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wherever it would constitute a bar to an ejectment, did the plaintiff possess the legal title.
1825. El Elmendorf
of press the na
(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
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
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
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.