Although the statutes of limitations do not apply in terms to
courts of equity, yet the period of limitation which takes away a
right of entry or an action of ejectment has been held by analogy
to bar relief in equity even where the period of limitation for a
writ of right or other real action had not expired.
Where an adverse possession has continued for twenty years, it
constitutes a complete bar in equity wherever an ejectment would be
barred if the plaintiff possessed a legal title.
The rule which requires all the parties in interest to be
brought before the court does not affect the jurisdiction, but is
subject to the discretion of the court, and may be modified
according to circumstances.
In the courts of the United States, wherever the case may be
completely decided as between the litigant parties, an interest
existing in some other person whom the process of the court cannot
reach, as if such party be a resident of another state, will not
prevent a decree upon the merits.
The courts of every government have the exclusive authority of
construing its local statutes, and their construction will be
respected in every other country.
This Court respects the decisions of the state courts upon their
local statutes in the same manner as the state courts are bound by
the decisions of this Court in construing the Constitution, laws,
and treaties of the union.
In Kentucky, a survey must be presumed to be recorded at the
expiration of three months from its date, and an entry dependent on
it is entitled to all the notoriety of the survey as a matter of
record.
An entry in the following words:
"W.D. enters eight thousand acres, beginning at the most
southwestwardly corner of D.R.'s survey of eight thousand acres,
between Floyd's Fork and Bull Skin, thence along his westwardly
line to the corner; thence the same course with J.K.'s line north
two degrees west, nine hundred and sixty-four poles to a survey of
J.L. for twenty-two thousand acres; thence with Lewis' line, and
from the beginning south seven degrees west till a line parallel
with the first line will include the quantity"
is a valid entry.
Such an entry is aided by the notoriety of the surveys which it
calls to adjoin where those surveys had been made three months
anterior to its date.
This was a bill in equity brought by the appellant, Elmendorf,
in the Court below to obtain a conveyance of lands held by the
respondents under a prior grant and under entries which were all
older than his entry. But the defendants below relied entirely on
their patent, and the case consequently depended on the validity of
the plaintiff's entry. This entry was made on 19 April, 1784, as
follows:
"Walker Daniel enters 8,000 acres, beginning at the most
southwestwardly corner of Duncan Rose's survey of 8,000 acres,
between Floyd's Fork and Bull Skin; thence along his westwardly
line to the
Page 23 U. S. 154
corner; thence the same course with Granville Smith's lower line
to John Lewis' corner; thence with Lewis' line, and from the
beginning south 7� west, till a line parallel with the first will
include the quantity."
This entry was afterwards explained and amended on 1 July, 1784,
so as to read as follows:
"Walker Daniel enters 8,000 acres, beginning at the most
southwestwardly corner of Duncan Rose's survey of 8,000 acres,
between Floyd's Fork and Bull Skin; thence along his westwardly
line to the corner; thence the same course with James Kemp's line
north 2� west 964 poles, to a survey of John Lewis for 22,000
acres; thence with Lewis' line, and from the beginning south 7�
west, till a line parallel with the first line will include the
quantity."
The plaintiff's bill was dismissed by the Court below, and the
cause brought by appeal to this Court.
Page 23 U. S. 157
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This suit was brought by the appellant, Elmendorf, in the Court
for the Seventh Circuit and District of Kentucky to obtain a
conveyance of lands held by the defendants under a prior grant and
under entries which are also older than the entry of the plaintiff.
As the defendants do not adduce their entries, and rely entirely on
their patent, the case depends on the validity of the plaintiff's
entry. That was made in April, 1784, and was afterwards, in July of
the same year, explained or amended so as to read as follows:
"Walker Daniel enters 8,000 acres beginning at the most
southwestwardly corner of Duncan Rose's survey of 8,000 acres
between Floyd's Fork and Bull Skin; thence along his westwardly
line to the corner; thence the same course with James Kemp's line,
north 2� west 964 poles to a survey of John Lewis for 22,000 acres;
thence with Lewis' line, and from the beginning south 7� west till
a line parallel with the first line will include the quantity."
As this entry begins as "the most southwestwardly corner of
Duncan Rose's survey of 8,000 acres between Floyd's Fork and Bull
Skin," the first inquiry is whether this survey was at the time an
object of sufficient notoriety to give validity
Page 23 U. S. 158
to an entry calling for one of its corners as a beginning. It is
not pretended that the survey itself had acquired this notoriety;
but the plaintiff contends that it had become a matter of record,
and that subsequent purchasers were on that account bound to know
its position in like manner as they are bound to know the position
of entries. The Land Law prescribes that surveys shall be returned
to the office and recorded in a record book, to be kept for that
purpose by the principal surveyor, within three months from the
time of their being made. They are to be returned to the land
office in twelve months from their date, during which time the
surveyor is forbidden to give a copy to any person other than the
owner.
