7 Paige Ch. 195 | New York Court of Chancery | 1838
Various objections to the bill in point of form are raised by the demurrer, some of which I think are well taken; but as these might probably be obviated by amendments of the bill, I prefer to put my decision in this case upon an objection which goes to the merits, and which unquestionably cannot be obviated in any form of proceeding which can be adopted, either in this court or elsewhere. That objection is that the rights of the complainants, if those under whom they claim title had such rights as stated in the bill, are barred by lapse of time.
It is evident from the complainants’ own showing that the defendants had been in the exclusive possession of the premises in controversy, claiming the same as their own, for more than forty years previous to the commencement of this suit; and no sufficient excuse is shown to take the case out of the general rule, that a suit in equity is barred by lapse of time if it is not instituted within twenty years after the complainants’ right to commence proceedings in this court accrued. This rule is so well settled that it would be a useless waste of time to review all the decisions in this country and in England on the subject. I will therefore merely refer to a few of the more recent cases in which the existence of the rule is recognized. (Cholmondely v. Clinton, 4 Bligh’s Rep. O. S, 1, per Lords Eldon and Redesdale. Fenwick v. Macey’s Ex’rs, 1 Dana’s Rep. 278. Elmendorf v. Taylor, 10 Wheat. Rep. 152. Byrne v. Frere, 2 Malloy’s Ch. R. 157. Terril v. Murray, 4 Yerg. Rep. 04.) Here if the complainants would have had a right to come into this court, upon the case made by the bill, had such bill been filed in time, they still had a concurrent remedy in a court of common law. And in cases of that
It was formerly doubted whether a defendant in equity could by demurrer make the objection that the remedy was barred by lapse of time, or whether he must not resort to his plea. But it now seems to be settled, that if it appears upon the face of the bill that the suit is barred by lapse of time the defendant may demur; and that if the case is within any of the exceptions of the statute the complainant must state the fact in his bill. (Dunlap v. Gibbs, 4 Yerg. Rep. 94. Hoare v. Peck, 6 Sim. Rep. 51. Cuthbert v. Creasy, 4 Bligh’s Rep. O. S. 125. Wisner v. Ogden, 4 Wash. C. C. Rep. 631. Fyson v. Pole, 3 Young Coll. Rep. 266.) Whether the complainants’ case, therefore, is one of concurrent jurisdiction, or of equitable cognizance only, the remedy was barred by lapse of time long before the filing of this bill. And the decision of the vice chancellor, allowing the demurrer and dismissing the bill, must be affirmed with costs.
