A bill was filed in the Circuit Court of Ohio for a conveyance
of the legal title to certain real estate in the City of
Cincinnati, and the statute of limitations of Ohio was relied on by
the defendants. The complainant claimed the benefit of an exception
in the statute of nonresidence and absence from the state, and
evidence was given tending to show that the person under whom he
made his claim in equity was within the exception. The nonresidence
and absence were not charged in the bill, and of course were not
denied or put in issue in the answer.
Held that the court
can take no notice of the proofs, for the proofs, to be admissible,
must be founded upon some allegations in the bill and answer. If
the merits of the case were not otherwise clear, the court might
remand the cause for the purpose of amending the pleadings.
There was in this case a clear adverse possession of thirty
years, without the acknowledgment of any equity or trust estate in
anyone, and no circumstances were stated in the bill or shown in
evidence which overcame the decisive influence of such an adverse
possession. The established doctrine of the law of courts of
equity, from its being a rule adopted by those courts, independent
of any legislative limitations, is that it will not entertain stale
demands.
On 6 December, 1827, the appellant, a citizen and resident of
the State of Kentucky, filed a bill in the Circuit Court of the
United States for the District of Ohio setting forth that in the
year 1789, when the City of Cincinnati was first laid out, the
country being then a wilderness and the town plat a forest of
timber, certain lots in the said city were allotted as donations to
those who should make certain improvements within given periods of
time, and the evidence of ownership, consisting of the certificate
of the proprietors, was transferred from one person to another by
delivery as evidence of title. That the lot No. 1 on the said plat,
now occupied as the Cincinnati Hotel, was allotted to one Samuel
Blackburn, who, before the conditions of the donation were
fulfilled, transferred his right to one James Campbell, who soon
thereafter transferred it to one John Bartle, who, in the summer of
the year 1790, took possession of the same and completed the
improvements
Page 34 U. S. 406
required by the terms of the donation. That said Bartle
continued to occupy said lot and the building thereon erected by
himself first and subsequently by his tenants Elliot and Williams
and by his tenant Abijah Hunt for several years, having the
certificate of the proprietors of the town as his evidence of
title, and the said Bartle, having become embarrassed in his
circumstances, mortgaged the said lot to one Robert Barr of
Lexington, Kentucky, of whom, and his heirs, if deceased, nothing
was known, for the sum of about $700, to the payment of which the
rents reserved to said Bartle from the tenants in possession were
to be and a large amount was in fact appropriated and paid. That
the said Bartle, having been upset in crossing the Ohio River and
thrown into the same, lost his certificate for said lot, and this
fact coming to the knowledge of one Charles Vattier, a citizen and
resident of the State of Ohio, who, it is prayed, may be made
defendant to the bill, and the said Bartle being then in very
reduced circumstances, the said Vattier contriving and intending to
defraud the said Bartle of the said lot, then become considerably
valuable, went to Lexington and purchased of said Barr the mortgage
given on said lot by said Bartle, which he took up, and having
obtained from Abijah Hunt, then the tenant of said Bartle, the
possession of the said lot in the absence of said Bartle from the
country, the said Vattier obtained from John Cleves Symmes, in whom
the legal title was, a conveyance for said lot.
That said Vattier, having thus fraudulently obtained the
possession of and title to said lot, afterwards sold the same to
one John Smith, who had full notice and knowledge of the original
and continued claim of said Bartle to the same, which said Smith is
since deceased, and his heirs, if any are alive, are unknown to the
complainant, and the said Smith, after occupying the same for a
time, sold the same to one John H. Piatt, who had full notice and
knowledge of Bartle's claim thereto; said John H. Piatt is since
deceased, leaving Benjamin M. Piatt and Philip Grandon and Hannah
C. his wife, citizens and residents of the State of Ohio, his heirs
at law, with others not citizens of this state, and who cannot
therefore be made defendants. And the said John H. Piatt, in his
lifetime, mortgaged the same to the President, Directors, and
Company of the Bank of the United States, under
Page 34 U. S. 407
which mortgage the said President, Directors, and Company of the
Bank of the United States have obtained possession and complete
title, with full notice and knowledge of the claim of said Bartle.
And the said President, Directors, and Company of the Bank of the
United States have sold the same to one John Watson, a citizen and
resident of this state, who, it is prayed, may be made defendants
to this bill, the said Watson being in the actual possession of
said premises, but has not paid the purchase money or obtained a
deed therefor.
