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1822.

Ricard

V.

Williams.

mon purposes of justice, which should allow a creditor to come on the land for his debt, at any time, and in whosoever hands he might find it. The courts of Massachusetts have expressed the opinion, that a creditor, by unreasonable neglect and delay, in pursuing his remedy, should be deemed to waive his lien on the land ; and have very clearly intimated that in ascertaining what neglect ought to be considered as unreasonable, they should be governed by the analogy of the statute of limitations. They have also decided that the estate should not be sold, if the creditor's demand be barred by the act limiting actions against administrators and executors; and that if the administrator pay the debt himself, and then lie by till it would have been barred, he shall not indemnify himself by charging it on the land.

In this case there is great reason for following the analogy of the statute of limitations. The words of the Connecticut statute are the same as those of the English, except as to the number of years. “No person shall make entry into lands, &c., but within fifteen years next after his right or title shall descend or accrue.” This is descriptive of the title under which he enters, and does not regard the time of his own accession to that title. In the case of Beach v. Catlin, it would seem to be intimated by one of the

A

a Gore v. Brazer, 3 Mass. Rep. 542. Wyman v. Brigden, 4 Mass. Rep. 150.

b Scott v. Hancock, 13 Mass. Rep. 162. Allen v. Strong, 15 Mass. Rep. 58.

4 Day's Rep. 284.

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Ricard w.

learned judges, that a judgment creditor, coming into the land by extending his judgment on it, is in under a new title, and that, as to him, the statute runs only from the time of the execution of the writ. That case is understood to have been relied upon as applicable to this, in the Court below. It would be difficult, I think, to support it; for supposing that a judgment can be extended on lands, of which the judgment debtor is not in possession, but which are in possession of another holding adversely to him, it would seem that he could derive no higher right, or better title than his debtor had, and must hold under him. This would not be the accruing of a new title in the judgment creditor, but merely a transfer or devolution of an existing title. It is no more a new title than if he had acquired it by deed of conveyance. Perhaps it would not be going too far, in the case now before the Court, to hold the demandants within the words of the statute, on a liberal construction, as having a right to enter, being creditors, on the death of their debtor, insolvent; for although the right was not perfect, they could make it perfect whenever they pleased. They could as well have caused letters of administration to be taken out in 1784, as in 1814. But because this may be, I contend the present case is within the principle of the cases which have been decided by the analogy of the statute of limitations, and on grounds of public policy. It is well known that many cases which are not within the letter of the statute, are construed to be within it by analogy. The statute, for instance, does not apply, in terms, to proceedings in equity;

1822.

Ricard

V.

Williams

but they are affected by analogy. Where a party has an equitable lien, if he be guilty of such negligence as would bar him at law, he shall be barred in equity. In relation to the whole class of incorporeal hereditaments, whether the cases arise in equity, or at law, the bar is furnished, not by the terms of the statute of limitations, but by its analogy. So is the law, also, with regard to an equity of redemption. There is no right to enter. It is but a mere equitable interest in the land; it is not, therefore, within the terms of the statute ; but yet it is barred by the lapse of time prescribed by the statute for other cases.c Rent, also, a highly favoured lien, will be presumed to be discharged by the lapse of the statute period.

In short, it will be difficult to find a case in which a lien upon land, which may be asserted and enforced at any timne, has been established, after the expiration of the time allowed to make title to the land itself. In most of these cases, the ends of justice, and the policy of the law, are attained by presuming a grant. This presumption is made from principles of public policy, and the necessity of the case. It is for the furtherance of justice, and for the sake of peace: it is founded in this, that whatever has long existed, and has been acquiesced in by

3 East, 294.

# 1 Scho. & Lefr. 413.

b 2 Saund. 175. note a. i Bos. & Pull. 401. 4 Day's Rep. 244.

c 1 Powell Mort. 408.

d Bailey v. Jackson, 16 Johns. Rep. 210. :

1822.

Ricard

Williams.

those who had an interest to disturb it, had, probably a lawful beginning. It is not to be supposed that a man would suffer another to obstruct the enjoyment of his right without complaint, and an effort to obtain redress. The presumption is not to be made out, by weighing minutely the evidence of particular facts and probabilities. This would be proof, not presumption.

Legal presumption is resorted to where there is no particular proof, and because there can be no particular proof; the question, in such cases, is not to be decided by personal belief or disbelief. The grant presumed is taken to exist as a fact, in contemplation of law.

Whatever is possible may be presumed, in order to establish long continued possessions. Royal charters, acts of parliament, grants from the state, common recoveries, and private conveyances of all descriptions. Some of the questions now presented here were fully discussed in the Supreme Court of Connecticut, in a case in which the same parties were plaintiffs, as in this, and which respected the same title: and I refer particularly to the judgment pronounced in that case by the chief justice. The ground is, that by a neglect to assert the claim, and enforce the lien for a length of time equal to that prescribed by the statute to bar a title to the land itself, the creditor shall be presumed to have waived

a 2 Bos. & Pull. 206. 12 Ves. 261.
6 12 Ves. 374. 2 Ilen. fMunf. 370.
c Sumner v. Child, 2 Conn. Rep. 607.

2 T. R. 159.

1822.

or surrendered the lien; that this presumption stands on principles of public policy, and furnishes a complete bar to the demandants' recovery.

Ricard

Williams.

Mr. Justice STORY delivered the opinion of the Feb. 28th. Court.

The principal questions which have arisen, and have been argued here, upon the instructions given by the Circuit Court, and to which alone the Court deem it necessary to direct their attention, are, First, whether upon'the facts stated, a legal presumption exists, that William Dudley died seised of an escate of inheritance in the demanded premises ; and, if so, Secondly, whether an exclusive possession of the demanded premises, by Joseph Dudley and his grantees, after the death of William, under an adversary claim, for thirty years, is a bar to the entry and title of the demandants under the administration sale. It is to be considered, that no paper title, of any

Possession,

how evidence sort, is shown in William Dudley, or his son Joseph. of ownership. Their title, whatever it may be, rests upon possession ; and the nature and extent of that possession must be judged of by the acts and circumstances which accompany it, and qualify, explain, or control it. Undoubtedly, if a person be found in possession of land, claiming it as his own, in fee, it is prima facie evidence of his ownership, and seisin of the inheritance. But, it is not the possession alone, but the possession accompanied with the claim of the fee, that gives this effect, by construction of law, to the acts of the party. Possession, per se, eviden

VOL. VII.

14

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