respectfully submit, when rightly understood, conflict with the principles of the preceding cases. The words of Lord Camden are: "A court of equity, which is never active in a relief against conscience, has always refused its aid to stale demands where the party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence." sumption will hold unless it can be repelled; | seemed to place so much reliance, do not, we unless insolvency, or a state approaching it, can be shown; or that the party was a near relative; or the absence of the party having the right to the money; or something that repels the presumption that a man is always ready to enjoy what is his own." In that case, a definite period was fixed, in analogy to the time at which courts of law raised similar presumptions, namely, "not less than twenty years;" implying that, prima facie, after twenty years, a court of equity will raise the presumption of a reconveyance from the mortgagee or his heirs; the period wherein the presumption of payment of the mortgage money will arise. But all these presumptions may be repelled by evidence. The lapse of twenty years is only a circumstance on which to found a presumption of payment, and is not, of itself, a legal bar. Jackson v. Pierce, 10 Johns. 414; Ross v. Norvell, 1 Wash. 14. In the case of Chalmer v. Bradley (1 Jac. & Walk. 63), the plaintiffs stated that they were ignorant of the facts. It was possible, said Sir 247*] *Thomas Plumer, they might be so. But was there not anything that might lead them to that knowledge? Nothing appearing in the case, his honor directed an inquiry whether the plaintiffs had any notice of these circumstances, implied or otherwise; observing, that the reason why he directed this inquiry was, that, though he was impressed with the impolicy of permitting stale demands to be brought forward, though he knew that, on the principle stated in Smith v. Clay, Amb. 645, and 3 Bro. C. C. 639, note, a court of equity was not to be called into action by those who were not vigilant in support of their rights, and was aware of the monstrous inconvenience that would result at some period if the door was not shut to litigation, yet he fell in entirely with the opinion expressed by Lord Alvanley in Pickering v. Stamford, 2 Ves. Jun. 272. There the suit was commenced, after a lapse of thirty-five years, by persons who declared themselves ignorant of their rights. Lord Alvanley, under the circumstances of that case, could not be sure they were not ignorant, and therefore, stating strongly his opinion in favor of the general principle, that a party ought to be barred by length of time, and lamenting that he could not, in that instance, follow it, he directed similar inquiries; stating, at the same time, that if he (Lord Alvanley) were then to decide the case before him, he would decide it against the plaintiffs; and that, by the inquiries, he did not decide one way or the other; and would afterwards consider whether there was sufficient equity in the bill or not. It was, therefore, because there was not before him any direct and positive evidence to totally exclude all doubt upon it, that Sir Thomas Plumer directed the inquiries in Chalmer v. Bradley, to obtain some light on the circumstances under which the disputed enjoyment of the property had gone, reserving to himself to judge what should be the effect of the facts which might be found by the master, or what, even without that result, he might think right to be done. A demand in equity is never stale during that period in which, were it a legal demand, it would not be barred by the *statute of [*248 limitations. The complainants have been basely defrauded of their rights, and do not, therefore, defile their consciences by the prosecution of this suit. The complainants never acted in bad faith towards the defendants. They have never slept upon their rights. They were constantly active in asserting their claims, by caveat, until Cotton obtained his patent, which gave him a right of entry. At that time, those under whom the complainants claim were laboring under disabilities, and this suit was commenced in less than twenty-one years after those disabilities were removed. The law has defined what reasonable diligence is, namely, the institution of a suit within the period limited in the law. We are unable to perceive the bearing which the case of Piatt v. Vattier, 9 Peters, 413, can have on the present case. In that case, Piatt merely set out the claim which he had procured by assignment, and asked the court to decree a conveyance of a doubtful equity where there had been an adverse possession of more than thirty years; yet he did not, in his bill, charge that he, or those under whom he claimed, had been during the whole period in which such adverse possession had been held, laboring under any of the disabilities enumerated in the statute of limitations; nor did he charge a single fact or circumstance to excuse the delay in bringing his suit, so as to shield his claim against the operation of the bar in analogy to the statute of limitations. Of what avail, then. was his proof as neither proof without allegation, nor allegation without proof, will warrant a