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plies in cases where the jurisdiction is concurrent, but the legal remedy is imperfect or inadequate. Thus, it has been held that this section of the statute applies to an action to redeem a mortgage by a person having a right to redeem, but who was not made a party to the foreclosure proceeding, to actions for a specific performance of a contract, to reform a contract, to subject land to the payment of the testator's debts, to redeem stock or other personal property pledged as collateral for a debt,* or indeed to any purely equitable action not involving a question of fraud, in which latter case it comes under the six years' clause, and the code has made no essential change in this respect."

But, as we have observed, independent of any express statute to that effect, courts of equity adopt the statutes of limitation and apply them in all proper cases, and will refuse relief upon stale demands and claims, even though the statute has not run upon them, except where a reasonable excuse is presented for delay. But when it perceives that the party has equitable rights, and that a court of law might bave proved insufficient to protect them, it will not in a proper case refuse relief, even though the claim has been long outstanding ; & and espe

sec. 17 of 3 & 4 Wm. IV. c. 27, a period of 6 Roberts v. Sykes, 30 Barb. (N. Y.)
forty years is fixed as the extreme limit 173.
within which any proceedings may be 7 In Montgomery v. Montgomery, 3
taken. Notwithstanding this, a sixty Barb. (N. Y.) Ch. 132, an action to annol
years' title is still necessary, and the rule a marriage on the ground of fraud was held
which requires a vendor to give it, in the to be embraced under the six years' clause ;
absence of conditions to the contrary, re- so in Borst v. Corey, 15 N. Y. 505, an
mains unaltered. “One ground of this action to enforce an equitable lien for the
rule,” remarks LYNDHURST, L. C., “was purchase-money of lands, or indeed to
the duration of human life, and that is not any case where fraud is alleged and relied
affected by the statute.” Cooper v. Em- upon.
ery, 1 Phill. C. C. 388. The seventeenth 8 Chapman v. Butler, 23 Me. 191. In
section, just referred to, was decided to be matters of account, even where they are
retrospective in Corbyn v. Bramston, 3 not barred by statute, courts of equity
Ad. & El. 63. But the question seems not refuse to interfere after a considerable
to be free from doubt, as the words are lapse of time, from considerations of pub-
perhaps in strictness prospective and dif- lic policy and from the difficulty of doing
ferent from those in some other sections, entire justice, when the original transac-
the twenty-sixth, for example ; and in the tions have become obscure by time, and the
learned note to Nepean v. Loe, in 2 Smith's evidence may be lost. McKnight 0. Tay.
L. C. 662, it is suggested that the question lor, 1 How. (U. S.) 161. But mere lapse
may be still open.

of time will not defeat equitable relief i Clarke v. Boorman, 18 Wall. (U. S.) when time is not essential to the substance 493 ; Rundle v. Allison, 34 N. Y. 180; of the contract, and the party seeking reMann v. Fairchild, 14 Barb. (N. Y.) 548. lief has acted fairly, though negligently,

2 Miner v. Beekman, 50 N. Y. 337 ; unless the delay has been so long as to Hubbell v. Sibley, 50 id. 468.

justify a presumption that he had aban. Peters v. Delaplaine, 49 N. Y. 362. doned the contract. Getchel o. Jewett, 4 4 Oakes v. Howell, 27 How. Pr. (N. Y.) Me. 350. But these statutes, being stat. 145.

utes of repose, suspend the remedy, but 5 Wood v. Wood, 26 Barb. (N. Y.) do not cancel the debt ; and although 356.

equally available as a defence at law and

cially do they make an exception in the case of direct technical trusts, and fraudulent concealment of the cause of action. Nor will the statutory bar be applied in equity, so long as an action at law will lie upon the instrument upon which the equitable action is predicated.”

The statute is applied in equity in matters of account, to actions to remove a cloud upon a title,“ to actions to foreclose mortgages, or title bonds, or for the specific performance of contracts ;' and generally courts of equity will adopt the statute in analogy to the nature of the claim sought to be enforced, and, as will be seen in the following section, where there is no analogous statute, as where the matter is purely equitable, the court will refuse relief, if the plaintiff has been guilty of laches in asserting his rights, and a demand will often be regarded as stale, even though the time which has elapsed is less than the statutory period.