It is contended by the defendants that this prohibition to give
a copy of the plot and certificate of survey, excludes the idea of
that notoriety which is ascribed to a record. Though inserted for
preservation in a book which is denominated a book of record, it
does not become, in fact, a record until it shall partake of that
characteristic quality of a record, on which the obligation to
notice it is founded, being accessible to all the world. Were even
an inspection of the book demandable as matter of right, which the
defendants deny, that inspection would, they say, from the nature
of the thing, be of no avail, unless a copy was also attainable.
They insist, therefore, that the notoriety of these surveys is not
to be implied from the fact that the three months had expired,
during which they were directed by law to be recorded.
Page 23 U. S. 159
The plaintiff contends that the book of surveys has every
characteristic of a record, except that the surveyor is restrained
from granting copies until the time limited by law for the return
of surveys to the land office shall have expired, and denies that
the notoriety attached to a record is dependent entirely on the
right to demand a copy of it. He maintains the right to inspect it,
and insists that this right has been considered by the legislature
as giving sufficient notice to all persons interested in the
property to enter a caveat against the issuing of a patent, from
which he implies that it is intended as a record to give notice,
although a copy of it cannot be obtained.
Were this question now for the first time to be decided, a
considerable contrariety of opinion respecting it would prevail in
the Court, but it will be unnecessary to discuss it if the point
shall appear to be settled in Kentucky.
This Court has uniformly professed its disposition in cases
depending on the laws of a particular State to adopt the
construction which the Courts of the State have given to those
laws. This course is founded on the principle, supposed to be
universally recognized, that the judicial department of every
government, where such department exists, is the appropriate organ
for construing the legislative acts of that government. Thus, no
Court in the universe which professed to be governed by principle
would, we presume, undertake to say that the Courts of Great
Britain or of France or of any other nation had misunderstood their
own statutes, and therefore erect
Page 23 U. S. 160
itself into a tribunal which should correct such
misunderstanding. We receive the construction given by the Courts
of the nation as the true sense of the law, and feel ourselves no
more at liberty to depart from that construction, than to depart
from the words of the statute. On this principle, the construction
given by this Court to the constitution and laws of the United
States is received by all as the true construction, and on the same
principle the construction given by the Courts of the several
States to the legislative acts of those States is received as true
unless they come in conflict with the constitution, laws, or
treaties of the United States. If, then, this question has been
settled in Kentucky, we must suppose it to be rightly settled.
The defendants contend that conflicting opinions have been given
in the State and that the question is still open, while the
plaintiff insists that the real question -- that is, the notoriety
of a survey after being made three months -- has never been
determined in the negative.
The first case of which we have any knowledge is
Sinclair v.
Singleton, Hughes 92. The decision of the court was in favor
of the validity of an entry which calls for the lines of a survey.
The Court is not in possession of the book in which the case is
reported, but judging from the references made to it in subsequent
cases, the entry must have been made within twelve, and probably
within three months of the date of the survey.
The next case in which the question was directly
Page 23 U. S. 161
made is
Key v. Matson, Hardin 70, decided in the fall
term of 1806. The survey had not been made three months, at the
date of the entry, and the court determined that it was not an
object of notoriety. A rehearing was moved for, and according to
the course of the Court of Appeals of Kentucky, errors were
assigned in the original decree. The first was that
"the court has decided that an entry dependent on a survey not
made three months is void, whereas, according to law and former
decisions, such an entry ought to have been valid."
The court adhered to its first decision, and used expressions
which, though applied to a case in which the entry was made before
the expiration of three months after the survey on which it
depended, yet indicated the opinion that an entry made after the
expiration of three months from the date of the survey, would be
equally invalid.
Moore v. Whitlege, Hardin 89, and
Respass v.
Arnold, Hardin 115, decided in the spring of 1807, were on the
authority of
Key v. Matson, and were also cases in which
the entries were made a few weeks after the surveys. The case of
Cartwright v. Collier, Hardin 179, decided in the spring
of 1808, was one in which the entry was made only fifteen days
after the survey. In
Ward v. Lee, 1 Bibb 27, decided in
1808, the entry called for a survey which had been made twentythree
days, of the return of which, to the office there was no proof. The
judge adds, "if it had been returned and recorded,
Page 23 U. S. 162
yet no person was entitled to a copy." This last observation is
indicative of the opinion, that a survey, though recorded, would
not become an object of notoriety until a copy of it was
demandable; but it was made in a case in which that point did not
occur. The case of
Cleland's Heirs v. Gray, decided at the
same time, is of the same character. The survey was made sixteen
days before the entry which called to adjoin it. The judge
says,
"It is clear that no description in this certificate of Evan
Shelby's survey can aid Weeden's entry, because it does not appear
that the certificate was even made out or deposited in the
surveyor's office at the date of Weeden's entry. But if it had been
recorded, yet it was inaccessible to holders of warrants. They were
not entitled to a copy until twelve months after the making of the
survey, nor was the surveyor himself bound to record it in less
than three months after the survey was made."
