There is a defense peculiar to courts of equity founded on lapse
of time and the staleness of the claim, where no statute of
limitations directly governs the case. In such cases, the court
often acts upon its own inherent doctrine of discouraging, for the
peace of society, antiquated demands by refusing to interfere where
there has been gross laches in prosecuting rights or long
acquiescence in the assertion of adverse rights.
The rule upon this subject, originally laid down by Lord Camden
in
Smith v. Clay, 3 Brown's Chancery Reports 640, note,
and adopted by this Court in
42 U. S. 1 How.
189, again asserted.
Long acquiescence and laches by parties out of possession are
productive of much hardship and injustice to others, and cannot be
excused but by showing some actual hindrance or impediment caused
by the fraud or concealment of the party in possession which will
appeal to the conscience of the chancellor.
The party guilty of such laches cannot screen his title from the
just imputation of staleness merely by the allegation of an
imaginary impediment or technical disability.
The facts in this case bring it within the operation of the
above principles, and the bill must therefore be dismissed.
Page 48 U. S. 235
The case as set forth by the complainants is contained in the
following extract from the brief of Mr. Ewing, one of their
solicitors.
"The bill, which was filed on 18 November, 1840, charges that on
or about 21 November, 1783, Brigadier-General Robert Lawson
obtained of the State of Virginia a military land warrant, No.
1,921, for 10,000 acres of land due him for military services in
the Revolutionary war in the Virginia line on Continental
establishment."
"That prior to 12 January, 1788, said warrant was lodged in the
office of Richard C. Anderson, then Principal Surveyor of the
Virginia Military Lands, and that prior to 4f June, 1794, divers
entries had been made on said warrant, to-wit, entries Nos. 1,704,
1,705, 1,706, 1,707, 1,714, 1,715, 1,716, 1,717, 1,718, and 1,719,
of 1,000 acres each; and that Nos. 1,704, 1,705, and 1,706 had been
withdrawn and reentered, so as to leave Nos. 1,707 and 1,714 the
first subsisting entries made for the said Robert Lawson on the
surveyor's books."
"That on 4 June, 1794, the said Robert Lawson, by deed of
indenture of three parts, between him, the said Robert Lawson, of
the first part, his wife Sarah Lawson, of the second part, and
James Speed, George Thompson, Joseph Crocket, and George Nicholas,
of the third part, for the consideration therein expressed,
conveyed to the said Thompson, Crocket, and Nicholas, for the uses
and purposes therein specified, 2,000 acres of land, described as
situate on White Oak Creek, on the northwest side of the Ohio
River, being the land mentioned in the first entry made for said
Robert on the surveyor's books, which said 2,000 acres of land is
averred to be the land embraced not in a single entry, but in
entries Nos. 1,707 and 1,714, made January 12 and February 11,
1788."
"That the said Robert Lawson, by the same deed, conveyed to the
said trustees five other tracts of land of 1,000 acres each,
described as being the last entries made on said warrant in the
name of said Robert Lawson, which, it is averred, embrace the land
contained in entries Nos. 1,718 and 1,719, made 11 February, 1788;
entry No. 1,704, made February 11, 1793; and entries Nos. 1,705 and
1,706, made 21 January, 1793."
"Complainants file a certified copy of said deed, aver that the
same was duly recorded in Fayette County, Kentucky, and on 26
February, 1798, a certified copy, from the records in Fayette
County, Kentucky, was recorded in the Recorder's Office of Hamilton
County, in the Northwestern Territory, in which county the lands in
controversy lay. The original deed of trust is lost; due search has
been made for it, and the complainants
Page 48 U. S. 236
verily believe that the original was consumed by fire in the
recorder's office in Kentucky."
"That on 16 August, 1796, John O'Bannon procured of Lawson an
assignment of 3,333 1/3 acres of said warrant. That Lawson, at the
time he made this assignment, was habitually intemperate and
mentally incapable of transacting business. O'Bannon well knew this
-- knew of the deed of trust -- and procured the assignment by
fraud, and on the false pretenses that he was the locator of the
whole tract of 10,000 acres."