in equity, yet where there are two securi- 5 Cleaveland Ins. Co. v. Reed, 1 Biss. ties for the same debt, one of which is (U. S. C. C.) 180 ; Anderson v. Baxter, harred by the statute and the other not, 4 Oregon, 105 ; Hall v. Denckler, 28 Ark. the creditor, notwithstanding he has lost 506. his remedy at law on the former, may pur- 6 Day v. Baldwin, 34 Iowa, 380. The sue it in equity on the latter. Where the statute has been held applicable in equity security for a debt is a lien on property, in the following instances : In proceeding personal or real, that lien is not impaired to set aside a judgment on account of in consequence of the debt's being barred fraud, Moon v. Baum, 58 Ind. 194; an by the statute of limitations. Therefore, action to enforce a mortgage, Eubanks v. where a debt due from A. to B. was se- Leveredge, 4 Sawyer (U. S. C. C.), 274 ; to cured by a promissory note, made by B. in redeem from a mortgagee, Smith v. Foster, April, 1817, payable in five years, and by 44 Iowa, 442; to vacate a judgment on the a mortgage of real estate, executed by B. ground of fraud, School District v. Schreiat the same time, but the note was never ner, 40 id. 172 ; to impeach the validity of in fact paid, and B. bail no property ex- a decree for a divorce a mensa et thoro, eept the estate mortgaged, on a bill of Bourlan v. Waggaman, 28 La. An. 481; to foreclosure brought by A. in January, annul a morty ge on the ground of fraud, 1835, it was held that he was not barred Renshaw v. Herbert, 29 id. 285 ; to annul of his right as mortgagee, and the relief a contract on the ground of lesion, Blake sought was decreed. In such case, the v. Nelson, id. 245 ; to restore a record in a finding of a debt due from B. to A., as the suit to enforce a contract, Wyatt v. Suta basis of a decree of foreclosure, would not ton, 10 Heisk. (Tenn.) 458 ; to reopen an preclude B. from availing bimself of the account, Spruill v. Sanderson, 79 N. C. statute of limitations, in a subsequent ac- 466 ; to enforce the liability of stockholdtion on the note. Belknap v. Gleason, 11 ers for the debts of a corporation, Godfrey Conn. 160.

v. Terry, 97 U. S. 171 ; or for the division · McLain o. Ferrell, 1 Swan (Tenn.), of lands and profits thereof, Harlaw v. 48.

Lake Superior Iron Co., 41 Mich. 583 ; or 2 McNair v. Ragland, 1 Dev. (N. C.) to recover for lands taken uuder legislative 533 ; Bidwell v. Astor Mut. Ins. Co., 16 authority, Sommer v. Pacific R. R. Co., 4 N. Y. 263; Wood v. Ford, 29 Miss. 57. Mo. App. 586; or to recover in any in.

Mann v. Fairchild, 3 Abb. (N. Y.) stance where the complainant has or ever App. Dec. 152 ; Hubbell v. Sibley, 50 had a remedy at law, Cleaveland v. Wil. N. Y. 468 ; Atwater v. Fowler, 1 Edw. liamson, 57 Ala. 402. (N. Y.) Ch. 417.

7 Brennan v. Ford, 46 Cal. 7. * Hodgden v. Gutting, 58 Ill. 431. & Spaulding v. Farwell, 70 Me. 17.

Sec. 59. Rule as to purely Equitable Matters. - As to matters of equitable cognizance merely, the statute does not apply. In other words, the statute is not binding on courts of .chancery in cases of exclusively equitable cognizance. But the court often refuses to interfere where there have been gross laches or a long or unreasonable acquiescence in the assertion of adverse claims, and adopts, in cases to which the statute does not strictly apply, a period within which its aid must be sought, similar to that prescribed in analogous cases at law. But

1 Marsh v. Oliver, 14 N. J. Eq. 259; subsistence of the mortgage in this case Attorney-General v. Purmort, 5 Paige rendered the estate an equitable one, and (N. Y.) Ch. 620 ; Warner v. Daniels, 1 that of an equitable estate there could be W. & M. (U. S. C. C.) 91. The court no disseisin. On this cause, however, will not apply the statute of limitations to coming on for further directions, PLUMER, a demand purely of an equitable nature, M. R., overruled the former decision, and Singleton v. Moore, Rice (S. C.) Ch. 110. after reviewing the cases where length of

