Opinion of the Court-Deady, J. 1882.] had been purchased by the husband with his money from a stranger. He could only be deprived of it by due process of law. (Starr v. Hamilton, 1 Deady, 275; Wythe v. Smith, 4 Saw. 23.) But the marriage of Juliet with Harne did not take place until after February, 1859, when, as defendant contends, the law in regard to the right of the husband in the wife's property was changed by art. XV, sec. 5 of the constitution of the state, which provides: "The property and pecuniary rights of every married woman at the time of marriage or afterwards acquired by gift, devise, or inheritance shall not be subject to the debts or contracts of the husband; and laws shall be passed for the registration of the wife's separate property." The language of this provision is somewhat vague and indefinite. It does not, in so many words, undertake to make any property of a married woman her separate property that was not so before or which would not be so independently of it. It only professes to exempt her property from the debts and contracts of her husband. Her separate property, if she had any, was already so exempt, and there was nothing for it to take effect upon, except her general property, which was then subject to the marital rights of her husband. But in Starr v. Hamilton, supra, 274, this court held that "so far, at least, as third persons are concerned," this clause ought to be construed as equivalent to a declaration that the property enumerated therein shall be the separate property of the wife, because "if the wife's property is not 'subject to the debts or contracts of the husband,' he is thereby precluded from any control over it, and if he has any benefit or interest in it, it is beyond the reach of his creditors." The same conclusion seems to have been reached by the supreme court of the state, in Rugh v. Ottenheimer, 6 Or. 231. Upon this point the plaintiff contends that the constitution does not prevent the husband from taking a freehold in his wife's property, as at common law, but only deprives him, in the interest of the family, of the power to dispose of it or charge it by his debts; and that he is nevertheless Opinion of the Court-Deady, J. [March, entitled to the possession for their joint lives, and if deprived of it may maintain an action therefor. Upon this theory of the case, the statute of limitations has never commenced to run against the wife, who since her marriage, and before the disseisin, has only held an estate in remainder in the property, and was not therefore entitled to the possession. The statute of limitations does not affect the right of a party entitled to the estate in remainder, during the continuance of the particular estate or freehold; nor does the laches of the tenant for life affect the remainder-man. (Jackson v. Schoonmaker, 4 Johns. 401; Jackson v. Sellick, 8 Id. 269; Moore v. Jackson, 4 Wend. 64.) But the right of the husband of Juliet as tenant of the particular estate, is barred by the twenty years' adverse possession of the defendant. The husband has never been under any disability, and was bound to bring his action for the possession within twenty years from the commencement of the adverse possession of the defendant, or after the passage of the act of October 17, 1878, within one year from the approval of that act, which he failed to do. The legal deduction from these premises is, that this action cannot be maintained, because the wife, as tenant of the remainder, is not entitled to the possession during her husband's life, and neither is the husband, as tenant of the freehold or life estate, so entitled, because his right is barred by the statute of limitations. But counsel for the plaintiff seeks to avoid this conclusion from his premises, by the suggestion that the conveyance of the husband and wife to the plaintiff united both estates in him—the particular or less estate being, in the language of the books, merged or sunk in the greater, and that therefore he can maintain this action as the grantee of the whole estate. A merger of estates only takes place where the greater and less estate meet in one and the same person. (2 Black. 177; Oregon Trust Company v. Shaw, 5 Saw. 388.) But in this case, the husband being disseised of his estate and barred of his remedy to recover it before the conveyance to the plaintiff was made, had then nothing in the premises to convey. The estate for his life which it is 1882.] Opinion of the Court-Deady, J. claimed that he acquired in the property on his marriage with Juliet was already out of him and practically in the defendant. And this is so, whether we consider the statute as operating to pass the title to the life estate from the husband to the defendant, or as merely rebutting the right of the latter to claim the same. In either case, the plaintiff has lost what the defendant has gained. (Ang. on Lim., secs. 1-11; Leffingwell v. Warren, 2 Black, 605; 420 Mining Co. v. Bullion Mining Co., 3 Saw. 657.) But upon the authority of Starr v. Hamilton, supra, and Rugh v. Ottenheimer, supra, the husband never acquired any estate in this property. The marriage having occurred after the constitution went into effect, the property is to be regarded as the separate property of the wife, in which he acquired no interest, and the case must therefore finally turn upon the question whether the wife had one year or six after the approval of the act of October 17, 1878, supra, in which to sue, or in other words, whether the five years additional given by section 17 of the code as amended by that act, applies to all