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 security, on the of October, 1850, executed to Loftus two notes 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.

5. NEW YORK INS. CO. v. STATHAM.

(Supreme Court of the United States, 1876. 93 U. S. 24, 23 L. Ed. 789.)

The first of these cases is here on appeal from, and the second and third on writs of error to, the Circuit Court of the United States for the Southern District of Mississippi.

The first case is a bill in equity, filed to recover the amount of a policy of life assurance, granted by the defendant (now appellant) in 1851, on the life of Dr. A. D. Statham, of Mississippi, from the proceeds of certain funds belonging to the defendant attached in the hands of its agent at Jackson, in that State. It appears from the statements of the bill that the annual premiums accruing on the policy were all regularly paid, until the breaking out of the late civil war, but that, in consequence of that event, the premium due on the 8th of December, 1861, was not paid; the parties assured being residents of Mississippi, and the defendant a corporation of New York. Dr. Statham died in July, 1862.

The second case is an action at law against the same defendant to recover the amount of a policy issued in 1859 on the life of Henry S. Seyms, the husband of the plaintiff. In this case, also, the premiums had been paid until the breaking out of the war, when, by reason thereof, they ceased to be paid, the plaintiff and her husband being residents of Mississippi. He died in May, 1862.

The third case is a similar action against the Manhattan Life Insurance Company of New York, to recover the amount of a policy issued by it in 1858, on the life of C. L. Buck, of Vicksburg, Miss.; the circumstances being substantially the same as in the other cases. Each policy is in the usual form of such an instrument, declaring that the company, in consideration of a certain specified sum to it in hand paid by the assured, and of an annual premium of the same amount to be paid on the same day and month in every year during the continuance of the policy, did assure the life of the party named, in a specified amount, for the term of his natural life. Each contained various conditions, upon the breach of which it was to be null and void; and amongst others the following: "That in case the said assured shall not pay the said premium on or before the several days hereinbefore mentioned for the payment thereof, then and in every such case the said company shall not be liable to the payment of the sum insured, or in any part thereof, and this policy shall cease and determine." The Manhattan policy contained the additional provision, that, in every case where the policy should cease or become null and void, all previous payments made thereon should be forfeited to the company.

The non-payment of the premiums in arrear was set up in bar of the actions; and the plaintiffs respectively relied on the existence of the war as an excuse, offering to deduct the premiums in arrear from the amounts of the policies.

The decree and judgments below were against the defendants.

Mr. Justice BRADLEY, after stating the case, delivered the opinion of the court.

We agree with the court below, that the contract is not an assurance for a single year, with a privilege of renewal from year to year by paying the annual premium, but that it is an entire contract of assurance for life, subject to discontinuance and forfeiture for non-payment of any of the stipulated premiums. Such is the form of the contract, and such is its character. It has been contended that the payment of each premium is the consideration for insurance during the next following year, as in fire policies. But the position is untenable. It often happens that the assured pays the entire premium in advance, or in five, ten or twenty annual instalments. Such instalments are clearly not intended as the consideration for the respective years in which they are paid; for, after they are all paid, the policy stands good for the balance of the life insured, without any further payment. Each instalment is, in fact, part consideration of the entire. insurance for life. It is the same thing, where the annual premiums are spread over the whole life. The value of assurance for one year of a man's life when he is young, strong, and healthy, is manifestly not the same as when he is old and decrepit. There is no proper relation between the annual premium and the risk of assurance for the year in which it is paid. This idea of assurance from year to year is the suggestion of ingenious counsel. The annual premiums are an annuity, the present value of which is calculated to correspond. with the present value of the amount assured, a reasonable percentage being added to the premiums to cover expenses and contingencies. The whole premiums are balanced against the whole insurance.

But whilst this is true, it must be conceded that promptness of payment is essential in the business of life insurance. All the calculations of the insurance company are based on the hypothesis of prompt payments. They not only calculate on the receipt of the premiums when due, but on compounding interest upon them. It is on this basis that they are enabled to offer assurance at the favorable rates they do. Forfeiture for nonpayment is a necessary means of protecting themselves from embarrassment. Unless it were enforceable, the business would be thrown into utter confusion. It is like the forfeiture of shares in mining enterprises, and all other hazardous undertakings. There must be power to cut off unprofitable members, or the success of the whole scheme is endangered. The insured parties are associates in a great scheme. This associated relation exists whether the company be a mutual one or not. Each is interested in the engagements of all; for out of the coexistence of many risks arises the law of average, which underlies the whole business. An essential feature of this scheme is the mathematical calculations referred to, on which the premiums and amounts assured are based. And these calculations, again, are based on the assumption of average mortality, and of prompt payments and compound interest thereon. Delinquency cannot be tolerated nor redeemed, except at the option of the company. This has always been the understanding and the practice in this department of business. Some companies, it is true, accord a grace of thirty days, or other fixed period, within which the premium in arrear may be paid, on certain conditions of continued good health, &c. But this is a matter of stipulation, or of discretion, on the part of the