2 Askew v. Hooper, 28 Ala. 634. In time has been considered a bar in equity, matters purely equitable, if there is an stated the effect of them to be, first, that analogy between it and a remedy at law, courts of equity have at all times, upon the court will generally apply the same general principles of their own, even where limitation. Thus, a grantor’s bill alleging there was no analogous statutable bar, rethat the conveyance was in fact made as a fused relief to stale demands, where the security for money loaned, and charging party has slept upon his right, and acthat the grantee had sold the land for a quiesced for a great length of time ; and, much greater sum than the indebtedness, secondly, that whenever a bar has been and praying an account for the difference, fixed by statute to the legal remedy in a was held to be barred in the same period court of law, the remedy in a court of that an action for a debt would be at law. equity has, in the analogous cases, been Hancock v. Harper, 86 Ill. 445. The confined to the same period. He then statute cannot be pleaded by trustees, in stated it to be clear, that, had the present defence of a charge of a breuch of trust, been the claim of a legal estate in a court or the consequences of neglecting their of law, the remedy would have been barred duty in having sold an estate incumbered, by the statute of limitations. It was without satisfying that demand. Milnes therefore clear, that being an equitable v. Cowley, 4 Price, 103. In Cholmon- estate, the remedy must, by analogy, be deley v. Clinton, 2 Mer. 173, 357, the de- equally barred in a court of equity. fendant's father, conceiving himself entitled 2 Jac. & Walk. 1, 151. On appeal to the in remainder, under the words of a limita- Lords, the decree of PLUMER, M. R., was tion, upon the death of the particular ten- affirmed, LORD ELDON stating his opinion ant, had entered into the possession of the to be, that adverse possession of an equity equity of redemption of certain estates, of redemption for twenty years was a bar which were then in mortgage. On his death to another person claiming the same equity defendant entered as heir-at-law, and after of redemption, and worked the same effect twenty-one years' uninterrupted possession as disseisin, abatement, or intrusion, with in the two, plaintiff claimed the right of respect to legal estate. 8. c. id. 191. As redemption, alleging a want of title in de to the decisions that a direction by will, to fendant's father ; defendant set up the pay debts, took away the plea of the length of time. But GRANT, M. R., held statute of limitations, there is a distinction that the statute of limitations could not between debts on simple contract and bond; operate ; that though there was a posses- the principle as to the former is, that the sion of twenty years, it was not in the debt may have existence and the remedy character of owner of the legal estate, and be taken away, but the bond debt goes that, without something tantamount to a upon the presumption of payment. Per disseisin, there could be no bar ; that the Eldon, C., in Ex parte Roffey, 19 Ves. 470.

i

8. C.

where the claim is purely equitable, unless expressly so provided, the statute does not apply thereto, and the lapse of time, bowever long, will not deprive a party of his remedy thereon if there is a reasonable escuse for the delay; as the court will not allow a just claim to be defeated simply because of the lapse of time, if the party has not, in view of the circumstances, been guilty of unreasonable delay. Thus, in an Illinois case, it was held that a bill to foreclose a mortgage will not be barred on the ground of staleness even after the lapse of thirty-five years, when it is shown that the mortgagor has been out of the State most of the time, and had apparently abandoned his equity of redemption, and the mortgagee has constantly asserted his claim by the sale of part of the premises, paying the taxes on the remainder, and other acts of ownership, and no adverse claim had been asserted until about a year before the bill was brought."

In cases where the jurisdiction of equity is concurrent with courts of law, that is, when a right is sought to be enforced in equity for which the party has a remedy at law, it would operate as a virtual repeal of the statute, if parties by a change of forum could evade its effect; and for this reason there is much justice in the statement of CATRON, J.,5 courts of equity are no more exempt from these statutes than courts of law. But this cannot be said to be the case where the rights sought to be enforced are merely matters of equitable jurisdiction, because the ill results likely to ensue in the former case cannot ensue in this, and also because this class of claims cannot be said to be within the spirit or intent of these acts, unless expressly embraced therein ; and in such cases the rights of parties are enforced without reference to the statute, unless from lapse of time and neglect in seeking their enforcement they have become stale ;? and the arguments advanced in some of the cases, that as the statute of James was in force when our statutes were enacted, and that the legislatures well understood the manner in which the courts

5 that

1 Pitzer v. Burns, 7 W. Va. 63 ; Askew 3 Locke v. Caldwell, 91 Ill. 417. t. Hooper, 28 Ala. 634 ; Keaton v. Mc- 4 See also Johnson v. Diversey, 82 Ill. Gwier, 24 Ga. 217 ; Burden v. Stein, 27 446 ; Calwell v. Miles, 2 Del. Ch. 110 ; Ala. 104; Union Bank v. Stafford, 12 Preston v. Preston, 95 U. S. 200; Neely's How. (U. S.) 327 ; Wood v. Ford, 29 Appeal, 85 Penn. St. 387. Mise. 57.