actions brought by married women for the recovery of the possession of real property? The statute makes no distinction. It says, in effect, that a married woman shall have not to exceed five years within which to bring an action to recover the possession of real property in addition to the time allowed by section 4 of the code, to persons not laboring under such disability. But counsel for defendant contends, that as by section 7 of the act of October 21, 1878 (Ses. L., p. 93), it is provided, among other things, that a wife may prosecute and defend all actions at law or in equity for the preservation and protection of her rights and property, as if unmarried, therefore she not only may prosecute an action for the recovery of real property within the time allowed an unmarried one, but she must do so. This conclusion is based on the assumption that section 17 of the code as amended by the act of October 17th, supra, is, so far as it gives married women five years additional time in such cases, repealed by said section 7 of the act of October 21, supra. In support of the position counsel cite: Opinion of the Court-Deady, J. [March, Bull v. Bulard, 52 Barb. 141; Enos v. Buckley, 94 Ill. 458; Gray v. Yates, 67 Mo. 601; Slater v. Cave, 3 Ohio St. 87. In the first case the acts of 1860-2 having provided that a married woman might maintain an action for an injury to her person, as if single, and recover judgment therein to her sole and separate use, the court held that the prior statute extending the time of bringing such an action, in case the party injured was a married woman, was in effect thereby repealed, and that such action was barred by the lapse of six years as in ordinary cases. The philosophy of this ruling, if not the ruling itself, is, I think, unsound. So far as a married woman was exempt from the operation of the statute of limitations it was because of her status as a married woman, which was supposed to disqualify or disable her from asserting her rights, and not for the reason that she therefore might not be permitted to sue alone. The disability was imputed to her because during marriage she was regarded by the common law as being sub potestate viri, under the power of the husband (2 Kent, 129), and therefore not free to sue without his assent, even if she had the legal right to do so. In Wythe v. Smith, 4 Saw. 27, this court said: "The exemption proceeds upon the theory that while she [the wife] is under the disability of coverture, she is not in fact at liberty to sue without her husband's assent, even if the law will permit it." Indeed the husband may be interested against her, and to prevent her being injured by the operation of the statute while under this restraint, it was provided by the act of 21 James I, of which the American statutes are substantial copies, that the limitation should not run against a woman while she was married. In the second case it was held that the statute of 1861, which gave a married woman the same control over her property as a single one, repealed the disability clause as to married women in the limitation act of 1839. The third case is nowise in point, and the fourth one only decides that the phrase "within twenty-one years" in the limitation act of 1831 was the equivalent of "within the age of majority," and therefore the act of 1834, fixing the 1882.] Opinion of the Court-Deady, J. age of majority for females at eighteen years, so far modified or repealed it. But there is a material difference in these cases and the one under consideration. In all, the question is one merely of legislative intent. In the cases cited it was held that the prior statute was modified by the subsequent one. But the fact of the considerable lapse of time between the two statutes was a circumstance that favored that conclusion. Here, there is no such reason for inferring an intent to change. the law. On the contrary, the fact that the acts were passed at the same session and within four days of each other, bears strongly in the other direction. There is no direct conflict between the two acts. Repeals by implication, if permitted at all by the constitution of the state, are not favored. When there are two acts on the same subject, the rule is to give effect to both if possible. There must be a plain repugnancy to produce a repeal by implication. When both acts may stand, they shall. (Smith's Com., sec. 757; United States v. Tyner, 11 Wall. 92.) As already stated, a married woman could always sue alone in this state, when, as in this case, the action affected her separate property-that is, she could sue as a feme sole, and she can do no more under the act of 1878, supra. Yet the statute of limitations has always given her additional time on account of her status, within which to bring an action to recover real property. Indeed, until the act of 1878, supra, the time during which she was in the state of marriage was not counted as a part of the limitation, and she was entitled to the full period of twenty years, after the removal of such disability. It is evident from this, that up to 1878, it was not the intention of the legislature to compel a married woman to bring her action within the same time as an unmarried one, because it permitted her to do so. By the act of 1878 a radical change was made in the law. The general period of limitation was reduced from twenty to ten years; and the time allowed for the disability of marriage was reduced to five years at the furthest. But still a married woman, although she could sue as an unmarried one to recover her real property, was specially |