decree? The complainants in this suit have averred and proved, not only that their claim, if a legal one, would not be barred by the statute of limitations, but they have also charged and proved such facts and circumstances as, independent of the statute, relieve their claim from the operations of the bar adopted in equity in that class of cases in which a bar in analogy to the statute would be applied. A legacy given out of real property is only recoverable in a court of equity, and therefore is not within the express words of the statute of limitations. And it follows, that length of time alone will not bar it, but it will raise a presumption of payment, which, unless repelled by evidence of particular circumstances, will be conclusive. See 1 Vern. 256; 2 Ib. 21; and 2 Ves. Jun. 11. Time will not run against pure technical trusts, nor will it commence running in cases of fraud until the fraud has been discovThe observations of Lord Camden, in Smith ered. See Bicknell v. Gough, 3 Atk. 558; v. Clay, 3 Bro. C. C. 640, on which his honor, Alden v. Gregory, 2 Eden, 280; 2 Vern. 503; Mr. Justice McLean, in deciding this case,1 Ridg. Rep. 337; 2 Ves. Jun. 280; Cas. Temp. Talb. 63; 2 Sch. & Lefr. 101; and Ib. 474. 249*] *The presumptions drawn by courts, against stale demands, are founded in justice and policy. Those presumptions are matters of evidence, and not, in most cases, proprio jure, matters of plea in bar; and a court of equity, equally with a court of law or jury, may draw the conclusion, if the lapse of time be put in issue by the pleadings, and the lapse of time be not satisfactorily accounted for. Lapse of time imputed as laches may be excused by the obscurity of the transaction, whereby the plaintiff was disabled from obtaining full information of his rights (Muncy v. Palmer, 2 Sch. & Lefr. 487), and equity will relieve against the mere lapse of time unaccounted for without misconduct in the lessee, or where the lessee has lost his right by the fraud of the lessor (Lamar v. Napper, 2 Sch. & Lefr. 682 689.) These authorities need no comment, as they clearly demonstrate, when applied to the facts of this case, that the complainants' claim is not barred by lapse of time in analogy to the statute of limitations, nor by lapse of time independent of that statute, or by any other cause. There is, however, one class of cases, in which a court of law will, in furtherance of justice, presume a conveyance in less than twenty years. This rule, however, only applies to cases of pure technical trusts, where the trustee is bound to convey to his cestui que trust at a particular period, or on the happening of a particular event, after the period has arrived, or the event has happened, on which the estate was to be conveyed, if the cestui que trust convey the estate to another, and an action or suit be brought by the bargainee against a person in possession. The court will not permit the plaintiff to be prevented from recovering, on the ground that the legal title is outstanding in the trustee but will leave it to the jury to presume a conveyance from the trustee; upon these grounds namely that the court will presume that the trustee has done his duty and that what had been done by the cestui que trust was rightfully done. See England v. Slade, 4 T. R. 682, and Doe v. Lyburn, 7 T. R. 2. It will at once be perceived that this class of cases has no application to the case at bar. veyed by O'Bannon; because, first, said location and survey were not made in pursuance of any contract; and if they were, the defendants do not show such a connection with O'Bannon as would justify this court in substituting them in his place. This court cannot make a contract for the parties, and then decree its specific execution. Mr. Stanberry, for the appellees, in reply to Mr. Scott: Lastly, if all other defense fails us, we rely upon the lapse of time and the staleness of the claim; and this is, under all the circumstances, a sure reliance. It is difficult to imagine a case to which this wholesome doctrine would better apply. Whether the complainants trace their claim to the deed of trust; or by descent from Lawson, they come at too late a day into a court of equity to assert it From the 16th of August, 1796, a claim adverse to theirs has been set up, and for twenty-seven years prior to the filing of the bill undisturbed possession of the land accompanied that adverse claim. However it may have been in the beginning, no single circumstance of fraud or notice attaches to this adverse title during this long possession. Look now to the change of circumstances in this great lapse of time. All the parties to the transactions dead, and the subject matter of the claim, worth only a few cents per acre in the beginning-worth only $2.50 per acre when the possession commenced, and then a wilderness now turned into highly cultivated farms, and worth $30 per acre. Now, what sort of a case do these complainants make to overcome such a defense? Let us take the title as claimed under the deed of trust in the first place. I have shown already that this land was not covered by that deed; but, if it be held to pass, though obscurely, by that deed, then what sort