The bill further shows that the said Bartle asserted to the said
Vattier, to the said Smith and to the said Piatt his right to said
premises at various and different times, but from poverty was
unable to attempt enforcing the same in a court of equity or
elsewhere, and the complainant has recently purchased from said
Bartle his right to said lot and obtained a conveyance from him for
the same. The bill prays that the said President, Directors, and
Company of the Bank of the United States may be decreed to deliver
possession of said premises to the complainant and account for and
pay the rents and profits thereof to him and execute a quiet claim
deed therefor to him, or in case the said President, Directors, and
Company of the Bank of the United States be protected in the
possession thereof, that Charles Vattier be decreed to account for
and pay to the complainant the value thereof upon such principles
as shall be deemed just and equitable, and for other and further
relief, &c.
The Bank of the United States filed an answer denying any
knowledge of the facts alleged in the bill as to the title of
Bartle to the property in question and asserting a regular legal
title to the same in those under whom they hold the same. They
assert a possession of the property in Charles Vattier, from 1797
up to July 1806, when the property was purchased by John Smith, and
was afterwards, in 1811, sold by the sheriff by virtue of a
fieri facias, as the property of John Smith, and bought by
John H. Piatt, under whom and whose heirs the property is held by
conveyances, commencing in 1820, by mortgage, by deed in fee simple
from the heirs of John H. Piatt in 1823, and by a release of the
dower of the widow of John H. Piatt at the same time, for which
release the bank paid to the said widow $11,000.
Upon this lot of ground John H. Piatt made extensive and
Page 34 U. S. 408
costly improvements, and in particular erected the Cincinnati
Hotel.
The answer states that the bank, at the time of the purchase,
knew nothing of the claim of the complainant or of Bartle, and that
they claim a complete title to the lot under John C. Symmes,
Charles Vattier, John Smith, and John H. Piatt, and his heirs and
representatives and widow, as above stated, and they allege that
said Vattier took possession of said lot about the year 1799, and
that said Vattier and those claiming under him have continued in
the uninterrupted possession of said premises ever since, being a
period of more than twenty-eight years.
The answer of Charles Vattier denies all the allegations in the
bill which assert his knowledge of the title, said to have been
held by Bartle to the property, and asserts a purchase of the
property claimed by Robert Piatt from Robert Barr of Lexington,
Kentucky, and that a complete legal title to the same had been made
to him by John Cleves Symmes, holding the said legal title. That he
came fairly into the possession of this property, and at that time
had not the least notice or knowledge of the supposed equitable
claim of the said Bartle to the lot. He further states that while
he lived on said lot, he frequently saw Bartle, who was often in
the house on the lot; that said Bartle never made known to him or
intimated to him that he had any claim or title to the lot; that
while he was the owner of the lot, he made improvements on the
same, of which Bartle had knowledge. He does not believe or admit
that said Smith had any notice of the several matters and things
set forth in the bill at the time he received a conveyance for said
lot from this defendant, as before stated, or that he knew or had
heard anything of the supposed right or claim of said Bartle to
said lot. He further states that ever since he took possession of
said lot in the year 1797, there has been a continued possession of
the same under his title thus acquired from said Symmes by the
successive owners as set forth in the bill. He knows nothing of the
inability of said Bartle, on account of his poverty, to assert his
title to said lot, if he had one, nor does he know that the said
Robert Piatt has purchased from the said Bartle his right to said
lot and obtained a conveyance from him for the same, and therefore
he requires full proof of the same.
Page 34 U. S. 409
The complainant filed a general replication.
The depositions of a number of witnesses were taken and filed in
the case, and on 19 December, 1831, the circuit court made a decree
dismissing the bill and stating that the equity of the case was
with the defendants and that the complainant was not entitled to
the relief sought.
The complainant appealed to this Court.
Page 34 U. S. 413
MR. JUSTICE STORY delivered the opinion of the Court.
This is an appeal from the decree of the Circuit Court of the
District of Ohio in a suit in equity in which the present appellant
was original plaintiff.
