1 Jac. & Wal. 159. See also 2 & 3 estate, under pretence of any flaw in the grant, or other defect of title. This act, at the time it was made, secured the rights of such as could then prove a possession of sixty years: but, from its nature, was continually diminishing in its effect, and departing from its principle; so that some new law became every day more necessary, to secure the possessions of the subject from the claims of the Crown. 60. It was therefore enacted by the statute 9 Geo. 3. c. 16.— "That the King's Majesty, his heirs or successors, shall not at any time hereafter sue, impeach, question, or implead any person or persons, bodies politic or corporate, for or in anywise conGibson v. Clark, cerning any manors, lands, tenements, rents, tithes, or hereditaments whatsoever, (other than liberties or franchises) or for or in anywise concerning the revenues, issues, or profits thereof, or make any title, claim, challenge, or demand, for or into the same, by reason of any right or title which hath not first accrued or grown, or which shall not hereafter first accrue and grow within the space of sixty years next before the filing, issuing, or commencing of every such action, bill, plaint, information, commission, or other suit or proceeding, as shall at any time or times hereafter be filed, issued, or commenced for recovering the same, or in respect thereof; unless his Majesty or some of his progenitors, predecessors or ancestors, heirs or successors, or some other person or persons, bodies politic or corporate, under whom his Majesty, his heirs or successors, any thing hath or lawfully claimeth, or shall have or lawfully claim, have or shall have been answered by force and virtue of any such right or title to the same rents, issues, and profits of any honour, manor, or other hereditaments whereof the premises in question shall be part or parcel, within the space of sixty years; or that the same have or shall have been duly in charge to his Majesty, or some of his progenitors, predecessors, or ancestors, heirs or successors, or shall have stood insuper, of record, within the said space of sixty years." Attorney-Ge- Equity adopts the doctrine of limitations. 61. The former statutes of Limitation only fixed certain periods within which different real and personal actions might be brought in the courts of common law; and therefore did not extend to suits in equity but 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 these statutes, as positive rules for their conduct. (a) Smith v. Clay, 3 Bro. C. C. 639 n. Hovenden v. Annesley 2 Schoales & Lefroy, 607. 62. Thus Lord Camden has 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 properly define the time of 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 where the Legislature had 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 to which they had been confined by parliament; therefore, in all cases where the legal right has been barred by parliament, the 10 Ves. 466. equitable right to the same thing has been concluded by the same bar. 15- 496. 63. In consequence of these principles it has been long settled, that where a mortgagee has been in possession for twenty years, without claim, that circumstance may be pleaded to a bill for redemption; unless there be an excuse by reason of imprisonment, infancy, coverture, or absence from the kingdom. Tit. 15. c. 3. For as the statute 21 Ja. 1. had made twenty years' possession a (a) [By sect. 24. stat. 3 & 4 Will. 4. c. 27. it is enacted, that after the said 31st day of Dec. 1833, no person claiming any land or rent in equity, shall bring any suit to recover the same but within the period during which, by virtue of the provisions hereinbefore contained, he might have made an entry or distress, or brought an action to recover the same respectively, if he had been entitled at law to such estate, interest, or right in or to the same, as he shall claim therein in equity. And by sect. 25 it is enacted that when any land or rent shall be vested in a trustee upon any express trust, the right of the cestui que trust, or any person claiming through him, to bring a suit against the trustee, or any person claiming through him, to recover such land or rent, shall be deemed to have first accrued, according to the meaning of this act, at and not before the time at which such land or rent shall have been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through him.] Anstr. R. Vol. Lewellin v. Mackworth, 15. Tit. 12. c. 2. c. 2. s. 1. note. bar to an entry and ejectment, there was the same reason for allowing it to bar a redemption. (a) 64. It has been generally said that trust estates are not within the statutes of Limitation (b): but this proposition only applies to cases arising between a cestui que trust and his trustee, (c) where there is no adverse possession; for Lord Hardwicke has justly observed that this rule holds [only as between cestui que trust and trustee, and not] between the cestui que trust and trustee on the one hand, and strangers on the other, as that would be to make the statute of no force at all; because there was hardly any estate of consequence without such trust, and so the act would never take place; therefore where a cestui que trust and his trustee were both out of possession for the time limited, the party in possession had a good bar against both of them. 65. It has been already stated that trust estates of freehold are considered, in equity, to be as liable to be devested by abatement or intrusion as legal estates are at law; for otherwise it would be extremely difficult to ascertain in what cases, and from what periods, the statutes of Limitation should affect them. 66. With respect to equities of redemption it has been settled in the following case that where a person has made a mortgage in fee, and continues in possession