The exceptions to this rule are—first, where an account has been settled within the limited time ; 5 Bro. C. C. 187; Coster v, Murray, 5 Johns. Ch. (N. Y.) 522; second, where .within that time the mortgagee, by words spoken or written, or by deed, has clearly and unequivocally recognized the fact that he held as mortgagee ; 1 Sim. & Stu. 347; Marks v. Pell, 1 Johns. Ch. (N. Y.) 594; Elmendorf v. Taylor, 10 Wheat. (U. S.) 152, 6 L. Ed. 289; Dexter v. Arnold, 3 Sumn. 160, Fed. Cas. No. 3,859 ; by which recognition a subsequent purchaser, with actual or con structive notice of the mortgage, is barred; Heyer v. Pruyn, 7 Paige Ch. (N. Y.) 465, 34 Am. Dec. 355; third, where no time is fixed for payment, as in the case of a mortgage where the mortgagee is by agreement to en ter and hold till he is paid out of the rents and profits ; Babcock v. Kennedy, 1 Vt. 457, 18 Am. Dec. 695 ; fourth, where the mort gagor continues in possession of the whole or of any part of the premises; Sel. Cas. Ch. 55; Marks v. Pell, 1 Johns. Ch. (N. L) 594; Wilson v. Richards, 1 Neb. 342; and, fifth, where there is fraud on the part of the mort gagee, or at the time of the inception of the mortgage he has taken advantage of the necessities of the mortgagor ; Marks v. Pell, 1 Johns. Ch. (N. Y.) 594; 2 Cruise 161.
The trustee of real estate, under an express trust, as well as of personal, as we have seen, holds for his cestui que trust, and the latter is not barred of his right unless It be denied and repudiated by the trustee ; in which case the statute will begin to run from the denial or repudiation ; Taylor v. Benham, 5 How. (U. S.) 233, 12 L. 'Ed. 130; Key v. Hughes, 32 W. Va. 184, 9 S. E. 77; Reynolds v. Sumner, 126 Ill. 58, 18 N. E. 334, 1 L. R. A. 327, 9 Am. St. Rep. 523. In cases of implied, constructive, and resulting trusts, the rule is also the same as with reference to personal property. The statute is a bar even in cases where the conduct of the trustee was originally fraudulent; Higginbotham v. Burnet, 5 Johns. Ch. (N. Y.) 184; 2 Bro. C. C. 438.
Where a trustee who holds the legal title to the trust property, permits his right to bring an ejectment for a certain part there of to become barred, the beneficiary is also barred ; Ewing v. Shannahan, 113 Mo. 188, 20 S. W. 1065.
The lapse of time does not bar a defense resting upon an equitable title and posses sion; De Guire v. Lead Co., 38 Fed. 65 ; and staleness of demand cannot be urged against a right to relief in equity where plaintiff has been in continuous possession of the land ; Hemphill v. Hemphill, 99 N. C. 436, 6 S. i. 201.
The same general rules as regards per sons under disabilities apply in cases of real estate as have already been described as applicable to personalty at the time the right descends or the cause of action accrues, and prevent the running of the statute, till their removal ; but only such as existed at that time. When the statute once begins to run, no subsequent disability can stop it ; Mercer v. Selden, 1 How. (U. S.) 37, 11 L. Ed. 38; Eager v. Com., 4 Mass. 182; Walden v. Gratz, 1 Wheat. (U. S.) 292, 4 L. Ed. 94; Douglas v. Irvine, 126 Pa. 643, 17 Atl. 802 ; and there is no distinction in this respect between. vol untary and involuntary disabilities ; 4 Term 301: Fewell v. Collins, 3 Brev. (S. C.) 286. The disability of one joint-tenant, tenant in common, or co-parcener does not inure to the benefit of the other tenants ; Jackson v. Sel
lick, 8 Johns. (N. Y.) 262, 265; 2 Taunt. 441; Moore's Lessee v. Armstrong, 10 Ohio 11, 36 Am. Dec. 63 ; Doe v. Gullatt, 10 Ga. -218; Wade v. Johnson, 5 Humphr. (Tenn.) 117, 42 Am. Dec. 422.
It is impracticable here to give a com pend, or even an analysis, of the different statutes of the several. states. Nor, indeed, would such an analysis be of much service because of the frequent revision, changes, and modifications. The state statutes are substantially the same, differing only in de tails, and all are derived directly or indirect ly from the English statutes.
Of Criminal Proceedings. The time within which indictments may be found, or other proceedings commenced, for crimes and of fences varies considerably in the different jurisdictions. In' general, in all jurisdic tions, the length of time is adjusted in some proportion to the gravity of the offence. In dictments for murder, in most, if not all, of the states, may be found at any time during the life of the criminal after the death of the victim. Proceedings for less offences are to be commenced within periods varying from ten years to sixty days. See Whart. Cr. Pl. & Pr. § 316.
Although an offence on the face of the indictment is barred, yet the prosecution may prove, without averring it in the in dictment, that the defendant, having fled the state; was without the statute. But the better practice is to aver in the indictment the facts relied upon to toll the statute; Blackman v. Com., 23 W. N. C. (Pa.) 464. It is sufficient if he left the district of the offence and was found in another, where he did not reside, under circumstances indicat ing a purpose to evade the jurisdiction of the court having jurisdiction ; Greene v. U. S., 154 Fed.-401, 85 C. C. A. 251.
A criminal statute does not apply to quo warranto which is really a civil proceeding, though criminal in form ; High, Extraord. Leg. Rem. § 621.
Of Estates. A description either by ex press words or by intendment of law of the continuance of time for which the property is to be enjoyed, marking the period at which the time of enjoyment is to end. Prest. Est. 25.
The definition or circumscription, in any conveyance, of the interest which• the grantee is intended to take.
The term is used by different writers in different senses. Thus, it is used by Coke to denote the express definition of an estate by the words of its creation, so that it can not endure for any longer time than till the contingency happens upon which the estate is to fail; Co. Litt. 23 b. In San ders on Uses, 68, the term is used, however, in a broader and more general sense, as given in the second definition above. And, indeed, the same writers do not always con fine themselves to one use of the term ; see Fearne, Cont. Rem. Butler's note n, 9th ed. 10 ; 1 Steph. Com. 11th ed. 364, 527. For the distinctions between limitations and re mainders, see CONDITIONAL LIMITATIONS ; CONTINGENT REMAINDER.
In instruments. A limitation in an in strument is a provision that restricts the interest or property one may have in the subject-matter of such instrument. A. & E. Encyc.
A grant to the "heirs" of a living person will be construed as meaning children, if such appears to have been the intention of the grantor; Roberson v. Wampler, 104 Va. 380, 51 S. E. 835, 1 L. R. A. (N. S.) 318.