of a deed was that? A voluntary post-nuptial settlement, a sort of conveyance barely tolerated, requiring the most favorable circumstances for its support, and of little avail against present creditors and subsequent purchasers. The counsel for complainants, in his printed brief, takes quite a new view of this kind of conveyance. He says, that "each of [*251 the three considerations named in the deed is valuable, and sufficient to sustain it against creditors and subsequent purchasers." There is no particular hardship in this case which ought to weigh with the court, and incline the scale in favor of the defendants. In answer to this, it is only necessary to reShould a decree be pronounced eventually in fer to Cathcart v. Robinson, 5 Peters, 264, favor of the complainants, the defendants will, which establishes, or more properly recognizes, in reality, sustain no loss. The complainants the doctrine, that a subsequent sale by the husmust pay them for all their lasting and valu-band to an innocent purchaser is presumptive able improvements, and moneys expended in evidence of fraud in the settlement. payment of taxes, less the rents and profits; and their warrantors must refund to them the expenses of this suit, ordinary and extraordinary, and the consideration paid, if any were 250*] *paid, and interest. This will throw the loss back upon those who originally perpetrated the fraud, to be relieved from which the complainants have been compelled to resort to this court. And we respectfully submit, that they are entitled to the relief which they ask. In extending relief to the complainants, we also submit, that no portion of the land ought to be decreed to the defendants, on the ground that the lands in question had been located and sur reconciliation between Lawson and his wife, The great object of this conveyance was a which soon fell through. Very shortly after the making of the settlement, we find Mr. and Mrs. Lawson making a joint application to one of the trustees for the sale of a part of the lands to meet their current expenses, but nothing is ever done by the trustees in the administration of the trust. Between the date of the deed of trust and the year 1800, Lawson disposed of the entire 10,000 acres to various persons. The fact was known to the trustees and the cestuis que trust. All parties seem to have abandoned it, for not a single item of the property, real or personal, mentioned in it was ever administered, under its provisions. Lawson and his family separated forever. The complainants allege, that, for years before his death, he was reduced to a miserable wreck, both in body and mind, wholly unable to take care of himself. Strange that, under such circumstances, he should have been left altogether to the care of strangers. He died between 1802 and 1805, and his wife and three surviving children, the youngest of whom (Columbus) was then sixteen, the other two considerably past their majority, were left to look after their property. Mrs. Lawson died in 1809, her three children, then all of full age, surviving her. Long before this date, all these parties were advised that this land was claimed by assignments from General Lawson, and as early as February 12th, 1799, a caveat against patents to the assignees was filed in the general land office by Joshua Lewis, who had married the daughter of General Lawson. Although under that caveat the patent for this 965 acres was suspended for sixteen years, not a step farther seems to have been taken to sustain it or make any proof. Mrs. Lawson and her children continued to reside in Kentucky, just where, if there were any proof to invalidate the claims set up under Lawson, it could be had. and a court of equity is asked to dispossess these defendants. If we look at the claim by descent, and not through the deed of trust, it is, if possible, still worse. Then it assumes the aspect of a bill brought to impeach an equitable title older than the one set up by the complainants-a bill to set aside an assignment apparently good by matter in pais, exhibited just forty-four years after the voidable assignment was made. But it is said, in answer to this great lapse of time, that it goes for nothing, for the reason that the statute of limitations, in consequence of non-residence, etc., would not bar the complainants if they had a legal title. Very clearly it would bar them, if a legal title had descended to the children of Lawson instead of an equity, unless we pile one disability upon another. But there is no question of any statute of limitations as to the complainants. They never had the right to bring an action at law, for they have never had a legal title. No such cause of action has ever accrued to them. The legal title, as has been shown, was first vested in Cotton, and nothing appears in the case to prevent the operation of the statute upon that title, the only [*253 one upon which it could operate. But if the case were otherwise, it is quite too late to contend that a court of equity will never refuse relief if the statute does not cover the case. Piatt v. Vattier, 9 Peters, 405, is a leading case to the contrary. The court in that case On the 9th of January, 1807, one of