"That afterwards, on 25 August, 1796, O'Bannon, knowing that
entry No. 1,707 had been conveyed to the trustees aforesaid,
fraudulently withdrew so much of said warrant 1,921 as was entered
in said No. 1,707, and caused the same to be entered on the lands
in controversy; and, on 29 August, 1796, surveyed the same, and
returned the plat to the surveyor general's office."
"That prior to 12 February, 1799, O'Bannon applied for a patent
in his own name for said survey, and that on said day the trustees,
in the deed of trust aforesaid, by Joshua Lewis, their agent, filed
a caveat against the issuing of patents to the assignees on said
warrant 1,921, and with it a copy of the deed of trust."
"That O'Bannon continued to urge the department to issue patents
on his claims under said assignment, which was for a long time
postponed, and, on 9 May, 1811, refused or suspended, because said
assignment was in violation of the deed of trust aforesaid. That
said deed of trust, among other things, directed the trustees
aforesaid to convey the 2,000 acres of land first above mentioned
to either of the sons of said Robert and Sarah Lawson that the said
Sarah might direct, unless it should be necessary to dispose of the
same for the use of the family; that the last-named 5,000 acres
should be conveyed, 1,000 to America Lawson, 2,000 to John P.
Lawson, and 2,000 to Columbus Lawson."
"That the said Sarah did not in her lifetime direct the
conveyance of the said 2,000 acres, and the said trustees did not
convey the same, nor any part of the 5,000 acres. That all the
trustees are dead, and that the last survivor of them, George
Thompson, died on 22 March, 1834, leaving the complainant George C.
Thompson his only child and heir at law."
"That America Lawson intermarried with Joshua Lewis December 23,
1797. General Lawson died March 1, 1805, leaving three children,
John Pierce Lawson, America Lewis, and Columbus Lawson, his heirs
at law. That on 10
Page 48 U. S. 237
June, 1809, said Sarah Lawson died. That on 7 January, 1807,
John Pierce Lawson conveyed to Joshua Lewis all his interest in
said lands. That on 1 June, 1809, John P. Lawson died, leaving Mary
P. Lawson, now Mary P. Bowman, his only child and heir at law, who
intermarried with complainant John Bowman. That on 8 January, 1815,
Columbus Lawson died unmarried and intestate, leaving said America
Lewis and Mary P. Bowman his heirs at law."
"That about 1 January, 1813, John O'Bannon died, leaving Robert
Alexander and George T. Cotton executors of his last will and
testament. That Cotton, who qualified, applied to the General Land
Office for a patent on survey No. 1,707, of 965 acres, as executor
of said O'Bannon, but the patent was withheld, and the record
thereof cancelled."
"That, about 21 December, 1816, the said Cotton deposited in the
General Land Office a paper purporting to be a certificate of and
signed by, Robert Lawson, dated 27 November, 1802, and purporting
to be witnessed by J. Bootwright and C. McCallister. Said
certificate was false and forged, but by means thereof the patent
was procured to be issued."
"That Cotton died testate; complainants exhibit a copy of the
will of O'Bannon, and of Cotton. The devisees of said John O'Bannon
and George T. Cotton are not residents of the District of Ohio;
prays process of subpoena against them or such of them as may be
found in the said district and that they and such others as will
voluntarily appear be made defendants."
"That on 1 October, 1830, America Lewis died; on 20 June, 1833,
Joshua Lewis died and left complainants their only surviving
children and heirs at law. Aver that the remaining 3,000 acres of
land of warrant 1,921 not included in the deed of trust, vested in
them as heirs of Robert Lawson through America Lewis."
"That America Lawson, afterwards Lewis, was under the disability
of infancy or coverture during her whole natural life, and that at
the time of issuing the patent to George T. Cotton, and from that
time till her death, she was under the disability of coverture.
