1821. CHOLMONDELEY CLINTON Title of entry subpœna. tain actions upon particular writs, which apply only to particular persons. The general provision, that no entry shall be made by any person, unless within twenty years after the right or title of entry shall have accrued, Lord Hardwicke, and other judges in equity, have said is a provision in the statute upon which courts of equity have acted. It has been attempted, at your bar, to argue upon the ground that Lord Cholmondeley, claiming as heir, might bring a writ of right, if the question was open at law; but that is a particular writ, in which particular privileges are allowed, and the courts of equity have never regarded that, or the writ of formedon, or any other particular writ, but have considered the limitation in the statute of James I., of twenty years after the rights or title of entry accrued, as that which was to decide. Now, how is right and title of entry to be conin equity is by strued with respect to an equitable estate? The right and title of entry, in a court of equity, cannot mean a right to go upon the land and take possession of it, in the form of the old entry at the common law; but it means the right of instituting a suit in equity upon the subject, to avoid a fine, if a fine is levied of an equitable estate; it is not by entry in the common way, but it is laid down, qyer and over again in very ancient cases, that the claim must be by subpoena, because your title is a title with respect to a right in equity, and the way of asserting the title of entry is not by entering on the lands, but by instituting a suit in equity. I conceive therefore that the very words of the statute of James I., if it is a statute which has any application to a court of equity, apply to such a case as this. The title to this property accrued 1821. CHOLMONDELEY CLINTON. above twenty years before the bill filed, and therefore that title in a court of equity is barred by this statute, supposing it to be a statute which courts. of equity are to consider as affecting their proceedings, as well as proceedings at common law. Now, although the statute itself applies only to proceedings at common law, in direct words, it must be understood to have been intended by the legislature to affect proceedings in courts of equity; for courts of equity have been constantly declaring, we will, with respect to equitable titles, proceed by analogy to the proceedings of courts of common law; and when the lawgivers were prescribing the mode of proceeding in the courts of law, they must have been considered as intending to make an act of parliament to regulate the proceedings in courts of equity also. It is extremely difficult to frame precise words upon that subject; but if the legislature, at the time when they passed that act, were aware that there were suits in equity, and that all large estates and every considerable property was constantly turned into an equitable property, and if the object of that act was to quiet possession, they would have provided for that very imperfectly, if they had not intended that the enactment contained in that act should be considered as binding upon the courts of equity, as well as the courts of law, according to the mode of proceeding in those courts. I take it therefore to be a positive law, Courts of which ought to bind all courts, and for that reason effect to the I have taken the liberty in another place to say, limitation prothat I considered it not simply a rule adopted by ceed not merely courts of equity by analogy to what had been in obedience to done in courts of law under the statute, but that the statutes. it was a proceeding in obedience to the statute, equity in giving statutes of by analogy, but 1821. CHOLMONDELEY V. CLINTON. and that the framers of that statute must have meant that courts of equity should adopt that rule of proceeding. If it were otherwise, only consider in what a situation property in this country would be, where in large settlements of estates terms are created, provisions made for younger children, and mortgages subsist upon the property. The consequence would be, that the title of the person in actual possession would be doubtful: a very large portion of the property of the country being equitable and not legal, if the statute of limitations did not apply even by its enactment to that sort of property, the whole property of the country would be in danger of being disturbed by suits without number, and the object of the statute, namely, the quieting of possession, could never be obtained. With respect to fines, it is over and over again determined, that a fine will bar an equitable as much as it will a legal estate—it is over and over again determined, that a court of equity does not enter into the question, whether there shall be entry. It is impossible to suppose that Lord Hardwicke, in the case of Hopkins v. Hopkins, should not have had this subject in his contemplation. The next consideration is upon the effect of the deed of 1794. Now, I apprehend, that that deed is extremely important to be considered with respect to the lapse of time: because, independently of the statute of limitations, and if there had been no such statute, what is the effect of that deed of 1794? The deed of 1794 recites the deed of 1781, it recites that under that deed Lord Clinton entered into possession; the deed of 1794 acknowledges that he had a legal title under that deed, unless it was qualified by the deed of 1785,、 and then noticing the settlement of 1792, it confirms that settlement, certainly, with a qualification in point of words, so far as the deed of 1781 might have been revoked by the deed of 1785. First of all the deed of 1794 recites, that the motives of Lord Horace in that deed were his conviction that such was the intention of Earl George, and that therefore, if he had the legal right, furthering that intention, he would have preserved that intention. He has, in the same deed, stated his conviction, that under the deed of 1781, if not affected by the deed of 1785, Lord Clinton had by the intention of George Earl of Orford a right to this estate; and what reason is there to suppose that Horace Earl of Orford, had not the same view of the subject, with respect to the deed of 1781. It can hardly be doubted, whether under the deed of 1781, the estate did or did not go to Lord Clinton, whether there was a mistake, or whether it was affected by the deed of 1785 or not. If Lord Horace was here, he might say such was not my intention, but how can Lord Cholmondeley or Mrs. Damer say so; they know nothing of what passed in his mind, except what is in his deed, and what do you see in his deed? you see he was anxious that the intention of Earl George should be carried into execution; not simply, that what was the real right between the parties should have effect, but that the intention of Earl George should be carried into effect, that is, the intention of Earl George to limit his own estate to the person who should be heir of the Rolle family, and Earl Horace might have felt a conscientious desire to perform what he must know was the anxious wish of Earl George. It was the 1821. CHOLMONDELEY v. CLINTON. wish of Lord Horace also: Lord Horace, by executing the deed of 1794, has declared to all the world, who could deal with the property; "the construction I put on the deed of 1781 is, that it gives the estate to Lord Clinton, for the deed of 1794 recites the deed of 1781: it recites the possession of Lord Clinton, under the deed of 1781, upon the death of George Earl of Orford on the 5th of December, 1791, and it recites the settlement of 1792, and the recital in that settlement, that those estates did, on the decease of the said George late Earl of Orford, come to and vest in the said Lord Clinton, subject and liable with other estates, to the mortgage made by George Earl of Orford." By this deed so executed by him, the contents of which it is to be presumed he was cognizant of, Lord Horace has declared, such is my construction of the deed of 1781: he might have taken it for granted, that that deed did vest the estate in Lord Clinton; but either he did take that for granted, or he was willing that such should be the construction, and he held out to all the world, that the deed of 1781 had conveyed the estate to Lord Clinton. He having held out to all the world that idea, can persons, claiming under him at this distance of time, say that a court of equity is to interfere as a court of conscience, to affect all persons who have been dealing with the property. What is the common case: if A. were to say to B., C. has a good title to such an estate, therefore, you may deal with him, I will be responsible in damages? If A. himself had the title and said that he would be responsible for all the dealings, it never could be permitted for him to frustrate what had been done in consequence of that declaration. |