the three act independently of the statute, and adopt the children, John P. Lawson, conveys all his in-language of Lord Camden, as as follows: "A terest in the 7,000 acres embraced in the deed court of equity, which is never active in relief of trust to his brother-in-law, Lewis. This against conscience or public convenience, has 252*] deed *contains the recital that the always refused its aid to stale demands, where 7,000 acres, since the date of the deed of trust, the party has slept upon his rights, or acquihad been conveyed by Robert Lawson to divers esced for a great length of time. Nothing can persons, and carefully provides that John P. call forth this court into activity but conLawson should not be held to warrant against science, good faith, and reasonable diligence. the claims of such purchasers. Where these are wanting, the court is passive, and does nothing: laches and neglect are always discountenanced; and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court." John P. Lawson died about the 1st of June, 1809, leaving the complainant, Mary Pierce Bowman, his only child and heir at law. Columbus Lawson died unmarried, about the 8th of January, 1815, leaving his sister, Mrs. Lewis, and his niece, Mrs. Bowman, his heirs at law. Mrs. Lewis died about the 1st of October, 1830, and her husband about the 20th of June, 1833. Ten years after the death of the last of Lawson's children, she having lived to the age of fifty-two, the grandchildren of Lawson, eleven in number, and all of full age, bring this suit. Here, then, is a case of full notice of the adverse claim, brought home to the ancestors of these complainants more than half a century ago. They take but one step in all that time towards the assertion of their claim, and that step was taken before the present century commenced, and was never afterwards followed up. Perhaps they did not consider the property worth the cost and trouble of its pursuit. Now, after they are all gone, and all the parties to the fraud, if there was any, have also disappeared—now, when the land is in hands very remote from the original owners, improved and subdivided into a cluster of farms, and made valuable by the labor of the occupants, at this late day, this long abandoned claim is set up, In Bowman v. Wathen, 1 How. 189, the same doctrine is fully recognized, and the principle upon which a court of equity denies relief to stale claims is strongly enforced and illustrated. The language of Sir William Grant is adopted, and quoted with approbation: "Courts of equity, by their own rules, independently of any statutes of limitation, give great effect to length of time, and they refer frequently to the statutes of limitation, for no other purpose than as furnishing a convenient measure for the length of time that ought to operate as a bar in equity to any particular demand.” So, also, the language of Lord Redesdale, that "it never can be a sound discretion in the court to give relief to a person who has slept upon his rights for such a lapse of time; for though it is said, and truly, that the plaintiffs in this suit, and those under whom they claim, were persons embarrassed by the fraud of others, yet the court cannot act upon such circumstances." And, again, what is said by the same Chancellor, that "every new right of action in equity that accrues to a party, whatever it may be, must be acted upon, at the utmost, within twenty years." If such is the doctrine in England, and has been found necessary there, it should find peculiar favor in this country; especially in refer- | ence to stale claims against real estate-a species of property so much the subject of traffic among our people, and constantly undergoing such changes in value. Mr. Stanberry, in reply to Mr. Ewing: Mr. Ewing, in answer to lapse of time, relies upon the act for limitation of actions (which he 254*] says must govern this case), *passed January 25th, 1810, 1 Chase, 656. He claims that the second section provides the rule of limitation for all suits in equity, and that the proviso saves this case. This is a novel construction of this act. It is entitled "An Act for the limitation of actions,” which carries the idea of common law proceedings. The first section specially names all the personal actions, and affixes their respective bars. The second section provides for the other description of actions, mixed and real, by enumerating the writ of ejectment or other action for the recovery of the possession, title, or claim of, to, or for any land, tenements, or hereditaments, and limits the time of bringing them within twenty-one years next after the right to such action or suit shall have accrued. The proviso then saves the rights of persons entitled to any such actions, if under the disability of nonage, coverture, insanity, or absence from the State, until the full time of limitation has passed after the removal of the disability. We say the language, "or other action for the recovery of the possession, title, or claim of, to, or for any land, tenements, or hereditaments," is intended to bar all forms of real actions. Such has been its uniform construction in Ohio. Holt v. Hemphill, 3 Ohio, 239. Similar language