In June, 1827, the plaintiff purchased of John Bartle the lot of
land in controversy, which is asserted to be worth from $50,000 to
$70,000, for the consideration, as stated in the deed of
conveyance, of $3,000, and the present suit was brought in December
of the same year. The bill states that when the City of Cincinnati
was laid out in 1789, the country being then a wilderness, certain
lots of the city were allotted as donations to those who should
make certain improvements, and that the evidence of ownership of
such lots was a certificate of the proprietors, which was
transferable from one to another by delivery. That lot, number one,
on the plat of the city (the lot in controversy) was allotted to
Samuel Blackburn, who transferred his right to one James Campbell
who transferred it to Bartle in 1790, and the latter completed the
improvements required by the terms of the donation. That Bartle
continued to occupy the lot under this certificate of title for
several years, when, becoming embarrassed, he mortgaged the lot to
one Robert Barr of Lexington, Kentucky, of whom, the bill states,
and his heirs, if deceased, the plaintiff knows nothing, for the
sum of $700, for the payment of which the rents received by Bartle
from the
Page 34 U. S. 414
tenants in possession were to be appropriated and paid. The bill
then alleges that Bartle afterwards lost the certificate in
crossing the Ohio River; that Charles Vattier, one of the
defendants, fraudulently purchased the mortgage of Barr and
obtained possession of the lot from the tenants in the absence of
Bartle from the country, and acquired the legal title from John C.
Symmes, in whom it was vested. That Vattier afterwards sold the
same to one John Smith, who is since deceased, and his heirs, if
any are alive, are unknown to the plaintiff, and who had full
notice of Bartle's title.
That Smith afterwards sold the same to one John H. Piatt, since
deceased, whose heirs are made defendants, who also had notice of
Bartle's title; that Piatt, in his lifetime, mortgaged the same to
the Bank of the United States, which has obtained possession and
complete title, with the like notice. The bill further charges that
Bartle asserted his right to the premises to Vattier, Smith, and
Piatt at various times, but from poverty was unable to attempt
enforcing the same in a court of equity or elsewhere, and that the
plaintiff has recently, in December, 1827, purchased Bartle's right
and obtained a conveyance thereof. The bill then states that the
plaintiff had hoped that the bank would have surrendered the
possession, or in case it refused so to do, that Vattier would have
accounted with the plaintiff for the value thereof, taking an
account of the mortgage money paid to Barr of the improvements,
rents, profits, &c. But that the bank has refused to surrender
the possession, and Vattier has refused to account. And it then
prays a decree against the bank to surrender the possession and
account for the rents and profits and to execute a quiet claim, or
if the bank is protected in the possession, that Vattier shall be
decreed to account and for general relief.
In their answers, Vattier and the Bank of the United States
assert themselves to be
bona fide purchasers for a
valuable consideration of an absolute title to the premises without
notice of Bartle's title, and they rely on the lapse of time also
as a defense. The bill, as to the heirs of J. H. Piatt, was taken
pro confesso, they not having appeared in the cause.
From the evidence in the cause it appears that Vattier and those
claiming title under him have been in possession of the premises,
claiming an absolute title thereto adverse to the title
Page 34 U. S. 415
of Bartle ever since 20 March, 1797, the day of the date of the
conveyance from Symmes to Vattier. At the hearing in the circuit
court, the bill was dismissed, and the cause now stands before this
Court upon an appeal taken from that decision.
Various questions have been made at the argument before us as to
the nature and character of Bartle's title, and if he had any valid
title, whether the purchasers under Barr had notice of it. With
these and some other questions we do not intermeddle because ,in
our view of the cause, they are not necessary to a correct decision
of it.
The important question is whether the plaintiff is barred by the
lapse of time, for we do not understand that the adverse possession
presents, under the laws of Ohio, any objection to the transfer of
Bartle's title to the plaintiff if Bartle himself could assert it
in a court of equity. This question has been argued at the bar
under a double aspect -- first upon the ground of the statute of
limitations of Ohio, and secondly upon the ground of an equitable
bar by mere lapse of time, independently of that statute.
