Boyd v. Weber

Opinion by

Mr. Justice Mitchell,

The devise to Elizabeth Yeater was clearly in tail. To Elizabeth “ and the heirs of her body ” would be the usual form of an estate tail, and the addition, “ or children,” is merely a cumulative description. The phrase, “ such heirs of her body, or children such as she shall leave living at the time of her death,” is not materially different. It adds a qualification as to the second takers, but does not alter the words of 'limitation of the devise: Hiester v. Yerger, 166 Pa. 445.

Being an estate tail in Elizabeth it was barred by her deed made for that purpose in 1848. If, as alleged, that deed was voidable for insanity of the grantor, a right of action to avoid it accrued to her immediately, and after thirty years she and all persons claiming under her were barred by the Act of April 22, 1856, P. L. 532, sec. 1.

That act provides that no exception in any act of assembly respecting the limitation of actions in favor of persons non compos mentis, etc., shall extend so as to permit any person to maintain any action for the recovery of land, after thirty years shall have elapsed since the right of entry thereto accrued to any person within the exceptions aforesaid.

It is argued that, as Elizabeth did not die until 1892, the right of entry did not accrue to plaintiffs until then. But it is not the right of entry of the plaintiff that must have accrued within thirty years, but that of the person under disability. The language of the statute is that no exception by reason of the disabilities named shall permit any person to maintain action after thirty years from the accruing of the right of entry to the person under disability. This excludes not only the lunatic, but also every other person claiming under or by privity of title with her. This is the settled construction of the act: Hunt v. Wall, 75 Pa. 413; Hogg v. Ashman, 83 Pa. 80; Updegrove v. Blum, 117 Pa. 259.

As the statute of limitations was a complete defense, it is not necessary to consider any of the other questions raised in the learned and ingenious argument of appellants.

Judgment affirmed.