B. JUDICIAL OPINIONS

upon it are forcible. It was a case of hardship only, not of impossiIt is as follows: bility of performance. The exact language of the report cannot fairly be construed against the principle now insisted on. "And this difference was taken, that where the law creates a duty or charge and the party is disabled to perform it without any default in him and hath no remedy over, there the law will excuse him. As in the case of waste, if a house be destroyed by tempest or by enemies, the lessee is excused. So of an escape. So in 9 E. III, 16, a supersedeas was awarded to the justices, that they should not proceed in a cessavit upon a cesser during the war, but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. And therefore if the lessee covenant to repair a house, though it be burnt by lightning or thrown down by enemies, yet he ought to repair it." The point of the second proposition is, "if he may." He must, if possible, how. ever hard. The impossibilities recognized by the law are impossibility by act or force of law and impossibility by the act of God. It is unnecessary in this case to deal with the latter excuse, as there is more difficulty about it, but as to the former, it is said in Chitty on Contracts, 804, "that the non-performance of a contract will always be excused where it is occasioned by act of law or by an act done by public authority." The doctrine already considered, would apply to a case where the disability was only on the part of the party to perform, but in the case before us, the company could not receive the payment without a violation of the law on their part. To do so would necessitate an act of intercourse. Hence both parties were under a legal disability-one to pay, the other to receive. This is the effect of the act of congress and of the state of war. The right of those interested in the policy to pay and save the insurance was just as strong as the right of the company to receive. Neither could enjoy the right. By what principle, then, can the company exact a strict compliance with the clause The hands of each were tied, and the comto pay at a definite time? pany could not complain of the other's default. According to all analogy and principles, the performance must be suspended under such circumstances. To dissolve, when the contract is part executed, would not place the parties in a just position; but to suspend will best reach the intention and spirit of the contract.

The suggestion that this being a mutual company the contract is therefore like a partnership and dissolved, is disposed of by what Allen, J., said in substance in Cohen v. N. Y. Mutual Life Insurance Co., 50 N. Y. 624, 10 Am. Rep. 522, that the company is a body corporate, capable of contracting as such, and the relation is between insurer, a corporation, and insured; that the members are not partners between themselves. The contract is the contract of the corporation, and whatever incidental advantages appertain to a member, that that does not affect the contract in the policy. Besides, if a partnership, it would result in an accounting as of the time of dissolution, which would be at the commencement of the war, and the defendant would hardly desire that result.

The further suggestion by defendant's counsel that the fault of nonpayment must be imputed to the plaintiffs, because the rebellion was their fault, cannot be regarded. The law deals with the condition of things when actual hostilities exist, and considers all the citizens of the belligerent districts as enemies mutually. The causes of the contest are swallowed up in the strife, and the legal results of it, between individuals, are not affected by the causes which induced it. If this insurance company had been located south and the plaintiffs north, the law would affect them the same as it does now with their present

status.

The questions involved in this cause have greatly agitated the courts of this country, and resulted in adverse decisions. I have not reviewed them, but will content myself with merely a reference to them, both in favor of the result reached and those adverse. In favor: N. Y. Life Ins. Co. v. Clopton, 7 Bush (Ky.) 179, 3 Am. Rep. 290; Manhattan Life Ins. Co. v. Warwick, 20 Grat. (Va.) 614, 3 Am. Rep. 218; Robinson v. Internat. Life Assurance Co., 42 N. Y. 54, 1 Am. Rep. 400; . Statham v. N. Y. Life Ins. Co., 45 Miss. 581, 7 Am. Rep. 737; Hamilton v. Mutual Life Ins. Co., 9 Blatchf. 234, Fed. Cas. No. 5,986; Cohen v. N. Y. Mutual Life Ins. Co., 50 N. Y. 610, 10 Am. Rep. 522; Sands v. N. Y. Life Ins. Co., 50 N. Y. 626, 10 Am. Rep. 535. Adverse: Dillard v. Manhattan Life Ins. Co., 44 Ga. 119, 9 Am. Rep. 157; O'Reily v. Mutual Life Ins. Co., 2 Abb. Prac. (N. S. N. Y.) 167; also Tait v. N. Y. Life Ins. Co., in U. S. Circuit, Western Tennessee (1873) Fed. Cas. No. 13,726.

In addition to these cases, the recent action of the Supreme Court of the United States, in affirming, by a divided court, two adverse judgments, exhausts all the adjudication I can find upon the distinct subject.