In regard to the statute of limitations, it is clear that the
full time has elapsed to give effect to that bar, upon the known
analogy adopted by courts of equity in regard to trusts of real
estate, unless Bartle is within one of the exceptions of the
statute by his nonresidence and absence from the state. It is said
that there is complete proof in the cause, to establish such
nonresidence and absence. But the difficulty is that the
nonresidence and absence are not charged in the bill, and of course
are not denied or put in issue by the answer, and unless they are
so put in issue, the court can take no notice of the proofs, for
the proofs to be admissible must be founded upon some allegations
in the bill and answer. It has been supposed that a different
doctrine was held by Lord Hardwicke in
Aggas v. Pickerell,
3 Atk. 228, and
Gregor v. Molesworth, 2 Ves. 109, and by
Lord Thurlow in
Deloraine v. Browne, 3 Bro.Ch. 632. But
these cases did not proceed upon the ground that proofs were
admissible to show the party, plaintiff, to be within the exception
of the statute of limitations, when relied on by way of plea or
answer, and the exception was not stated in the bill or specially
replied, but upon the ground that the omission
Page 34 U. S. 416
in the bill to allege such exception could not be taken by way
of demurrer. And even this doctrine is contrary to former decisions
of the court, [
Footnote 1] and
it has since been explicitly overruled, and particularly in
Beckford v. Close, 4 Ves. 476;
Foster v. Hodgson,
19 Ves. 180, and
Hovenden v. Lord Annesley, 2 Sch. &
Lefr. 637-638. And the doctrine is now clearly established that if
the statute of limitations is relied on as a bar, the plaintiff, if
he would avoid it by any exception in the statute, must explicitly
allege it in his bill or specially reply it, or, what is the modern
practice, amend his bill if it contains no suitable allegation to
meet the bar. [
Footnote 2] In
the present case, if the merits were otherwise clear, the court
might remand the cause for the purpose of amending the pleadings,
and supplying this defect. But in truth, the answers, though they
rely generally on the lapse of time, do not specially rely on the
statute of limitations, as a bar, and the case may therefore well
be decided upon the mere lapse of time, independently of the
statute.
And we are of opinion that the lapse of time is, upon the
principles of a court of equity, a clear bar to the present suit
independently of the statute. There has been a clear adverse
possession of thirty years without the acknowledgement of any
equity or trust estate in Bartle, and no circumstances are stated
in the bill, or shown in the evidence, which overcome the decisive
influence of such an adverse possession. The established doctrine
-- or as Lord Redesdale phrased it in
Hovenden v.
Annesley, 2 Sch. & Lef. 637, 638, "the law of courts of
equity" -- from its being a rule adopted by those courts,
independently of any positive legislative limitations, is that it
will not entertain stale demands. Lord Camden, in
Smith v.
Clay, 3 Brown's Ch. 640, note, stated it in a very pointed
manner. "A court of equity," said he,
"which is never active in relief against conscience or public
convenience, has always refused its aid to stale demands where the
party has slept upon his rights or acquiesced for a great length of
time. Nothing
Page 34 U. S. 417
can call forth this Court into activity but conscience, good
faith and reasonable diligence. 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 of suit in this
Court."
The same doctrine has been repeatedly recognized in the British
courts, as will abundantly appear from the cases already cited, as
well as from the great case of
Cholmondeley v. Clinton, 2
Jac. & Walk. 1. [
Footnote
3] It has also repeatedly received the sanction of the American
courts, and was largely discussed in
Kane v. Bloodgood, 7
Johns.Ch. 93, and
Decouche v. Saratiere, 3 Johns.Ch. 190.
And it has been acted on in the fullest manner by this Court,
especially in the case of
Prevost v.
Gratz, 6 Wheat. 481, 5 Cond. 142;
Hughes v.
Edwards, 9 Wheat. 489, 5 Cond. 648;
Willison v.
Matthews, 3 Pet. 44; and
Miller v.
McIntire, 6 Pet. 61,
31 U. S. 66.
Without, therefore, going at large into the grounds upon which
this doctrine is established, though it admits of the most ample
vindication and support, we are all of opinion 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 ought
to be
Affirmed with costs.
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
decreed and ordered by this Court that the decree of the said
circuit court in this cause be and the same is hereby affirmed with
costs.
[
Footnote 1]
See South Sea Company v. Wymondsell, 3 P.Wms. 143, 145,
and Mr. Coxe's note; Cooper's Eq.Pl. 254, 255;
Smith v.
Clay, 3 Bro.Ch. 640, note.
[
Footnote 2]
See Belt's note to the case of
Deloraine v.
Browne, 3 Bro.Ch. 640, n. 1;
Miller v.
McIntire, 6 Pet. 61,
31 U. S. 64.
[
Footnote 3]
See also Beckford v. Wade, 17 Ves. 86;
Barney v.
Ridgard, 1 Cox.Cas. 145;
Blannerhassett v. Day, 1
Ball. & Beatt. 104;
Hardy v. Reeves, 4 Ves. 479;
Harrington v. Smith, 1 Bro.Par.Cas. 95.
