Wagner et al. . Baird et al.

saving clause of the act of limitations of 1810, the statute does not begin to run until their death; and that their heirs may commence suit within the period of twenty-one years, limited in the statute, after the death of such ancestor. And, in accordance with this decision, the same court, at the same term, in the case of Lockwood and others v. Wildman and others, decided, that, under the act of 1810, persons residing out of the State at the commencement of adverse possession are not barred under twenty-one years after the disability is removed. These decisions have overruled the decision made by the same court, at a previous term, in the case of Whitney v. Webb, 10 Ohio, 513, and demonstrate that the claims here asserted by the complainants are not barred by the statute of limitations.

The complainants are not barred on the ground that their demand is stale by reason of the lapse of time. The rules in equity, which allow lapse of time to be interposed as a bar to equitable relief, have been adopted in analogy to the statute of limitations in cases at law, and are governed by precisely the same principles. And here it is worthy of remark, that the statute of limitations of Ohio, in one important particular, is essentially different from any of the statutes of limitations of the British Parliament which have come under our notice. In the British statutes the particular suits are named, to which a limitation, as to the time of bringing them, is fixed; but as no suits in equity are named in those statutes, the courts have adjudged that those statutes, in direct terms, did not apply to suits in equity. The statutes of Ohio limit the time for bringing "actions of ejectment, or any other action for the recovery of the title or possession of lands," &c., to twenty-one years. In Ohio, there is no other action or *suit known to the law for the recovery of the title [*241 to land, except an action or suit in equity. And we, therefore, insist that this is an action or suit, and the only one the law authorized us to bring, for the recovery of the title. and possession of the lands in question, and consequently it falls within the letter and spirit of our statutes of limitations. And if our construction of the statute be correct, it consequently results that the plea of the lapse of time has no application to this case, as the statute itself furnishes the rule, and the only rule, by which we can be barred. But suppose we are mistaken, in the construction we have contended for, will the condition of the defendants be improved? We think not because the courts of equity, in England and in this country, have adopted the statute of limitations as fur

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nishing reasonable equitable rules for the limitation of suits in equity.

His honor, Mr. Justice McLean, in delivering his opinion in this case, in the Circuit Court, said,-" Had the statute of limitations remained open for our contemplation, and we construed it as above intimated, which would not bar the complainants' rights, still I should have been clearly of the opinion that they were barred by the lapse of time." The position here assumed by the learned judge will, I trust, be deemed a sufficient apology, on my part, for dwelling a little longer on this branch of the case than I originally intended. The Supreme Court of this State, in the case of Amelia Fahr, Administrator of Casper Fahr, v. James Taylor and others, 10 Ohio, 106, decided that chancery will not set up lapse of time against a claim, when an action of debt for its recovery would not be barred by the statute of limitations. In the case of Ridley and others v. Holtman and others, 10 Ohio, 521, the court decided that equity ordinarily acts in analogy to the law, giving effect to the statute of limitations, and therefore, where the owner of an older entry and junior patent, who was never in the State, died, with an adverse possession, under a junior entry and older patent, against him, equity, after the lapse of twenty-one years from his death, will allow the act of limitations to be set up, as a bar against his heirs, seeking to get in the legal title under the older entry. And, in the case of Larrowe v. Beam, 10 Ohio, 498, the court said :— "We do not know that there is any case in which the defence has been distinctly placed upon this ground (lapse of time), where there was a statute of limitations in force applicable to the case. If the party be guilty of such laches in prosecuting his title as would bar him if his title were solely at law, he should be barred in equity."

Mortgages are held not to be within the words of the statute of limitations; and no positive rule hath, as yet,

*242] been fixed upon which shall be an absolute bar to redemption. But the making up of accounts, after long periods of time, being very difficult, and attended with great hardship on the mortgagee, it hath been thought reasonable to establish in equity, in analogy to the statute, a period at which, primâ facie, the right of redemption shall be presumed to be deserted by the mortgagor, unless he be capable of producing circumstances to account for his neglect, such as imprisonment, infancy, coverture, or by having been beyond seas, and not by having absconded, which is an avoiding or retarding of justice. (See Knowles v. Spence, Mos., 225; 1 Eq. Cas. Abr., 315; Ord v. Smith, Sel. Ch. Cas., 9, 10;

Wagner et al. v. Baird et al.

Id., 56; Jenner v. Tracy, 3 P. Wms., 287, n.; Belch v. Harvey, Id.; 3 Sugden on Vend., App., n. 15; Saunders v. Hoard. 1 Ch. R., 184; Clapham v. Bowyer, Id., 206; 3 Atk., 313: Bony v. Ridgard, 1 Cox, Ch. Cas., 149; Hever v. Livingston, 1 P. Wms., 263; Trash v. White, 3 Bro. Ch., 289; Leman v. Newnham, 1 Ves., 51; and Shipbrook v. Hinchingbrook, 13 Ves., 387.) And to preserve uniformity between the proceedings in courts of law and equity, twenty years after forfeiture and possession taken by the mortgagee, no interest having been paid in the mean time and the mortgagor laboring under none of the disabilities enumerated in the statute of limitations, hath been fixed upon as the period beyond which a right of redemption shall not be favored. (See 3 Johns. (N.Y.) Ch., 134; and Lamer v. Jones, 3 Har. & M. (Md.), 328; and Doe v. Calvert, 5 Taunt., 170.)

