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wherever it would constitute a bar to an ejectment, did the plaintiff possess the legal title.

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(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 presúme, 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. DECREE. This cause came on, &c. on conElmendorf

sideration whereof, this Court is of opinion, that

there is error in the decree of the said Circuit Taylor.

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 discounteAanced, 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 bad 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,

Court, in this, that the said Court determined, that the entry in the bill mentioned, made by Walker Daniel, on the first day of April, 1784,

continued in quiet possession, paying interest on the mortgage, for
twenty years. It was finally determined, after much litigation,
that the devisee of the person really entitled under the limitation,
was barred by the length of time.
The case, as first decided in the Court of Chancery, will be
found reported in 2 Meriv. Rep. 173. 357. where it was determin-
ed, by Sir W. Grant, M. R., that the lapse of time was no bar by
analogy to the statute of limitations. Upon its afterwards coming
on before his successor, Sir T. Plumer, the latter delivered a learn-
ed and elaborate judgment, which will be found reported in 2 Ja-
cobs & Walker, 138. tending to show, that wherever in the claim
of a legal estate, the remedy is barred in a Court of law by the sta-
tute of limitations, the remedy for an equitable estate will be equally
barred, by the lapse of the same period of time, in a Court of
equity. An appeal was taken to the House of Lords, and in
moving the judgment of the House, Lord Eldon adverted to the
general principles adopted by Courts of equity on the subject of
length of time, and observed on “the vast difference between
trusts, some being express, some implied; some, relations formed
between individuals in the matter in which they deal with each
other, and in which it could hardly be said, that one was trustee, and
the other cestui que trust, and yet it could not well be denied, that
for some purposes they were so. Of this kind, he took the rela-
tien between mortgagor and mortgagee to be. 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 anything adverse
to it; a tenant, also, had a duty to preserve the interests of his
landlord; and many acts, therefore, of a trustee and 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.
But the case of a mortgagee was different, he being at liberty to
hold possession, and not becoming strictly a trustee until the mo-
ney was tendered to him, and having a right, if he continued in pos-
session for twenty years, without acknowledging the mortgage, to
turn round on the mortgagor, and say that the estate was his own.

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and explained on the first day of July of the same year, on which the plaintiff’s title is founded, is invalid; whereas, this Court is of opinion,

His lordship could not agree to, and had never heard of, such a
rule, as that adverse possession, however long, would not avail
against an equitable estate; he meant, where there was no duty
which the person who has it has undertaken to discharge for him
against whom he pleads adverse possession. The possession of
Lord Clinton was adverse; it had been said, that it was taken by
consent, founded on mistake; but that did not make the possession
the less adverse, because Lord Clinton took, and kept it for him-
self, where he owed, as it appeared to him, no duty to Lord Orford.
He concluded by stating his opinion to be, that adverse possession
of an equity of redemption for twenty years, was a bar to another
person claiming the same equity of redemption, and worked the
same effect, as disseisin, abatement, or intrusion, with respect to
legal estates; and that, for the quiet and peace of titles, and the
world, it ought to have the same effect. Lord Redesdale concur-
red, and the decree was affirmed.
Although, in general, lapse of time is not a bar to a direct trust,
as between trustee and cestui que trust, so long as there is a con-
tinuing and subsisting trust acknowledged and acted upon between
the parties, yet this must be understood as applying to such trusts
only as are the creatures of a Court of equity, or strict technical
trusts, and not to those which are within the cognisance of a Court
of law; for, in regard to all those trusts which are the ground of
an action at law, and where there is a concurrent jurisdiction at
law, and in equity, the rule is the same, and the statute is a bar,
both in a Court of law, and equity. (Kane v. Bloodgood, 7
Johns. Ch. Rep. 90. 127.) And, though in cases of trusts pecu-
liarly and exclusively of equity jurisdiction, the statute does not
apply; yet, if the trustee denies the right of the cestui que trust,
and the possession of the property becomes adverse, lapse of time
may constitute a bar in equity. (1b.) And where a person takes

possession of property in his own right, and is, afterwards, by evi

dence or construction, changed into a trustee, he may insist on the lapse of time as a bar. (Decquche v. Savatier, 3 Johns. Ch. Rep. 190.)


that the same is a valid entry. It is, therefore, 1825. ORDERED and DECREED, that the decree of the

Carneal said Circuit Court, dismissing the plaintiff's bill,

Banks. ought to be, and the same is hereby, reversed and annulled. And this Court is further of opi

Banks nion, that in cases of adversary title, such an ad- Carneal. versary possession as would bar an ejectment, did the plaintiff possess the legal title, constitutes also a bar to a bill in equity. It is, therefore, further ORDERED and DECREED, that this cause be remanded to the said Circuit Court, with instructions to take such further proceedings therein, conformably to this opinion, as may be agreeable to equity and good conscience. All which is ordered and decreed accordingly.


CARNEAL and others, Appellants, v. BANKS, Re


Banks, Appellant, v. CARNEAL and others, Re


The joinder of improper parties, as citizens of the same State, &c.

will not affect the jurisdiction of the Circuit Courts in equity, as between the parties who are properly before the Court, if a decree may be pronounced as between the parties who are citizens of the

same State. A decree must be sustained by the allegations of the parties, as well as by the proofs in the cause, and eannot be founded upon a fact not put in issue by the pleadings.

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