has been used in all the Ohio acts of limitations. The act now in force, of June 1st, 1831, Swan, 553, uses this language: "Actions of ejectment, or other action for the recovery of the title or possession of lands," etc. Larrowe v. Beam, 10 Ohio, 498, applies the statute of 1810 to a petition for dower. Grimke, J., says (p. 503), "that, at the time the right of the petitioner accrued, the mode of proceeding was by writ of dower, and so continued until 1824, when the petition in chancery was substituted.” | The complainants are not, therefore, within the bar of the *savings of the statute. [*255 It neither binds them nor precludes them. No cause of action, such as the statute contemplates, ever vested in them, for they never had a legal title or any right to sue in a court of law. For nearly half a century their claim has stood upon a voluntary settlement conveying only an equity. The case shows it was in effect abandoned, before the present century began, by all parties interested in it. But one step was ever taken to assert it, and that was as long ago as February, 1799, at the instance of Joshua Lewis. The caveat then filed did not so much as name O'Bannon, or caution anyone against his assignment. Besides this presumptive abandonment, the other facts shown by the complainants themselves would be sufficient, without this lapse of time, to protect the subsequent purchasers. In Cathcart v. Robinson, 5 Peters, 264, this court, in reference to a post-nuptial settlement, refer to the subsequent control over the property by the husband; his notoriously offering it for sale, the trustee not intervening to prevent. it; the letter of the wife to the trustee requesting him to assign part of the property to pay the husband's debts-as evidence of fraud upon subsequent purchasers. This case presents a similar state of facts, even to the interference of the wife. Now, after the death of all the parties to this family arrangement, made chiefly for their own accommodation, and soon abandoned by them-after the death of all their children, this long forgotten claim is set up by the grandchildren of the original parties, eleven in number, not one of whom was in being at the time of the settlement-the youngest now thirty, and the oldest fifty, years of age! We see who make this claim, and now what do they ask? In this case, property worth. $30,000. But if they are entitled to this, there is nothing to save from their claim the other 6,000 acres, of equal value; altogether, a property worth more than $200,000, which, at the date of the deed, was not worth $1,000. And then from whom is this property to be taken? Honest purchasers, who paid a full value, and who have been in the undisturbed. possession for thirty-five years. Mr. Justice Grier delivered the opinion of the court: The appellants in this case filed their bill in Tuttle v. Wilson, 10 Ohio, 502, also a peti- | the Circuit Court of the United States for the tion for dower, and held to be barred by the District of Ohio, claiming a certain tract or statute. Wood, J., says (p. 26): "The peti- land in possession of the defendants, and praytion for dower is substantially, when prose-ing a decree for the title and possession of the cuted, a possessory action." The actions at common law for the recovery of dower were classed under the form of real actions. They were either the writ of right of dower, or more commonly the writ of dower unde nihil habet. Booth on Real Actions, 118, 166. The right to dower is strictly a legal right for the recovery of a legal estate. It is only for convenience that a remedy by petition in equity is given in Ohio. The courts of Ohio have not said that the statute of limitations applies directly to any other proceeding in equity. same. The bill sets forth that Robert Lawson, under whom complainants *claim, had re- [*256 ceived for his services as an officer in the Revolutionary War a military warrant (No. 192 ) for ten thousand acres of land, which before the 4th of June, 1794, was located in the Virginia military district, in tracts of one thousand acres, each, under the following numbers of entries: 1704, 1705, 1706, 1707, 1714, 1715, 1716, 1717, 1718, 1719. On the 4th of 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," etc. 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, etc. 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, etc. The complainants aver, also, that the two entries numbered 1707 and 1714 covered the two thousand acres conveyed by this deed. The bill further states, that on the 16th of 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 1707 had been conveyed by the 257*] trust deed, on the 25th of August, *1796, fraudulently withdrew it, and re-entered 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 the 12th of 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 some time 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 the 16th of 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 the 21st of 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, it was not abandoned by all the [*258 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 ic 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 i |