The objection that the suit is not brought in the name of the proper party, is correctly disposed of by the Chief Justice, and nothing further need be said upon it.

The judgment of the Supreme Court must be affirmed.

The CHANCELLOR dissenting.

4. MAYO & JONES v. CARTWRIGHT.

(Supreme Court of Arkansas, 1875. 30 Ark. 407.)

Appeal from Monroe Circuit Court in Chancery.

WALKER, J. This is a suit in chancery, brought in the Monroe Circuit Court by Cartwright against Mayo and Jones, to enjoin the sale of a tract of land, bought by Cartwright of George Washington, who had, before that time, conveyed the same in trust to Mayo, one of the defendants, to secure the payment of certain notes, which Washington owed to one Loftus, and for the payment of which Mayo and Jones. were bound as the securities of Washington. The case was heard upon bills, answers, exhibits and depositions, upon consideration of which the court decreed that Mayo, the trustee, be perpetually enjoined from executing his trust, and for costs.

From this decree Mayo and Jones have appealed to this court.

B. JUDICIAL OPINIONS

The main ground for equitable relief set up in this bill was the uninterrupted adverse possession of the complainant for more than seven years, which he sets up as a bar to the sale of the land by the trustee under the trust deed.

The defendants in their answer admit the purchase and possession of the land by complainant, but deny that their right to enforce the trust is barred by limitation, upon the ground, amongst others, that the statute bar was suspended during the late war, and deducting that time, seven years had not elapsed between the time the adverse possession commenced and the time when the trustee attempted to enforce his

trust.

After a careful consideration of the several allegations of complaint, the admissions of the answers, and the evidence, the facts of the case are that Washington and Baldwin, with Jones and Mayo as their seof October, 1850, executed to Loftus two notes curity, on the under seal for $1500 each, one payable 1st February, 1853, the other payable 1st February, 1854. To secure the payment of these notes, Washington, the owner and occupant of a tract of land in Monroe county, Ark., on the 8th of April, 1856, executed a deed of trust to Mayo, one of his securities on the notes to Loftus, with power to sell the land upon notice to satisfy the debts; that the trust was accepted by Mayo, and the deed acknowledged and recorded in the recorder's office of that county on the 10th April, 1856, two days after its execution; that Washington continued in possession of the land, cultivated the same, and appropriated the rents and profits to his own use, up to the time of his sale of the land to Cartwright.

That Cartwright, a non-resident of the State, made a verbal contract with Washington for the purchase of the land, under which Murrel, his son-in-law, as his agent, took possession in December, 1857. That Washington, for the consideration of $21,000, which was paid. to him on the 1st of January, 1858, executed to Cartwright a deed with covenants of warranty of title, after which Cartwright's possession was continuous and uninterrupted until the commencement of this suit, on the 17th December, 1868 (except a temporary absence during part of the time of the late war). That during all of the time after he entered upon the lands, he cultivated the same, and received and appropriated the rents and profits to himself; that he paid the taxes on the land as his, and made notorious and valuable improvements on it, such as clearing, fencing, building and ditching; that during all this time (except a temporary absence during the war) Mayo resided in the neighborhood of the land; that he did not apprise Cartwright of his title or claim as trustee, nor assert any claim or control over the lands, or the rents and profits, until the 31st of October, 1868, at which time he advertised the lands for sale.

Upon this state of case Cartwright contends, first, that he was an innocent purchaser for a valuable consideration, and that Mayo is estopped, by silence and acquiescence in the purchase, payment, occupancy and improvements upon the land from setting up or asserting his claim as trustee; and, second, that Mayo is barred by lapse of time from asserting his claim to the land as trustee.

As regards the first position, we must hold that although there ap

pears to have been no actual notice of the trust claim, and that Cartwright, a stranger in the country, finding Washington in possession of the land, with evidence of title in himself, in good faith made the purchase, and paid his money in ignorance of the existence of the trust deed; still, as the deed was of record, he is chargeable with constructive notice, and Mayo was not bound to warn him of his title. It was the carelessness and neglect of Cartwright, in not examining the records to see whether there was or not an incumbrance upon his title, the consequences of which he must bear.

The second ground assumed for complaint, presents the only serious question to be determined.

The defendants insist that they are not barred by the statute from enforcing their claim under the trust deed: First-Because Cartwright has not had seven years' peaceable, continuous, possession of the land, adverse to the rights of defendant. And Second-That by reason of several payments made upon the notes to secure the payment of which the deed was executed, the debts are not barred by limitation, and that whilst the debt remains due and unsatisfied, the right to enforce payment under the deed exists.

