5. The rule has always been, and is now, that the statute of limitations cannot operate as a bar unless the objection is taken by answer. A defendant cannot avail himself of this statute in moving to vacate an order of arrest, where he has not set it up in his

answer.

6. Where it appears on the face of the complaint, in an equitable action, that the statute of limitations is a bar, the defendant cannot demur, the defense can be taken only by

answer.

7. (4 Q.) The statute of limitations is the only bar to relief in reference to the time of reforming a contract on the ground of mistake.

8. (5 Q.) An executor on accounting, before the surrogate, or on a reference of a disputed claim under the statute, may avail himself of the statute of limitations in bar of any claim presented against the estate, in the same manner as in an action upon such claim.

CHAPTER II.

The time of commencing actions for the recovery of real property.

SECTION 75. When the people will not sue.

76. When action cannot be brought by grantee from the state.

77. When actions by the people or their grantees to be brought within twenty years.

78. Seisin within twenty years, when necessary in action for real property. 79. Seisin within twenty years, when necessary in action or defense founded on title to or rents of real property.

80. Action must be commenced within one year after entry, or within twenty years after right of entry.

81. Possession when presumed. Occupation deemed under legal title, unless adverse.

82. Occupation under written instrument or judgment, when deemed adverse. 83. What constitutes adverse possession, under written instrument or judg

ment.

84. Premises actually occupied, under claim of title, deemed to be held

adversely.

85. What constitutes adverse possession under claim of title, not written. 86. Relation of landlord and tenant, as affecting adverse possession.

87. Right of possession not affected by descent cast.

88. Certain disabilities excluded from time to commence actions.

$75. When the people will not sue.

The people of this state will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless,

1. Such right or title shall have accrued within forty years before any action or other proceeding, for the same shall be commenced; or unless,

2. The people, or those from whom they claim, shall have received the rents and profits of such real property, or of some part thereof, within the space of forty years.

Questions.

1. Question. As against the people, must the defendant show title in himself, or a continuance of possession forty years?

2. Q. What is the necessary title or adverse possession, to bar the claim of the state to wild uncultivated and unoccupied land?

3. Q. When does the fencing of a public highway constitute a simple encroachment, and not a public nuisance; and what statute of limitations apply?

1. Q. As against the people, must the defendant show title in himself, or a continuance of possession forty years?

4. In The People agt. Van Rensselaer, 8 Barb., 199, Special Term, March, 1850, HAND, J., it was decided, that in an action in the nature of ejectment, brought by the people, the plaintiffs will be presumed to have the title; and until that is shown to be out of them, the presumption being that the possesion of the defendants is not adverse, their occupancy will be held to be in subordination to the title. And unless the defendants, or those under whom they claim, have held or occupied the land for a period of forty years, they cannot avail themselves of the statute, which declares that the people will not sue for lands, &c., by reason of any right or title not accruing within forty years, unless they have received the rents and profits within that time. As against the people the defendant must show title in himself, or a continuous possession of forty years. Where the lands of the state have always been vacant, until some recent intrusion, the people are not bound to show a title which has accrued, or was first acquired by them, within forty years, or the actual perception of profits within that period. The principle of the common law, that no laches can be imputed to sovereignty, and that it is privileged from the statute of limitations, is applicable, as a general rule to state sovereignties of this country; subject to the modifications made by statute.

2. Q. What is the necessary title or adverse possession to bar the claim of the state to wild uncultivated and unoccupied land?

A. In The People agt. Livingston, 8 Barb., 253, Special Term, April, 1850, WRIGHT, J.. it was decided, that the statute of this state, limiting the time for bringing actions of ejectment by the people, requires an actual, continued possession for forty years, to bar such action. The people are the owners of all the lands within this state that had not prior to, or have not since, the revolution, been granted to others; and in their right of Sovereignty they are deemed to possess the original and ultimate property in all the lands of the state. Being the source of title, the people are presumed to be the owners of lands not granted by them, until the contrary appears. And in an action to recover possession of premises, brought in their name, it is sufficient in the first instance, to entiile them to recover, to show that such premises are vacant, unenclosed and unoccupied.

In The People agt. Arnold, 4 Comst., 508, April, 1851, BRONSON, J., it was decided, that an action by the people to recover lands is not barred by the statute of limitations, unless it be shown that there has been an adverse possession for forty years before the commencement of the suit. The people are deemed to have received the rents and profits so far as to prevent the running of the statute, unless the lands are held in hostility to their title. And this is so, although the lands are wild and uncultivated, or although they are occupied by one who makes no return for the use, provided he holds by permission of the people and in subordination to their title.

In The People agt. The Rector of Trinity Church, 22 N. Y. R., 56, September, 1860, COMSTOCK, J., it was decided, that there is no presumption of title in favor of the people, against the actual occupant of land, until it is shown that the possession has been vacant within forty years. A corporation is a person within the meaning of the statute of limitations, in actions commenced by the people.