In the case of
Galloway v. Neale, 1 Bibb 140, the judge
who delivered the opinion of the court, states the law thus:
"If the holder of a warrant adopts a survey previously made upon
another warrant as the basis of a location, he must prove the
notoriety of the survey at that period, otherwise his location
cannot be supported. If he has adopted such survey at a period
earlier than that at which the law has opened the record thereof
for copies, he must prove its notoriety by evidence
aliunde."
This plain declaration of the opinion of the court on this point
was, however, made in a
Page 23 U. S. 163
case in which it did not arise. The survey had preceded the
entry which called for it, more than twelve months.
The cases of
Davis v. Bryan, 2 Bibb 113, and
Davis
v. Davis, 2 Bibb 137, decided in the spring of 1810, were,
each of them, cases in which the surveys preceded the entries
calling for them, less than three months.
It is, then, true that from 1806 to 1810, inclusive, the
prevailing opinion of the court of Kentucky was that an entry could
derive no aid from the description contained in the plat and
certificate of a survey for which it called until that survey had
been made twelve months, but it is also true that this opinion has
been advanced only in cases in which the point did not occur.
The first case in which the point actually occurred was
Carson v. Hanway, 3 Bibb 160. The entry was made on 9
February, 1784, and called for a survey made on 15 February, 1783.
The entry was supported on the principle that the plat and
certificate of survey constituted a part of it. In delivering the
opinion of the court, the judge said
"when the survey has been so long made, that the law requires it
to be of record, it will be presumed to be so, and a call for its
lines, in an entry, will render it a part of the description of
such entry."
At the preceding term, before the same judges, the case of
Bush v. Jamison, 3 Bibb 118, was argued, and the court
determined that an entry could not be aided by the description
contained in a survey which had been made only seven days
Page 23 U. S. 164
prior to the entry which called to adjoin it. In giving its
opinion, the court says,
"How far a subsequent adventurer would have been bound by a
description given in the survey of its beginning corner, if the
survey had been of record is not material to inquire, for there is
no proof that the survey was in fact of record, and as the law did
not require that it should have been recorded at the date of the
entry, a presumption that it was cannot be indulged, according to
any rule of probability or on any principle recognized in former
adjudications of this court."
These cases, decided so near each other by the same judges, show
clearly by the terms in which they are expressed that the
distinction between a survey, neither recorded in fact nor in
presumption of law, was in the mind of the court, and that its
former adjudications were considered.
Reed's Heirs v. Dinwiddie, 3 Marsh. 185, was decided in
the year 1820. In that case an entry called for a survey which had
been made six months, and the court determined that the person
claiming under this entry might avail himself of the notoriety
contained in the certificate of survey, "which, from its date, must
have been of record."
Jackman's Heirs v. Walker's Heirs, 3 Litt. 100, is the
last case which has been cited. It was decided in 1823. The surveys
were made about ten months before the entry, which called to adjoin
them, and the court allowed to the entry all the aid which could be
derived from the
Page 23 U. S. 165
description contained in the next certificate of survey,
because
"from the length of time they had been made before the date of
the entry in question, the law required them to be of record, and
of course they must be presumed to be so."
From the year 1813, then, to the present time, the courts of
Kentucky have uniformly decided that a survey must be presumed to
be recorded at the expiration of three months from its date, and
that an entry dependent on it is entitled to all the notoriety
which is possessed by the survey. We must consider the construction
as settled finally in the courts of the State, and that this court
ought to adopt the same rule, should we even doubt its
correctness.
We think, then, that the entry under which the plaintiff claims,
is aided by the notoriety of the surveys which it calls to adjoin,
if those surveys have been made three months anterior to its
date.
This depends on the question whether it is to date from April or
July, 1784. The defendants insist that the amendment, or
explanation, of the first of July, does not change the ground
originally occupied, and is therefore, not to be considered as
having any influence on the date of the entry, or as connecting it
with the surveys mentioned in the amendment or explanation.
We cannot think so. This amendment would be seen by subsequent
locaters, and would give them as full notice that the entry
adjoined the surveys of Duncan Rose, James Kemp, and John Lewis as
they would have received had the
Page 23 U. S. 166
original entry been made on that day. Were it then to be
conceded that the original entry, calling for Greenville Smith's
line, instead of James Kemp's, would have been construed to cover
the same ground which it now covers, still we perceive no
substantial reason for refusing to the change made in its terms any
advantage belonging to the date of that change.
We think, then, for the purpose of the present inquiry, the
entry is to be considered as if made on the first of July, 1784,
and is entitled to all the notoriety of the surveys for which it
calls.