5 Bank of United States v. Daniel, 12 2 But in such cases the burden is on Pet. (U. S.) 56. the plaintiff to show a reasonable excuse 6 See to same effect Piatt v. Vattier, 9 for delay. Pierce v. McClellan, 93 Ill. 245. Pet. (U. S.) 416 ; Kane v. Bloodgood, 7 In Cherry v. Lamnor, 58 Ga. 541, it was Johns. (N. Y.) Ch. 90; Bowman v. Wathen, held that where bank-notes have been sued 2 McLean (U. S. C. C.), 876; Hakins upon in due time, and judgments thereon v. Barney, 5 Pet. (U. S.) 457 ; Coulton v. recovered, a bill to bring in equitable assets Walters, 4 id. 62; Robinson v. Hook, 4 and subject them to the judgments for Mas. (U. S. C. C.) 139 ; Baker v. Biddle, the satisfaction thereof is not governed by i Bald. (U. S. C. C.) 419 ; Miller v. Methe periods of limitation that would be Intyre, 6 Pet. (U. S.) 61. applicable if the bank-notes, instead of the 7 Lawrence r. Trustees, 22 Den. (N. Y.) judgincnt, were the foundation of the bill. 577; Rockwell v. Servant, 54 Ill. 251.

of equity in England bad considered that statute, affords a strong presumption that the legislature intended to bind courts of equity by them, as well as courts of law, is far-fetched and fallacious, as these statutes are to be construed strictly, being in derogation of vested rights, and are not to be extended by implication to cases or causes of action not fairly embraced within the terms of the language employed; and it is generally held by our courts that, except in the single case of concurrent jurisdiction, courts of equity may act in analogy to the statute or not, as the ends of justice and the strict equity of the case seems to require. Indeed, it often occurs that a court of equity refuses relief upon the ground that the party seeking it has slept upon his rights until they have become stale, even though the statute has not run thereon. But this is only in rare and exceptional instances, where the party can be said to have acquiesced in the wrong of which he complains, and generally a right will not be regarded as lost by staleness by a period less than that provided for the limitation of analogous cases at law,: nor even then, if the delay is reasonably explained. In an Illinois case this proposition was well illustrated. In that case the administratrix of a deceased partner filed a bill soon after his death against the surviving partner for an account of the partnership funds. The civil war broke out soon after, and the complainant being a resident of one of the disloyal States could not have ready communication with her counsel, and the defendant, who resided in the county where the suit was pending, did nothing to bring the cause to a hearing, and no steps were taken therein from 1862 to 1869. In the latter year the defendant died, and the complainant revived the suit against his personal representatives, and from that time up to the fire of October, 1871, in Chicago, the suit was actively prosecuted, and the record had become very voluminous, when it was destroyed by that fire. It being found impossible to supply that record, the suit was dismissed, and another suit instituted, being in reality a revival of the former suit, the dismissal having been made to avoid the difficulties arising from the inability of the parties to supply the lost record. The court held that there were no such laches on the part of the complainant as deprived her of a standing in a court of equity.® There are also a class of cases covering another ground

1 Farnam v. Brooks, 9 Pick. (Mass.) Neely's Appeal, 85 Penn. St. 387 ; Preston 242 ; Elmendorf v. Taylor, 10 Wheat. v. Preston, 95 U. S. 200. (U. S.) 168.

5 Johnson v. Diversy, 82 Ill. 446. 2 Hunt v. Ellison, 32 Ala. 173; Ham- 8 In Reed v. West, 47 Tex. 240, it was lin v. Mebane, 1 Jones (V. C.) Eq. 18; held that a court of equity would call on Ferson v. Sanger, 1 Davies (U. S. C. C.), courts of law during the suspension of the 252 ; Kerby v. Jacobs, 13 B. Mon. (Ky.) statute by the civil war, and would not, 435 ; Wilson v. Anthony, 19 Ark. 16. except for some equitable reason, hold a

3 Dugan v. Gittings, 3 Gill (Md.), 138; party who had neglected to attempt an enReed v. West, 47 Tex. 240.

forcement of his rights during this period 4 Warner v. Daniels, 1 W. & M. (U. S.) as guilty of such laches as would deprive 90; Calwell 0. Miles, 2 Del. Ch. 110 ; him of equitable relief.

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