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the Court itself, and is subject to its discretion. 1825. It is not, like the description of parties, an inflex

* Elmendorf ible rule, a failure to observe which turns the party out of Court, because it has no jurisdiction over his cause ; but, being introduced by the Court itself, for the purposes of justice, is susceptible of modification for the promotion of those purposes. In this case, the persons who are alleged to be tenants in common with the plaintiffs, appear to be entitled to a fourth part, not of the whole tract, but of a specially described portion of it, which may, or may not, interfere with the part occupied by the defendants. Neither the bill nor answers allege such an interference, and the Court ought not, without such allegation, to presume it. Had the decree of the Circuit Court been in favour of the plaintiff, and had this objection to it been deemed sufficient to induce this Court to reverse it, and send back the case for the examination of this fact, it could never have justified a dismission of the bill without allowing the plaintiff an opportunity of showing that he was the sole owner of the lands in dispute. In addition to these observations, it may be proper to say, that the rule which requires that all persons concerned in interest, however remotely, should be made parties to the suit, though applicable to most cases in the Courts of the United States, is not applicable to all. In the exercise of its discretion, the Court will require the plaintiff to do all in his power to bring every person concerned in interest before the Court. But, if the case may be completely de

Taylor.

1825. cided as between the litigant parties, the circum

stance that an interest exists in some other perElmendorf

son, whom the process of the Court cannot reach, as if such party be a resident of some other State, ought not to prevent a decree upon its merits. It would be a misapplication of the rule, to dismiss the plaintiff's bill because he has not done that which the law will not enable him to do.“

3. The third point in the defence is, the length of time which has elapsed since the plaintiff's equitable title accrued.

His patent was issued on the 11th of February, 1794, and those of the defendants are of prior date. His bill was filed on the 28th of December, 1815. Several of the defendants, in their

answers, claim the benefit of the length of time. Lapse of time, From the earliest ages, Courts of equity have an equitable bar, by analo- refused their aid to those who have neglected, of the statute for an unreasonable length of time, to assert

ns their claims, especially where the legal estate has been transferred to purchasers without notice. Although the statutes of limitations do not, either in England, or in these States, extend to suits in Chancery; yet the Courts in both countries have acknowledged their obligation. Their application, we believe, has never been controverted; and in the recent case of Thomas v. Harvie's heirs, decided at this term, it was expressly recognised. But, the statute of limitations, which

gy to the effects

of limitations at law.

a As to who are necessary parties to a bill in equity, vide ante, vol. 8. p. 451. note a.

Vide ante, p. 146.

bars an ejectment after the lapse of twenty years, 1825. constitutes no bar to a writ of right, even where

Elmendorf the tenant counts on his own seisin, until thirty

Taylor. years shall have elapsed. Whether a Court of equity considers an equitable claim to land as barred when the right of entry is lost, or will sustaip a bill as long as the mere right may be asserted, is a question of some difficulty, and of great importance. The analogy of a bill in equity to actions founded on a right of entry, seems to derive some title to consideration, from the circumstance, that the plaintiff does not sustain his claim on his own seisin, or that of his ancestor, but on an equity not necessarily accompanied by seisin, whereas seisin is an indispensable ingredient in a writ of right. But the case must depend upon precedent, and if the one rule or the other has been positively adopted, it ought to be respected.

In the case of Jenner v. Tracy, (3 P. Wms. 287. in a note, the defendant demurred to a bill to redeem mortgaged premises, of which the defendant had been in possession more than twenty years, and the demurrer was sustained; the Court observing, that “as twenty years would bar an entry or ejectment, there was the same reason for allowing it to bar a redemption." It is added, that “ the same rule was agreed in the case of Belch v. Harvey, by the Lord Talbot. In 3 Atk. Rep. 225. the Court expressed an opinion unfavourable to a demurrer in such a case, because the plaintiff ought to be at liberty, in his replication, to show, that he is within the exceptions of

Vol. X.

v.

1825. the statute; but supported the bar when pleaded.

The same principle is recognised in 3 Atk. Rep. Elmendorf

313. The rule appears to have been laid down . Taylor. in 1 Ch. Cas. and to have been observed ever

since.

In 3 Johns. Ch. Rep. Chancellor Kent said, * It is a well settled rule, that twenty years possession by the mortgagee, without account or aeknowledgment of any subsisting mortgage, is a bar to a redemption, unless the mortgagor can bring himself within the proviso in the statute of limitations."

These decisions were made on bills to redeem mortgaged premises; but as no reason can be assigned why an equity of redemption should be barred in a shorter time than any other equity, they appear to us to apply with equal force to all bills asserting equitable titles. We have seen no dictum asserting that the rule is not applicable to other equitable rights, and we should not feel justified in drawing a distinction which has never heretofore been drawn. But we think the rule has been applied to equitable rights generally.

In the 2d vol. of Eq. Cas. Abr. title “ Length of Time,” it is said generally, “ that possession for more than twenty years, under a legal title, shall never be disturbed in equity." The case of Cook v. Arnham, (3 P. Wms. 283.) was a bill brought to supply the want of a surrender of copyhold estate to the use of the will ; and it was objected, that the application to the Court had been unreasonably delayed. The Lord Chancellor said, that “ the length of time was not 1825. mer

Taylor,

above fourteen years, which, as it would not bar an ejectment, so neither could it bar a bill in equity.”

The case of Bond v. Hopkins et al. (1 Sch. f Lef. 413.) was a suit brought by a person claiming to be the heir, to set aside a will alleged to be obtained by fraud, to obtain possession of title papers, and to remove impediments out of the way in a trial at law. Length of possession was set up as a bar to the relief prayed for in the bill; and the question, which was discussed at the bar by very eminent counsel, was profoundly and deliberately considered by Lord Redesdale. The testator died in November, 1754, and the bill was filed in June, 1792, so that thirty-eight years had elapsed between the death of the testator and the filing of the bill. As this time was not sufficient to bar a writ of right, no question could have arisen respecting the act of limitations, had the rule of granting relief in equity depended on the ability of the plaintiff to maintain a writ of right. But the rule was clearly understood, both at the bar and by the Court, to be, that the equitable rule respecting length of time had reference to twenty years, the time during which the right of entry was preserved, not to the time limited for maintaining a writ of right. In the very elaborate and very able opinion given by the Chancellor, in this case, in which he investigates thoroughly the principles which govern a Court of equity in its decisions on the statute of limitations, it is not insinuated that it acts in any case from

was

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