This being established, we do not understand that any
controversy remains on the question of notoriety. Some of the
objects called for in the surveys are so well known, as to fix
incontrovertibly the beginning of the entry made by Walker Daniel,
and its validity is not questioned on any other ground.
The validity of the plaintiff's entry being established, it
remains to consider the other objections which are made to a decree
in his favor.
2. It is contended, that he is a tenant in common with others,
and ought not to be permitted to sue in equity, without making his
cotenants parties to the suit.
This objection does not affect the jurisdiction, but addresses
itself to the policy of the court. Courts of equity require that
all the parties concerned in interest shall be brought before them,
that the matter in controversy may be finally settled. This
equitable rule, however, is framed by
Page 23 U. S. 167
the court itself, and is subject to its discretion. It is not,
like the description of parties, an inflexible rule a failure to
observe which turns the party out of court because it has no
jurisdiction over his cause, but, being introduced by the court
itself for the purposes of justice, is susceptible of modification
for the promotion of those purposes. In this case, the persons who
are alleged to be tenants in common with the plaintiffs appear to
be entitled to a fourth part not of the whole tract, but of a
specially described portion of it which may or may not interfere
with the part occupied by the defendants. Neither the bill nor
answers allege such an interference, and the court ought not,
without such allegation, to presume it. Had the decree of the
circuit court been in favor of the plaintiff, and had this
objection to it been deemed sufficient to induce this Court to
reverse it and send back the case for the examination of this fact,
it could never have justified and mission of the bill without
allowing the plaintiff an opportunity of showing that he was the
sole owner of the lands in dispute. In addition to these
observations, it may be proper to say that the rule which requires
that all persons concerned in interest, however remotely, should be
made parties to the suit, though applicable to most cases in the
courts of the United States, is not applicable to all. In the
exercise of its discretion, the court will require the plaintiff to
do all in his power to bring every person concerned in interest
before the court. But if the case may be completely decided
Page 23 U. S. 168
as between the litigant parties, the circumstance that an
interest exists in some other person, whom the process of the court
cannot reach, as if such party be a resident of some other state,
ought not to prevent a decree upon its merits. It would be a
misapplication of the rule to dismiss the plaintiff's bill because
he has not done that which the law will not enable him to do.
3. The third point in the defense is the length of time which
has elapsed since the plaintiff's equitable title accrued.
His patent was issued on 11 February, 1794, and those of the
defendants are of prior date. His bill was filed on 28 December,
1815. Several of the defendants, in their answers, claim the
benefit of the length of time.
From the earliest ages, courts of equity have refused their aid
to those who have neglected for an unreasonable length of time to
assert their claims, especially where the legal estate has been
transferred to purchasers without notice. Although the statutes of
limitations do not, either in England or in these states, extend to
suits in chancery, yet the courts in both countries have
acknowledged their obligation. Their application, we believe, has
never been controverted, and in the recent case of
Thomas v.
Harvie's Heirs, decided at this term, it was expressly
recognized. But the statute of limitations, which
Page 23 U. S. 169
bars an ejectment after the lapse of twenty years, constitutes
no bar to a writ of right, even where the tenant counts on his own
seizin, 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 seizin, or that of his ancestor, but
on an equity not necessarily accompanied by seizin, whereas seizin
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 Lord Talbot. In 3 Atk. 225, the court expressed an
opinion unfavorable 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
Page 23 U. S. 170
the statute, but supported the bar when pleaded. The same
principle is recognized in 3 Atk. 313. The rule appears to have
been laid down in 1 Ch.Cas. and to have been observed ever
since.
In 3 Johns.Ch., 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
Page 23 U. S. 171
above fourteen years, which, as it would not bar an ejectment,
so neither could it bar a bill in equity."
The case of
Bond v. Hopkins, 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 thirtyeight 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
Page 23 U. S. 172
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 plaintiffs 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
Page 23 U. S. 173
Bond, the son and heir of the testator, returned from America,
had preserved the equity of the 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 analogous
Page 23 U. S. 174
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
Marquis Cholmondeley v. Lord
Clinton, 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 labor 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 nonclaim 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,
Page 23 U. S. 175
if, during all that period, the possession has been held under a
claim unequivocally adverse, and without anything having been done
or said, directly or indirectly, to recognize 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 anything
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. That 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
Page 23 U. S. 176
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."
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
Page 23 U. S.
177
wherever it would constitute a bar to an ejectment, did the
plaintiff possess the legal title.
Page 23 U. S. 178
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
Page 23 U. S. 179
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,
Page 23 U. S. 180
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
Page 23 U. S. 181
that the same is a valid entry. It is therefore ORDERED and
DECREED that the decree of the said circuit court dismissing the
plaintiff's bill ought to be, and the same is hereby reversed and
annulled. And this Court is further of opinion that in cases of
adversary title, such an adversary 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.