No. 59.

#### John Doe ex dem. William D. Conyers, adm’r. of Andrew Smith, deceased, *vs.*Richard Roe, casual ejector, Richard Kennon and Addison Kennon, tenants in possession.

Against the right of action to recover the property of an intestate, the statute of limitations will not commence to run until administration of his estate has been granted.

*By the Court*

Lumpkin, Judge.

This was an action of ejectment, tried at March Term, 1846, of Newton Superior Court, before Judge Merriwether, to which the defendant pleaded the statute of limitations. The plaintiff introduced and read in evidence a grant from the State of Georgia, to his intestate, Andrew Smith, of letters of administration to himself, on the estate of Smith, bearing date in 1838 ; and having proved possession of the premises in dispute by the defendants, at the time he sued out his writ, closed his case. The defendants, in support of their plea, offered a deed to the land from Charles Kennon to Richard Kennon, dated in 1836, and proved that the defendants had continued in peaceable occupancy thereof, from that period to the time of the trial. They also exhibited conveyances from various persons, purporting to be the heirs at law of Andrew Smith, the grantee, *to*one Anderson.

The plaintiff, in rebuttal, had the testimony of Thomas King taken by commission, who swore that Andrew Smith died in 1829 or 1830, and the case having been submitted upon this statement of facts, the court charged the jury, “ That if the defendants had been in possession of the premises for more than seven years, under the deed from Kennon, they were protected under the statute of limitations, although the drawer of the lot was dead, and no administration was taken on his estate, till within seven years of the commencement of the action.” To this opinion the plaintiff excepted ; and the propriety of that charge is the question now presented for our decision.

Whether *heirs at law*can maintain ejectment for land in this State, has long been a debatable point with the profession. That the *administrator*can sell, has never been seriously doubted by the courts. It would be strange if it were, seeing that real and personal estate are both placed by our law upon the same footing, and constitute assets in the administrator’s hands ; first, for the payment of the debts of the intestate, and then for distribution of the surplus among the next of kin and distributees. And to effectuate these ends, the administrator is clothed with authority, under the sanction of the Ordinary, to sell and *convey*to purchasers *legal*title to the real, as well as personal, estate of his intestate. Against a suit at the instance of the representative, can the statute commence to run, until the right is vested in the representative to maintain an action ? The court thinks not. It is the grant of administration which gives the right to sue, and the plaintiff’s letters are a part of his title.

We fully appreciate the justice and policy of statutes of limitation. It has been truly said, that there are none, whose operation is so wide, so beneficial, and so peaceful. They well deserve the high appellation bestowed upon them by the civil law, *salubérrima lex;*and I am not sure *380but that the wisdom of the Athenians is worthy of imitation, in prescribing a certain limit as the *ne plus*ultra, at the expiration of which, a party should be exempt from all legal harassment. The public repose would be an ample apology for such a sweeping exaction from all the world.

The doctrine is, that where the statute begins to run, its operation is not arrested, even where there is a legal impossibility to assert the right.— *Livingston*vs. *Robin,*15 *Johns. Rep.*169; *Celdon*vs. *Moore,*13 *Johns. Rep.*514; Marsteller *vs. McLean,*7 *Cranch,*156. But where there is no one *in esse*to assert the rights of the intestate, they cannot of course be presumed to be taken away by any supposed acquiescence in the adverse possession of the defendant. — 4 *Mod.*376; Carth. *33*5; *Skinner,*535; 3 *Hills*Rep. 346. Where money of a person who had died intestate had been received by the defendant before administration was granted — it was held that the statute of limitation should not begin to run from the time of receiving the money ; *for then no one had a title to receive it;*but it should begin from the time of administration granted.— *Curry*vs. *Stephenson,*2 *Salk.*421. Lord Bacon, in commenting upon this authority, says: *“*Had the money been received in the lifetime of the person who died intestate, that person would have had a right of action vested in him, and from that period the time of limitation would have commenced, and the statute would have been a bar. For when once the time of limitation has begun to run, it suffers no interruption from the death of the claimant; nor does it revive in favor of any person upon whom the right of claim may devolve. In Hickman against Walker, where the statute of limitations was pleaded to an action brought by an executor on a promise made to his testator, the court ruled that the six years should be computed from the time when the cause of action arose, and not from the time of obtaining the probate of the will.— *Willes,*27.

This distinction, so clearly established by reference to the authorities, would not have been deemed necessary, but for the respect so deservedly entertained for the able and acute judge, who pronounced the opinion we are combatting.

It is contended, however, that our own statute has settled this question. *—Prin. Dig.*513. It enacts that the action of ejectment shall be brought within seven years after the cause of action accrues, and that the right of entry shall be taken away after that time, unless the person entitled to sue, shallj at the time the right accrues, be within the age of twenty-one years, *feme covert, non compos mentis,*or imprisoned. The inference and argument is, that inasmuch as executors and administrators are not embraced in the *saving clause,*as it is called, that the statute runs of course against them. But our answer is, that the statute itself, *in totidem verbis,*allows the representative seven years to bring ejectment, *as his right, as such,*does not accrue until he is qualified. There can be no cause of action until the person in possession withholds the premises from the real owner. It would be judicious, perhaps, for the General Assembly to limit the time, within which representatives should sue, *after obtaining letters.*But the law gives the party *seven*years, nor can this court allow less, until commanded to do so by the supreme power in the State. Our statute of limitations is, with some few alterations, copied from the English statutes of 21 *Jac.*1, ch. 16, and 32 *Henry*8, ch. 2, which is *in pari materia;*and the only difference upon the subject immediately under con*381sideration is, that seven years are substituted for twenty. We leave the matter to be disposed of by those whose duty it is to declare, not what the law is, but what it shall be. Believing, however, as wo do, with Lord Holt, that the statute of limitations is one of the best of statutes, (7 Modern, 12,) and, with Air. Justice Wilmot, that it is a noble, beneficial act, (1 *Black. R.*187,) we are not prepared to say, that a former administration would not be presumed, after the lapse of a great length of time, in order to protect the title of the occupant. Courts in our sister Slates have intimated such a purpose. Even grants are presumed for the purpose of quieting ancient possessions. Aloreover, we are not quite olear, that chancery would not grant a perpetual injunction, notwithstanding its reluctance, to restrain legal rights, in a case where the *heirs at lam*have conveyed, or are barred, and *there are no creditors.*

Judgment reversed.

William W. Clark, for the plaintiff in error.

Angus M. D. King and-Jones, for the defendants in error.