That Columbus Lawson was an infant at the time of the death of his
brother, John P. Lawson, and that he was killed at the battle of
New Orleans on 8 January, 1815, and that neither of the trustees in
the deed of trust nor either of the persons under whom complainants
claim title was ever resident in the State of Ohio."
"That John Baird, James W. Campbell Thomas Jennings, Isaac E.
Day Duncan Evans, William King, Victor King, Absalom King, William
More, and Christian Snedecher, who are
Page 48 U. S. 238
made defendants, are in possession of, and claim to have derived
title to, portions of said tract No. 1,707, of 965 acres, mediately
or immediately from George T. Cotton, executor of John O'Bannon,
deceased. C all upon defendants to exhibit their title. Aver that
they had full notice of the title of complainants and the fraud of
O'Bannon; pray subpoena &c."
"An affidavit of search for the deed of trust, and belief that
it is lost or consumed, is attached to the amended bill."
"The defendants, terre-tenants, severally plead that they are
bona fide purchasers, without notice of complainants'
title. They answer jointly, putting in issue the material
allegations of the bill; set forth specifically their own
derivation of title; aver that the claim of complainants is stale,
and that a part of the persons named as trustees have been in the
State of Ohio since the execution of the deed of trust, and before
the issuing of the patent. That the caveat was filed by Joshua
Lewis without authority from the trustees, and that the patent was
wrongfully suspended at the General Land Office. They refer to the
certificate of Lawson, November 27, 1802; the affidavit of James
Speed, November 20, 1803; and the certificate of James Morrisson,
December 9, 1816."
"To these answers there is a replication."
The above statement of the case is taken, as was before
remarked, from the brief of Mr. Ewing, and presents it in as strong
a point of view, for the complainants and appellants, as can be
given to it.
In the progress of the cause in the court below, a great mass of
evidence was taken and many exhibits were filed which it is
unnecessary to set forth.
In December, 1842, the circuit court dismissed the bill, with
costs, an appeal from which decree brought it up to this Court.
Page 48 U. S. 255
MR. JUSTICE GRIER delivered the opinion of the Court.
The appellants in this case filed their bill in the Circuit
Court of the United States for the District of Ohio, claiming a
certain tract of land in possession of the defendants, and praying
a decree for the title and possession of the same.
The bill sets forth that Robert Lawson, under whom
complainants
Page 48 U. S. 256
claim, had received for his services as an officer in the
Revolutionary War a military warrant (No. 1,921) for ten thousand
acres of land, which, before 4 June, 1794, was located in the
Virginia Military District in tracts of one thousand acres each,
under the following numbers of entries: 1,704, 1,705, 1,706, 1,707,
1,714, 1,715, 1,716, 1,717, 1,718, 1,719.
On 4 June, 1794, an indenture tripartite was executed between
Robert Lawson, of the first part, Sarah, his wife, of the second
part, and James Speed, George Thompson, Joseph Crocket, and George
Nicholas, of the third part, by which, for the consideration
therein expressed, Robert Lawson conveyed to the parties of the
third part, among other things,
"two thousand acres of military land, situated on White Oak
Creek on the north side of the Ohio, being the land mentioned in
the first entry made for the said Lawson on the surveyor's
books,"
in special trust that they will
"permit said Lawson and his wife, and the survivor, and the said
Sarah, if she should again separate from her husband, to use,
occupy, possess, and enjoy, during their natural lives and the life
of the survivor, the lands on Fayette County, Kentucky,"
&c. And also that they will convey the two thousand acres of
land on White Oak Creek to either of the sons of the marriage to
whom the said Sarah shall direct &c. And the said Lawson
covenanted with the trustees that he would at no future time
"offer any personal violence or injury to his wife, and that he
would abstain from the intemperate use of every kind of spirituous
liquors and that, if he should at any time thereafter again offer
any personal violence or injury to his wife,"
the trustees were authorized to dispossess him of the hundred
and fifty acres of land &c.
The complainants aver also that the two entries numbered 1,707
and 1,714 covered the two thousand acres conveyed by this deed.
