Robert Cooper Grier

“ This is the peremptory, inflexible rule of law, fixed by positive statutes, if there has been adverse possession, and no disability or fraud. No plea of poverty, ignorance, or mistake can be of any avail. However clear and indisputable the title, if the merits could be inquired into,' &c.
Lord Chancellor Manners, in Medlicott v. O'Donnell, 1 Ball & Beat. 164, thus expressed himself:-'I think, then, I stand well supported by principle and authority in saying that the court is bound to regulate its proceedings by analogy, or in obedience to the statute of limitations. ”

“ 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. ”

“ But the making up of accounts, after long periods of time, being very difficult, and attended with great hardship on the mortgagee, it hath been thought reasonable to establish in equity, in analogy to the statute, a period at which, prim a facie, the right of redemption shall be presumed to be deserted by the mortgagor, unless he be capable of producing circumstances to account for his neglect, such as imprisonment, infancy, coverture, or by having been beyond seas, and not by having absconded, which is an avoiding or retarding of justice. ”

“ 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 will be incumbent on the mortgagee and his representatives to define, particularly, the period and essence of the acknowledgments which he avers to have taken place, and to show with accuracy the commencement and continuance of every disability which he suggests as the cause of forbearance.
Lord Chancellor Erskine, in the case of Hillary v. Waller, 12 Ves. 239, said:-'The presumption in courts of law, from length of time, stands upon a clear principle, built upon reason, the nature and character of man, and the result of human experience. ”

“ 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. ”

“ Wilson, 10 Ohio, 502, also a petition for dower, and held to be barred by the statute. Wood, J., says (p. 26) ,-'The petition for dower is substantially, when prosecuted, 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 original deed of trust is lost; due search has been made for it, and the complainants verily believe that the original was consumed by fire in the recorder's office in Kentucky.
That on the 16th of 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. ”

“ Mr. Ewing, in answer to lapse of time, relies upon the act for limitation of actions (which he 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. ”

“ 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 the 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 ”