of the colony, for we find it enacted and re-enacted, in opposition to reiterated repeals by the King in council, as will be seen by reference to Carey and Bioren's edition of the Laws. In the same work, we find it printed under sanction of the Legislature, and republished imder the same authority, as lately as 1810. Indeed, upon reference to the concessions which composed the fundamental laws of the colony, we find the very law in its present terms; and are led to the conclusion, that its constitutional character gave it a peculiar sanctity in the eyes of the Commonwealth. Another consequence, also, results from its very early enactment; which is, that, contrary to a ground taken in argument, it must be construed as having a prospective effect, since it was adopted at a time when there could not have existed a case for it to govern, if solely retrospective. Of this law it has been remarked, that for 116 years it does not appear that a cause

1824. has been won or lost on the basis of it. And had

the decisions of the State Courts, prior to the reKirk

volution, been preserved, the observation would Smith.

have had its influence. But in the absence of reports of such adjudications, there cannot exist such satisfactory evidence on the subject as to sustain the fact. One thing is very certain, that some beneficial influence must have been felt from its existence, or it would not have been so often and so pertinaciously insisted on by the colonists. If it covered their estates in no other way than by preventing suits, its great purposes were answered; and its sovereign influence, in this respect, may well be inferred, from the assumed non-existence of decisions at law. It preserved health, if it did not cure disease. At present, it is unquestionably repealed by the act of 1785, for the two acts cannot stand together. The latter act extends the limitation of suits to twenty-one years; but if the limitation of seven years would produce the same effect, then would the prior law repeal the latter, or render it a mere nullity. And this accounts for its not having been heard of for the last forty years, which may be called the period of reported causes. Its repeal, however, at that time, has no influence upon its previous effect upon the rights of these parties.

It has been remarked of this law, as incontestable, that it could not convert an equitable into a legal estate : But this doctrine appears to me to do more than render the law obsolete; it renders it a mere nullity in its origin. What is gained by an estate's continuing an equitable estate? From

1824.

Kirk

Smith

its inherent strength, unaided by the law, if ac-
companied with continued possession, it would
continue a good equitable estate ; and why should
not the comprehensive words, “shall for ever give
an unquestionable title against all,” be construed
into a transmutation from an equitable into a legal
title? How can any but a good legal title be
denominated an unquestionable title? and why
should not all comprise legal as well as equitable
claimants? The opinion below supposes the sig-
nification of those terms to be circumscribed by
the words “ during the estate.” But from this I
must dissent, since these words do not necessarily
convey that meaning, and are more properly applied
to the distinction of estates into terms for years,
estates for life, estates in fee, in tail, &c.; all
which may be either legal or equitable. Neither
can I acquiesce in that part of the opinion, which
considers a discharge from the purchase money of
the land, as a necessary consequence of giving
effect to the seven years law, as against the plain-
tiffs below in this cause; for the lien might con-
tinue, though a legal and absolute estate be vested
in the defendants below. And, to prevent the
operation of this law in favour of the possession,
lést the claim for the purchase money should inci-
dentally be barred, appears to be inverting the
order of things; for, by the acts limiting suits on
contracts, the suit for the purchase money might
by possibility be barred; while the remedy to re-
cover the land was still in full force, being of
longer duration. The superior purpose of quiet-
ing estates of freehold, also would, under that
, Vol. IX.

Kirk

V. Smith.

1824. doctrine, be controlied by the inferior one of en

forcing open contracts, or implied covenants. While the most ordinary means of adjusting contracts for the sale of lands on credit remained in practice, there could be no danger, in giving credit on sales, of losing both land and money, as the Court supposes. But if that

But if that consequence did follow, non constat, but that the public interest, as well as private tranquillity, might have been promoted by it.

To me it appears, that this seven years law has had a sovereign influence over the rights of property in that State. I have no doubt that it is under its influence the doctrine has grown up, that a possessor of the soil need not produce a patent to protect his freehold; as well as the doctrine, that those words which, on the face of the warrant, would seem a condition, shall not be held to produce n ore than a contract and a lien.

But if this se en years law did not quiet the possessic sf the defendants below, I confess I am at a loss to understand the principle upon which that effect is denied to the limitation act of 1785. Was their estate void or voidable, legal or equitable? In every point of view, the law appears to me to operate in their favour.

The opinion below is thus expressed: “ Possession, to create a bar by length of time, must be adverse, which it cannot be, if the defendant's entry was under a title derived from the plaintiffs.” That a possession, to sustain a bar under the act, must be adverse, is unquestionable. But when the Court comes, in the next member of the

1824.

Kirk

v. Smith

period, to explain what is meant by an adverse possession, we find the doctrine asserted, that a possession cannot be held adverse to the title of him from whom it is derived. This doctrine I hold to be altogether untenable; and this sentence alone, though every other idea be put out of the case, would, in my view of the subject, entitle the plaintiffs here to a reversal of the judgment. The title acquired by a vendee is most peculiarly adverse to that of him from whom he purchases.

But under what view of the subject could these plaintiffs be held mere tenants at will to the

parties plaintiffs below? or their possession any other than an adverse possession? They did not hold as the agents or representatives of those through whom they derived the title. From the time of entering into possession, they held in virtue of the estate in themselves, and not that of any other. If the idea is, that the proprietaries might at any time have entered upon them, and in that sense, the estate was held at their will, the answer is, that is one of the very cases that the act of limitation provides against; for it takes away that volition in the proprietary, unless the entry be made in twenty-one years. But the fact was not so; these tenants did not hold at the will of the proprietaries, for all those who acquired under the conimon terms were taken under the care of the law, and we find act upon act to regulate the proceedings of the proprietary towards them. The right to turn them out by the shoulders never existed in the proprietary ; he must have resorted to his entry, or suit, to recover possession; they were

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