The bill further states that on 16 August, 1796, Lawson made an
assignment to one John O'Bannon of three thousand three hundred and
thirty-three acres of his warrant which had not been surveyed, and
charges that, at the time of making said assignment, Robert Lawson
was, as O'Bannon well knew, habitually intemperate and had been so
for a long time previous; that the faculties of his mind were much
impaired, and that he was wholly incapable of making any valid
contract; that the said assignment was without consideration, and
procured by O'Bannon under false and fraudulent pretenses.
That O'Bannon, well knowing that the aforesaid entry of 1,707
had been conveyed by the trust deed on 25 August,
Page 48 U. S. 257
1796, fraudulently withdrew it, and reentered in his own name
nine hundred and sixty-five acres under the same number on the
waters of Straight Creek -- the tract in controversy in the present
suit. That O'Bannon, having obtained the plat and certificate,
deposited them, before 12 February, 1799, in the Department of
State, and applied for a patent, and Joshua Lewis, the son-in-law
of Lawson, as agent for the trustees, entered on that day a caveat
against the issuing of a patent to O'Bannon.
Lawson and his wife lived together but a short time after the
execution of the trust deed. Mrs. Lawson went to Virginia, where
she died in 1809, never having appointed, as provided by the trust
deed, to whom conveyance should be made. Lawson died in Virginia,
in 1805, the victim of intemperance. They left three children --
America, intermarried with Joshua Lewis in 1797, and two sons,
under whom complainants claim. In 1800, George Nicholas, one of the
trustees, died, and sometime afterwards James Speed and Joseph
Crocket, and the trust thus became vested in George Thompson, the
survivor. In 1834, George Thompson died, leaving George C.
Thompson, one of the complainants, his son and heir at law, in whom
the trust vested.
John O'Bannon died in January, 1812, having made a will and
appointed Robert Alexander and George T. Cotton, his son-in-law,
his executors. Alexander never qualified as executor. Cotton, as
acting executor, on 16 July, 1813, executed a deed of the nine
hundred and sixty-five acres to William Lytle, under whom the
defendants claim. The deed of Cotton recites a patent to John
O'Bannon in his lifetime, and warrants the title. Afterwards, on 21
December, 1816, a patent issued from the United States to Cotton,
"as executor of the last will and testament of John O'Bannon, in
trust for the uses and purposes mentioned in his will."
The defendants plead in bar that they are purchasers from Lytle
and those claiming under him, without notice, and exhibit their
deeds. They also file an answer in support of their plea, in which
the fraud alleged in the bill, and all facts going to show equity
in the claim of complainants, are denied. And in an amended answer
they set up the plea of the statute of limitations, and insist
"that the deed of trust under which complainants claim is a
stale claim, not attended with any circumstances to relieve it from
such staleness, and that the bill should be dismissed on that
account."
Various questions have been made before us as to the nature and
character of this deed of trust: whether its loss is sufficiently
accounted for; whether, as a settlement of family difficulties,
Page 48 U. S. 258
it was not abandoned by all the parties concerned in it; whether
it described the land in controversy; whether O'Bannon purchased
with notice of it; whether he paid any consideration; whether the
assignment to him by Lawson was fraudulently obtained; whether the
legal title was vested in defendants by virtue of the patent to
Cotton and his warranty; and whether the statute of limitations
operated as a bar to complainants' claim.
On these and other questions which were argued with so much
ability by the learned counsel it is not the intention of the Court
to express an opinion, because in our view of the case they are not
necessary to a correct decision of it.
The important question is whether the complainants are barred by
the length of time.
In cases of concurrent jurisdiction, courts of equity consider
themselves bound by the statutes of limitation which govern courts
of law in like cases, and this rather in obedience to the statutes
than by analogy. In many other cases they act upon the analogy of
the limitations at law, as where a legal title would in ejectment
be barred by twenty years' adverse possession, courts of equity
will act upon the like limitation, and apply it to all cases of
relief sought upon equitable titles or claims touching real
estate.
