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1825. logous cases, consider the equitable rights as bound by the same limitation," he says, "a 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 & 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 made 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,

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if, during all that period, the possession has been 1825. held under a claim unequivocally adverse, and without any thing having been done, or said, directly 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. 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

That

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1825. to rights, and titles of entry, and in which the period of limitation was twenty years, as that by which they were bound, and it was that upon which they had constantly acted."

V.

Taylor.

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,

wherever it would constitute a bar to an eject- 1825. ment, did the plaintiff possess the legal title."

(a) Although, in general, length of time is no bar to an express trust, clearly established to have once existed; yet, as length of time necessarily obscures all human evidence, and deprives parties of the means of ascertaining the nature of the original transactions, it operates, by way of presumption, in favour of innocence, and against the imputation of fraud. It was, therefore, held by this Court, that the lapse of forty years, and the death of all the original parties, would discharge and extinguish a trust, proved' once to have existed by strong circumstances; by analogy to the rule of law, which, after the lapse of time, presumes the payment of a debt, surrender of a deed, and extinguishment of a trust, where circumstances require it. (Prevost v. Gratz, ante, vol. VI. p. 481. 497.) In the case of Hillary v. Waller, (12 Ves. 265.) the whole subject of presumptions from the lapse of time is gone fully into by Lord ERSKINE, both as applicable to incorporeal hereditaments, and where there is a written title. He states the doctrine to be founded in reason, the nature and character of man, and the result of human experience. "It resolves itself into this; that a man will naturally enjoy what belongs to him." "It has been said, you cannot presume, unless you believe. But it is because there are no means of creating belief or disbelief, that such general presumptions are raised upon subjects, of which there is no record or written muniment. Therefore, upon the weakness and infirmity of all human tribunals, judging of matters of antiquity, instead of belief, which must be the foundation of the judgment upon a recent transaction, where the circumstances are incapable of forming any thing like belief, the legal presumption holds the place of particular and individual belief."

Although some of the principles laid down in this decision seem to be questioned by Mr. Sugden, in his treatise on the Law of Vendors and Purchasers, (p. 250.) yet it was cited with entire approbation, and its doctrine adopted by this Court, in determining the above case of Prevost v. Gratz, (ante, vol. VI. p. 504.)

In the case of Smith v. Clay, (reported in 3 Bro. Ch. Rep. 639. note,) and which is also cited and adopted by this Court in the case of Thomas v. Harvie's heirs, (ante, p. 146.) Lord CAMDEN says, "A Court of equity, which is never active in relief against VOL. X.

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1825.

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DECREE. This cause came on, &c. on consideration whereof, this Court is of opinion, that there is error in the decree of the said Circuit

conscience, or public convenience, has always refused its aid to stale demands, where the party has slept upon his right, and acquiesced for a great length of time. Nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the Court is passive, and does nothing. Laches and neglect are always discountenanced, and, therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this Court." After applying this principle to limit a bill of review and appeals, by analogy to the statute concerning writs of error, he proceeds to cite the maxim, Expedit reipublicæ ut sit finis litium, and to state that it had prevailed in the Court of Equity, in all times, without the help of an act of Parliament. "But as the Court has no legislative authority, it could not properly define the time of bar, by a positive rule, to an hour, a minute, or a year; it was governed by circumstances. But as often as Parliament had limited the time of actions and remedies to a certain period in legal proceedings, the Court of Chancery adopted that rule, and applied it to similar cases in equity. For where the legislature had fixed the time at law, it would have been preposterous for equity, which, by its own proper authority, always maintained a limitation, to countenance laches beyond the period that law has been confined to by Parliament. Therefore, in all cases, where the legal right has been barred by Parliament, the equitable right to the same thing has been concluded by the same bar. Thus, the account of rents and profits, in a common case, shall not be carried beyond six years. Nor shall redemption be allowed after twenty years possession in a mortgagee."

So, also, this Court, in the case of Hughes v. Edwards, (ante, vol. IX. p. 489. 497.) adopted the same principle in relation to the effect of the lapse of time upon the respective rights of mortgagor and mortgagee, and of purchasers claiming under the former.

The great case of Cholmondeley v. Clinton, cited in the text, was that of an estate subject to a mortgage in fee, being in settlement with an ultimate limitation to the right heirs of S. R.; A., on the expiration of the previous estate, entered, claiming to be entitled, under the limitation; and he, and after his death, his son,