Elmendorf V. Taylor. bars an ejectment after the lapse of twenty years, 1825. constitutes no bar to a writ of right, even where the tenant counts on his own seisin, until thirty 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 sustain 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 Elmendorf 1825. the statute; but supported the bar when pleaded. The same principle is recognised in 3 Atk. Rep. 313. The rule appears to have been laid down Taylor. in 1 Ch. Cas. and to have been observed ever V. 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 acknowledgment 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 above fourteen years, which, as it would not bar 1825. an ejectment, so neither could it bar a bill in equity." The case of Bond v. Hopkins et al. (1 Sch. & 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 Elmendorf V.. Taylor Elmendorf V. Taylor. 1825. analogy to a writ of right, but is assumed as an acknowledged and settled principle that it acts from analogy to a writ of ejectment. In this case, 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 plaintiff's 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 acquiescence 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 this opinion was the Court. The case of Hovenden v. Lord Annesly, (2 Sch. & 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 V. Taylor. |