It has been said that this rule is not founded on the presumption of an absolute conveyance, but is merely a positive rule, introduced for the sake of quieting the title, after so long a neglect to redeem. Per Eyre, C. B., in Corbet v. Barker, 1 Anstr., 143. The rule was first hinted at in Winchcomb v. Hall, 1 Ch. R., 40, and Porter v. Emery, 1637, Id., 97; then in Saunders v. Hoard, 1 Ch. R., 184; and Clapham v. Bowyer, Id., 206; and afterwards adopted as a rule of court, by Lord Keeper Bridgman and the Master of the Rolls, in Pearson v. Pulley, 1 Ch. Cas., 102; and followed by Lord King, in White v. Ewer, 2 Ventr., 340. But the rule seems not to have been permanently settled till about the middle of the last century. So late as the year 1722, an appeal came on in the House of Lords, wherein the doctrine was but imperfectly acknowledged. It was, however, there held, that a mortgagee in possession for seventy years, under legal title, should not be redeemed or disturbed; for so long an acquiescence should be taken as an implied waiver of the right to redeem, especially when the rents were insufficient to keep down the interest for more than *fifty years. Stone v. Byrne, 2 Bro. P. C., 399; S. P., 3 Johns. (N. Y.) Ch., 129.

[*243

The rule, however, may now be considered as permanently established; and the principles on which it is founded are perfectly understood and clearly developed. It is true, courts of equity, by their own rules, independently of any statute of limitations, give great effect to length of time; but it is equally true, that they refer frequently to the statute of limitations, for the purpose of furnishing a convenient measure for the limitation of time, which might operate

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as a bar, in equity, to any particular demand. (See Beckford v. Wade, 17 Ves., 87.)

In Kane v. Bloodgood, 7 Johns. (N.Y.) Ch., 9 (affirmed in 8 Cow., 360), Chancellor Kent remarked, in substance, that the limitation of suits, being founded in public convenience, and attended with so much utility, the courts of equity have adopted principles analogous to those established by the statutes of limitations, as positive rules for their conduct.

Lord Camden, in Smith v. Clay, 3 Bro. Ch., 639, note, said, that laches and neglect were always discountenanced in equity; and therefore, from the beginning of that jurisdiction, there was always a limitation to suits. Expedit reipublicæ ut sit finis litium, was a maxim that had prevailed in chancery at all times, without the help of an act of Parliament. As, however, the court had no legislative authority, it could not define the bar by a positive rule. 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 had adopted that rule, and applied it to similar cases in equity; for when the legislature had fixed the time at law, it would have been preposterous for equity to continue laches beyond the period to which they had been confined by Parliament; and 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.

Lord Redesdale, in Hovenden v. Annesley, 2 Sch. & L., 607, said: "I think the statute of limitations must be taken, virtually, to include courts of equity; for when the legislature limited the proceedings at law, in certain cases, and provided no express limitations for proceedings in equity, it must be taken to have contemplated that equity followed the law; and therefore it must be taken to have virtually enacted, in the same cases, a limitation for courts of equity also."

In the case of the Marquis of Cholmondely v. Lord Clinton (see 2 Meriv., 171, and 2 Jac. & W., 190), upon appeal to the House of Peers, Lord Eldon said he could not agree to, and had never heard of, such a rule, as that adverse *244] *possession, however long, would not avail against an equitable estate; and he concluded by stating his opinion to be, that an 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 disseizin, abatement, or intrusion, with respect

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to legal estates; and that, for the quiet and peace of titles, and of the world, it ought to have the same effect. During that whole period of twenty years, in which Lord Clinton had held adverse possession of the premises in question, the Marquis of Cholmondely, or those under whom he claimed, was not laboring under any of the disabilities enumerated in the statute. So that the bar in chancery, in analogy to the statute of limitations, was complete. Lord Redesdale was clearly of the opinion, that the plaintiffs were barred by the effect of the statute of limitations; and that the bill, therefore, should be dismissed. He wished it to be understood that his decision rested, principally, on that ground. He remarked that it had been argued that the Marquis of Cholmondely might, at law, have had a writ of right, that was, a writ to which peculiar 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 related 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. He considered that the statute was a positive law, which ought to bind courts of equity, and that the legislature must have supposed that they would regulate their proceedings accordingly, by The decree of Sir Thomas Plumer was confirmed. The following clauses in Sir Thomas Plumer's opinion have a direct bearing on this question, viz.:-"Mrs. Damer, the devisee, is, on all sides, admitted to be the only person who could have had any claim of title under Horace, Earl of Orford, to this estate; and the full period of twenty years having elapsed since the death of George, Earl of Orford, when that title, if at all, first accrued, the remedy would have been taken away by the statute, in consequence of the laches and non-claim. The lapse of twenty years affords a substantive, insuperable plea in bar. It is the fixed limit to the remedy, the tempus constitutum; one day beyond is as much too late as one hundred years. This is the peremptory, inflexible rule of law, fixed by positive statutes, if there has been adverse possession, and no disability or fraud. No plea of poverty, ignorance, or mistake can be of any avail. However clear and indisputable the title, if the merits could be inquired into," &c.

it.

Lord Chancellor Manners, in Medlicott v. O'Donnell,

1 Ball & B., 164, thus expressed himself:-"I think, [*245 then, I stand well supported by principle and authority in saying that the court is bound to regulate its proceedings by