Under the first ground of defense, as to the seven years' proposition, the statute is as follows:

Sec. 2, Gould's Digest, ch. 106: "No person or persons, or their heirs, shall sue, or maintain any action or suit, either in law or equity, for any lands, tenements or hereditaments, but within seven years next after his, her, or their right to commence, have, or maintain such suit, shall have come, fallen, or accrued; and that suits, either in law or equity, for the recovery of any lands, tenements or hereditaments, shall be had, and sued, within seven years next after title, or cause of action accrued, and at no time after said seven years shall have expired. Excepting minors, femmes covert, and persons non compos mentis."

These are the only exceptions made by the statute, nor is there anything in the language of the statute, from which, by any fair construction, any other exceptions may be inferred.

Cartwright went into possession on the 1st of January, 1858, under his purchase, and from that time until the 31st October, 1868, a period of ten years and ten months, continued in peaceable, adverse, uninterrupted possession.

To avoid the effect of this, the defendants claim that the statute bar did not run during the time between the proclamation of war by President Lincoln, on the 27th of April, 1861, and that of President Johnson at the close of the late war, on the 2d of April, 1866, and that deducting this time from the ten years and ten months, the seven years had not expired on the 31st October, 1868. We have seen that the statute makes no such exception, and in the case of Bennett v. Worthington, 24 Ark. 487, we held that when the statute made no exception we could make none. But in a later decision of this court, Metropolitan Bank v. Gordon, 28 Ark. 115, the case of Bennett v. Worthington was overruled, upon the authority of Hanger v. Abbott, 6 Wall. 532, 18 L. Ed. 939; Levy v. Stewart, 11 Wall. 244, 20 L. Ed. 86; Stewart v. Kahn, 11 Wall. 493, 20 L. Ed. 176; and United States v. Singer, 15 Wall. 111, 21 L. Ed. 49. In none of these decisions is there

a single authority cited to sustain them. They are distinctly placed upon the ground that intercourse was prohibited between the belligerent States in time of civil war, and that as between belligerents the international laws of war should prevail. In all of these cases, the suits, except that of United States v. Wiley, 11 Wall. 508, 20 L. Ed. 211, and Levy v. Stewart, 11 Wall. 244, 20 L. Ed. 86, were between the loyal States of the one party and the rebel States of the other, and fixed as the period of the statute bar the dates of the proclamations declaring war and that of its suspension. The ground upon which the Supreme Court of the United States extended this suspension to suits between the citizens of the rebel States was based upon an act of Congress. Since the decision of the case of the Metropolitan Bank v. Gordon, this court has applied the rule as held in that case to several cases between the citizens of this State, limiting the period of suspension, however, to the 6th May, 1861, the date of the secession ordinance, and the close of the war April 2d, 1866.

These decisions have been so long made and acquiesced in, that we do not feel at liberty to disturb them. Nor have we made this reference to them for that purpose, but to show the true grounds upon which they rest, and that they should not be relied upon as authority for making a like exception in favor of a trustee, with power to sell upon notice. The act to be performed was personal, neither the existence nor the intervention of a court was necessary, to enable the trustee to execute his trust.

It is no doubt true that there was a time during the war, when it would have been an abuse of the trust to have exposed the property to sale, and perhaps hazardous to the trustee personally to have attempted to do so. If we should attempt to go this step further, and engraft upon the statute this, as an additional exception to the operation of the statute, it may with equal propriety be extended to all other personal trusts.

Mayo, the trustee, had ample time, both before and after the war, to execute this trust. He could have done so at his pleasure, or if Jones, who seems to have been interested in the execution of the trust, had desired that it should be executed, he could have compelled Mayo to do so or to resign.

We have already gone as far, under the sanction of the decisions of the Supreme Court of the United States, as we feel authorized to go, and particularly when the circumstances which induced the courts to make this exception, do but partially, if at all, exist in this case, and must hold that in this case the statute bar was not suspended by reason of the rebellion; and as no steps were taken by the trustee to assert his rights to the land for more than ten years, during all which time the complainant held continued, peaceable and adverse possession of the land, had made lasting and valuable improvements upon it, and cultivated it, and appropriated the profits of the cultivation to his own use, that the statute bar was complete. * * *

Holding, as we must, that the statute bar is complete, the decree of the court below must be in all things affirmed.