In The People agt. Clarke, 5 Seld., 363, December, 1853, DENIO, J., it was decided, that to an action by the people for the repeal of royal letters patent dated in 1737, granting land in the province of New York, on the ground that the patent was obtained by fraud discovered since the issuing thereof, and also on the ground of breach of condtions by the grantees, the statute of limitations of 1788, chapter 43, reenacted in the revision of 1801, chapter 189, is applicable.

3. Q. When does the fencing of a public highway constitute a simple encroachment and not a public nuisance; and what statute of limitations apply?

4. In Peckham agt. Henderson, 27 Barb., 210, General Term, May, 1858, MARVIN, J.,

it was decided, that where a simple encroachment, the fencing of a highway not constituting a public nuisance, has existed, in a public highway for twenty years, the premises taken by the encroachment cease to be a part of the highway; and a jury should find that there is no encroachment.

What is the result of the decisions under this section?

1. (1 Q.) As against the people the defendant must show title in himself, or a continuous possession of forty years.

2. Where the lands of the state have always been vacant, until some recent intrusion, the people are not bound to show a title within forty years, or the actual perception of profits within that period.

3. (2 Q.) In an action by the people to recover possession of vacant lands, it is sufficient, in the first instance, to entitle them to recover, to show that such premises are vacant, unenclosed and unoccupied.

4. The people are deemed to have received the rents and profits of lands so far as to prevent the running of the statute of limitations, unless the lands are held in hostility to their title. And this is so, although the lands are wild and uncultivated.

5. There is no presumption of title in favor of the people, against the actual occupant of land, until it is shown that the possession has been vacant within forty years.

6. The statute of limitations of 1801 is applicahe to an action by the people for the repeal of royal letters patent, dated in 1737, granting land in the province of New York, on the ground of fraud in obtaining the patent.

7. (3 Q.) Where a simple encroachment (the fencing of a highway) not constituting a public nuisance has existed for twenty years, the premises taken by the encroachment, cease to be a part of the highway, and consequently there is in fact no encroachment.

76. When action cannot be brought by grantee from the state.

No action shall be brought for, or in respect to, real property, by any person claiming by virtue of letters patent, or grants from the people of this state, unless the same might have been commenced by the people, as herein specified, in case such patent or grant had not been issued or made.

77. When actions by the people or their grantees to be brought within twenty years.

When letters patent, or grants of real property, shall have been issued or made by the people of this state, and the same shall be declared void by the determination of a competent court, rendered upon an allegation of a fraudulent suggestion, or concealment, or forfeiture, or mistake, or ignorance of a material fact, or wrongful detaining, or defective title, in such case,

an action for the recovery of the premises so conveyed, may be brought either by the people of this state, or by any subsequent patentee or grantee of the same premises, his heirs or assigns, within twenty years after such determination was made; but not after that period.

1. Question. When and what statute of limitations is a bar to a suit to set aside royal letters patent, granting land in the province of New York, dated in 1737, on the ground that the patent was obtained by fraud?

Answer. The answer to this question will be found under section 75, Q. 2.

78. Seisin within twenty years, when necessary in action for real property.

No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question, within twenty years before the commencement of such action.

79. Seisin within twenty years, when necessary in action or defense founded on title to or rents of real property.

No cause of action or defense to an action founded upon the title to real property, or to rents or services out of the same, shall be effectual, unless it appear that the person prosecuting the action, or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor or grantor of such person, was seized or possessed of the premises in question, within twenty years before the committing of the act in respect to which such action is prosecuted or defense made.

§ 80. Action must be commenced within one year after entry, or within twenty years after right of entry.

No entry upon real estate shall be deemed sufficient, or valid as a claim, unless an action be commenced thereupon within one year after the making of such entry, and within twenty

years from the time when the right to make such entry, descended or accrued.

1. Question. Is a mortgagor of real estate barred in twenty years of an action to recover possession of the mortgaged premises, where his possession had been abandoned to the mortgagee for more than twenty years, and proceedings to foreclose the mortgage by advertisement, had been commenced after that time?

Answer. In Calkins agt. Isbell, 20, N. Y. R., 150, September, 1859, COMSTOCK, J., it was decided, that where a mortgagor has abandoned possession of the mortgaged premises to the mortgagee, and the latter and his assigns have been in possession thereof for more than twenty years, the mortgagor is not barred of an action to recover possession of the premises, where proceedings to foreclose the mortgage by advertisement have been instituted by the owner after twenty years adverse possession, for the avowed purpose of perfecting title.

81. Possession when presumed. Occupation deemed under legal title, unless adverse.

In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the premises, shall be presumed to have been possessed thereof within the time required by law; and the occupation of such premises by any other person, shall be deemed to have been under and in subordination to the legal title, unless it appear that such premises have been held and possessed adversely to to such legal title, for twenty years before the commencement of such action.

$82. Occupation under written instrument or judgment, when

deemed adverse.

Whenever it shall appear that the occupant, or those under whom he claims, entered into the possession of premises under claim of title, exclusive of any other right, founding such claim upon a written instrument, as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree or judgment, or of some part of such premises, under such claim, for twenty years, the premises so included shall be deemed to have been held adversely, except that where the premises