But there is a defense peculiar to courts of equity, founded on
lapse of time and the staleness of the claim where no statute of
limitations directly governs the case. In such cases, courts of
equity often act upon their own inherent doctrine of discouraging,
for the peace of society, antiquated demands by refusing to
interfere where there has been gross laches in prosecuting rights
or long acquiescence in the assertion of adverse rights. 2 Story
Eq. ยง 1520.
A court of equity will not give relief against conscience or
public convenience where a party has slept upon his rights.
"Nothing," says Lord Camden, 4 Bro.Ch. 640,
"can call forth this Court into activity but conscience, good
faith, and reasonable diligence; when these are wanting, the court
is passive, and does nothing."
Length of time necessarily obscures all human evidence and
deprives parties of the means of ascertaining the nature of
original transactions; it operates by way of presumption in favor
of the party in possession. Long acquiescence and laches by parties
out of possession are productive of much hardship and injustice to
others, and cannot be excused but by showing some actual hindrance
or impediment caused by the fraud or concealment of the party in
possession, which will appeal to the conscience of the chancellor.
The party guilty of such laches cannot screen his title
Page 48 U. S. 259
from the just imputation of staleness merely by the allegation
of an imaginary impediment or technical disability.
This doctrine has been so often asserted by this Court, that it
is unnecessary to vindicate it by argument. It will be sufficient
to refer to
Piatt v.
Vattier, 9 Pet. 405, a case much resembling the
present, and
Bowman v.
Wathen, 1 How. 189.
Can the complainants' case stand the test of this reasonable and
well established rule of equity?
The bill does not assert that either the trustees or the
cestuis que trust were ignorant of the transaction between
Lawson and O'Bannon, or of the fraud practiced on Lawson, if any
there was. Yet with the exception of the caveat filed in Washington
in 1799, they show no assertion of claim under this voluntary
postnuptial settlement, from its date (June, 1794) till the filing
of this bill in 1840. John O'Bannon lived till 1812, yet in all
this time (sixteen years) no bill is filed to set aside his
assignment from Lawson for the fraud now alleged while the
circumstances were fresh and capable of proof or explanation.
In 1813 (perhaps in 1811), the defendants, or those under whom
they claim, entered upon these lands; they paid large and valuable
considerations for their respective portions without any knowledge
of this lost deed of family settlement or reason to suspect fraud
in the transfer to O'Bannon. And whether the patent obtained by
Cotton and his warranty had the effect of conferring on them the
legal title or not, they reposed in confidence on it. By their
industry and expenditure of their capital upon the land for a space
of twenty-seven years, they have made it valuable, and what was a
wilderness, scarce worth fifty cents an acre, is now enhanced by
their labor a hundred fold.
No bad faith, concealment, or fraud can be imputed to them. If
the trustees or
cestuis que trust chose to reside in
Kentucky and not look after these lands for near half a century,
they can have no equity from a disability that was voluntary and
self-imposed. The residence of the trustees in Kentucky was not
considered as an obstacle or objection in the minds of those who
executed the deed to their assuming the trust and care of lands in
Ohio. There was no greater impediment to the prosecution of their
claim in a court of equity at any time within forty years than
there is now. They have shown nothing to mitigate the effect of
their laches and long acquiescence or which can entitle them to
call upon a court of equity to investigate the fairness of
transactions after all the parties to them have been so long in
their graves, or grope after the truth of facts involved in the
mist and obscurity consequent on the lapse of nearly half a
century.
Page 48 U. S. 260
We are all of opinion, therefore, that the lapse of time in the
present case is a complete bar to the relief sought, and that the
decree of the circuit court dismissing the bill should be
Affirmed with costs.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Ohio and was argued by counsel. On consideration whereof it is now
here ordered and decreed by this Court that the decree of the said
circuit court in this cause be and the same is hereby affirmed with
costs.
MR. JUSTICE McKINLEY did not sit in this cause.
