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1825. analogy to a writ of right, but is assumed as an

a cknowledged and settled principle that it acts Elmendorff

from analogy to a writ of ejectment. In this case, Taylor. a suit had been instituted by John Bond, the

grandfather of the plaintiff, as early as 1755, and a decree pronounced in 1770. The full benefit of this decree was not obtained, and John Bond took forcible possession of a part of the property, of which he was dispossessed by order of the Court, on a bill for that purpose, brought by the defendant. The said John Bond died in prison, in 1774, having first devised the property in dispute to his son Thomas, then an infant, for life, with remainder to his first, and other sons, in strict settlement. Soon after his death, an ejectment was brought by the defendant, to recover part of the property in possession of Bond; and in 1776, a bill was filed by Thomas Bond, then a minor, to enjoin the defendants from proceeding in their ejectment, and to have the will delivered up. Various orders were taken'; and in June, 1792, an original bill, in the nature of a bill of revivor, was filed by Thomas Bond, and his eldest son Henry. In discussing this case, so far as respected length of time, no doubt was entertained that the plaintiffs would have been barred of all relief in equity, by a quiet acquiescence in the possession of the defendants for twenty years. It was a strong case of fraud, but an acquies cence of twenty years would have closed the Court of Equity against the plaintiffs. This was not questioned; but it was insisted that the pendency of suits, from the year 1755, when John

Bond, the son and heir of the testator, returned 1825. from America, had preserved the equity of the Elmendorf plaintiffs, unaffected by the lapse of time; and of movie this opinion was the Court.

The case of Hovenden v. Lord Annesly, (2 Sch. d. Lef. 607.) was a bill filed in May, 1794, to set aside a conveyance made in July, 1726, alleged to have been fraudulently obtained. There were some circumstances on which the plaintiff relied, as relieving his case from the laches justly imputable to him for permitting such a length of time to elapse ; but they need not be noticed, because they were deemed insufficient by the Chancellor, and the bill was dismissed. In discussing this point, Lord Redesdale reviewed the cases which had been determined, and said, " that it had been a fundamental law of state policy, in all countries, and at all times, that there should be some limitation of time, beyond which the question of title should not be agitated. In this country, the limitation has been fixed (except in writs of right, and writs depending on questions of mere title) at twenty years." • But it is said, that Courts of equity are not within the statute of limitations. This is true in one respect; they are not within the words of the statutes, because the words apply to particular legal remedies; but they are within the spirit and meaning of the statutes, and have been always so considered.” After reasoning for some time on this point, and citing several cases to show “ that wherever the legislature has limited a period for law proceedings, equity will, in ana

Taylor.

CUS

1825. logous cases, consider the equitable rights as

bound by the same limitation,” he says, “a Elmendorf

Court of equity is not to impeach a transaction on the ground of fraud, where the fact of the alleged fraud was within the knowledge of the party sixty years before. On the contrary, I think the rule has been so laid down, that every right of action in equity, that accrues to the party, whatever it may be, must be acted upon, at the utmost, within twenty years."

This question was fully discussed, and solemnly, and, we think, finally decided, in the case of the Marquis Cholmondeley v. Lord Clinton et al. reported in the 2d vol. of Jacobs of Walker. In that case, the title accrued in December, 1791, and the bill was filed in June, 1812. Other points were made; but the great question on which the cause depended, was the length of time which had been permitted to elapse ; and this question, after being argued with great labour and talent at the bar, was decided by the Court, upon a full review of all the cases which are to be found in the books. It was considered, and was treated by the Court, as one of the highest importance ; and the opinion was unequivocally expressed, that “ both on principle and authority, the laches and non-claim of the rightful owner of an equitable estate, for a period of twenty years, (supposing it the case of one who must, within that period, have inade his claim in a Court of law, had it been a legal estate,) under no disability, and where there has been no fraud, will constitute a bar to equitable relief, by analogy to the statute of limitations,

Vas

v.

if, during all that period, the possession has been 1825. held under a claim unequivocally adverse, and

Elmendorf without any thing having been done, or said, di

Taylor. rectly or indirectly, to recognise the title of such rightful owner by the adverse possessor.” Upon this ground alone the bill was dismissed. The plaintiff appealed to the House of Lords, and the decree was affirmed.

The Lord Chancellor, in delivering his opinion in the House of Lords, took a distinction, as to length of time, between trusts, “ some being express, and some implied.” “In the case of a strict trustee, it was his duty to take care of the interest of his cestui que trust, and he was not permitted to do any thing adverse to it; a tenant also had the duty to preserve the interests of his landlord; and many acts, therefore, of a trustee, and a tenant, which, if done by a stranger, would be acts of adverse possession, would not be so in them, from its being their duty to abstain from them.”

In a case of actual adverse possession, however, as was that before the House, his lordship considered twenty years as constituting a bar. Lord Redesdale was of the same opinion, and, in the course of his address, remarked, that it had been argued, that the Marquis Cholmondeley might, at law, have had a writ of right. That was a writ to which particular privileges were allowed, but Courts of equity had never regarded that writ, or writs of formedon, or others of the same nature. They had always considered the provision in the statute of James, which applied

1825. to rights, and titles of entry, and in which the Elmendorf P

period of limitation was twenty years, as that by

which they were bound, and it was that upon Taylor.

which they had constantly acted."

This is not an express trust. The defendants are not, to use the language of the Lord Chancellor in the case last cited, “strict trustees, whose duty it is to take care of the interest of cestui que trusts, and who are not permitted to do any thing adverse to it.” They hold under a title in all respects adversary to that of the plaintiff, and their possession is an adversary possession. In all cases where such a possession has continued for twenty years, it constitutes, in the opinion of this Court, a complete bar in equity. An ejectment would be barred, did the plaintiff possess a legal title.

This point has been decided in the same manner by the Courts of Kentucky. The counsel for the plaintiff insist, that those decisions are founded on the peculiar opinions entertained by that Court respecting writs of right. We do not think so. Their doctrine on that subject is, indeed, used as an auxiliary argument; but it is merely auxiliary to an opinion formed without its aid.

The decree of the Circuit Court is to be reversed, and the cause remanded to that Court, with instructions, that the entry under which the plaintiff claims is valid; but that the adversary possession of the defendants respectively, constitutes a complete bar to the plaintiff's bill,

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