of the estate, paying the interest of the mortgage, he is considered at law as tenant at Vid. sup. Tit. 15. will to the mortgagee of the legal estate: but in equity he is held to be the entire owner thereof, subject only to the payment of the mortgage. That his possession being nearly similar to that of a cestui que trust of a freehold estate, may be abated or devested by the entry of a stranger, on the death of the mortgagor; and that in such case the negligence of the heir of the mortgagor, in not claiming the estate within twenty years after such entry, will bar him from any remedy in equity. (a) [By stat. 3 & 4 Will. 4. c. 27. s. 28. it is enacted, that a mortgagor shall be barred at the end of twenty years, from the time when the mortgagee took possession, or from the last written acknowledgment.] (b) [Vide supra, sect. 61. note.] (c) [This rule only applies to the case of an express trust, and not to that of a constructive trust, 17 Ves. 97. See also Sugd. V. & P. p. 338. Ed. 6.] v. Clinton, 67. George Earl of Orford having made a settlement of the Cholmondeley estate in question in 1781, with a power of revocation, made a 2 Merivale's mortgage of it in fee in 1785, which it was agreed only operated Rep. 171. as a revocation pro tanto, and continued in possession during the remainder of his life, paying the interest of the mortgage. Upon his death Mr. Trefusis, who afterwards became Lord Clinton, entered, conceiving himself entitled to the estate under the settlement of 1781; and paid the interest of the mortgage during his life. Upon his death Lord Clinton, as his eldest son and heir, entered and continued to pay the interest of the mortgage. George Earl of Orford was succeeded by his uncle Horace Earl of Orford, who, by a codicil to his will, devised all his real estates to Mrs. Damer in fee. The Marquis of Cholmondeley, as the heir at law of Horace Earl of Orford, who was the uncle and heir at law of George Earl of Orford, and Mrs. Damer, as the devisee of Horace Earl of Orford, filed their bill in the Court of Chancery against the mortgagee and Lord Clinton for redemption of the mortgage to which Lord Clinton pleaded an uninterrupted possession of upwards of twenty years. The cause was heard before Sir William Grant, M. R. who delivered his opinion in the following words :-"I come now to the third question, upon the effect of the length of time. It seems to me that there is no room in this case for the operation of the statute of Limitations; there is a possession of twenty years, but not in the character of owner of the legal estate, or under any claim of being so entitled. The subsistence of the mortgage has been all along recognized, and nothing but the equity of redemption was ever claimed by Lord Clinton. Even at law it is not mere possession that is sufficient to bar the claim of the owner; there must be something tantamount to a disseisin. Now though there may be what is deemed a seisin of an equitable estate, there can be no disseisin of it. First, because the disseisin must be of the entire estate, and not of a limited and partial interest in it; the equitable ownership, as separated from the legal ownership, cannot possibly be the subject of disseisin. And, secondly, because a tortious act can never be the foundation of an equitable title. In the case of Hopkins v. Hopkins, in 1 Atkyns, Lord Hardwicke, speaking Pa. 591. of the analogy between uses and trusts, says,-'It is very true this would not have been endured if Courts of equity had not in general allowed these trust estates to have the same consideration in point of policy with legal estates and giving the same power to cestui que trusts, with respect to alienations, as if it was an use executed. Therefore a tenant in tail of a trust may bar his issue by a fine; a tenant in tail of a trust, remainder over may dock the remainder by a common recovery; nay, some go so far as to say, he may do it by a feoffment only. But all these are common assurances, and rightful methods of conveying estates; for it was never allowed that in trust estates a like estate may be gained by wrong, as there might be of a legal estate; therefore, on a trust in equity no estate can be gained by disseisin, abatement, or intrusion. It is true, it may happen so upon a trustee, and in consequence the cestui que trust may be affected; but that is on account of binding the legal estate: but on a bare trust no estate can be gained by disseisin, abatement, or intrusion, whilst the trust continues.' If George Earl of Orford had died seised of the legal fee, the late Lord Clinton, who entered on his death, would have gained an estate by abatement which could only be defeated in the first instance by entry; and after a descent cast, by an action; and after twenty years' continuance of the possession no ejectment could have been maintained. But equity does not acknowledge that Lord Clinton, by entering without title, gained any equitable interest in the estate; and a legal interest he does not profess to have acquired. An equitable title may undoubtedly be barred by length of time, but it cannot be shifted or transferred. What was once my equity, by my laches may be wholly extinguished: but it cannot, without my act, become the equity of another person. It does not therefore follow that an equity can be acquired by length of possession, because by length of possession it may be barred. Here it is admitted that the equity of redemption subsists; and so long as it subsists, the question to whom it belongs must remain open. Somebody is entitled to redeem, and to have a conveyance of the legal estate. To whom is the Court to direct the conveyance to be made; to him who shews a title, or to him who has nothing to shew but a possession of twenty years. If to the latter, then a twenty years' possession must constitute |