
    Robert Piatt, appellant v. Charles Vattier and others, and the Bank of the United States.
    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 non residence and absence frpm the state : and evidence was given, tending to show that the person under whom he made his claim in equity was within the exception. Tiie non residence 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 tho .acknowledgement of any equity or trust estate in any one, and no circum-. stances 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.
    APPEAL from the circuit cQurt -of the United States for the district of Ohio.
    On the 6th of December 1827, the appellant, á 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 plata 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 improve-mehts 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, jf deceased,- nothing was known, for the sum of about 700 dollars, to the payment of which the rents reserved to said Bar-tie, from the- tenants in possession, were to be, and a large amount was in fact appropriated and paid. That the said Bar-tie having been upset in ciossing 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 io 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 Synames, 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 knowlcdgeof the original and continued claim of said Bartle to the same, which said Smith is since deceased, and his heirs, if any are alive, arc unknown to the complainant; and the said. Smith, after .occupying the same for a time, sold the same t.o one-John H. Piatt, who had full notice and knowledge of Barlle’s claim thereto ; said John H. Piatt is since deceased, leaving Benjamin M. Piatt and Philip Grandou 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-which mortgage the said President, Directors and Company of .(he 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 Stales have sold the’same to one John Watson, a- citizen and resident of this state, who, it is prayed, niay 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 recentlypurchasedfromsaidBartlehisfight 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 arid 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 knowlédge 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 relerise 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 dollars.
    Upon this lot of ground John H. Piatt made extensive arid 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 compléte 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 Vat.tier 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 Barde to tíre lot. He further states that, while he lived on said lot-, he frequently ^aw Bartle, who was often in the horise on the lot; that said Bartle never made known to him, oY intimated.to him, that he liad any claim ortitle to tile lot; that •while he was. the owner of the lot, he made improvements bn the ‘ same, of which- Bartle had knowledge. He does hot believe, or admit, that said Smith had any notice of the several matters and- things set forth in the bill at the tiirfe he received a. conveyance for said lot from this defendant, as before stated, or that he knew or had heard any thing 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 sgid 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.
    
      The complainant filed a general replication.
    The. depositions of a number of witnesses were taken and filed in the case; and on the 19th of 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.
    The case was argued by Mr Ewing and Mr Bibb, for the appellant; and by Mr Sergeant and Mr Webster, for the appel-lees. '
    The decision of the court having been given on the bar which was interposed by time, to the right of the appellant to recover, the arguments of counsel on the other points in. the case are omitted.
    Upon the eflfect of the statutes of limitations of Ohio on the claim of the appellant, and of time on the same, the counsel for the appellant contended, that the length of time is no bar, according to the facts and circumstances of this case.
    The question is, whether the claim set up in the bill is barred by the statute of limitations of Ohio.
    In Aggas v. Pickerell, 3.Atk. 222, (26th of June 1745) upon a bill.for redemption of mortgaged premises, of which the defendant had possession more than twenty years, the defendant demurred. The chancellor expressed’his opinion unfavour-ably to the demurrer. He said, “ how is it possible to give greater allowance to length of time than the statute of limitation does 1” ' “The plaintiff may, by way of reply or amending his bill, make it appear he is within the saving of the statute;5’ “ or upon á plea he may prove' himself to be within the exceptions.”
    In 3 Atk. 314, the same rule is observed, and redemption decreed in behalf of a “prowling assignee, who admitted he had the equity of redemption for a very inconsiderable .sum.” The .plaintiff was not barred by the statute of limitations; and, although the chancellor was much disinclined towards the assignee, he did decree in his favour; declaring, “ yet even in the case of an assignee of the equity of redemption, if the circumstances would induce the court to decree-redemption in favour of the mortgagor, the assignee who stands in his place will have the benefit of it.”
    In Higginson v. Mein, 4 Cranch 415 to 420, 2 Cond.' Rep. 135, the debt was enforced against the mortgaged premises, the presumption of payment from length of time being repelled by circumstances. But.after the elaborate argument and de-cisipn of this court, on a full investigation of the adjudged cases in ElmendorfF v. Taylor, 10 Wheat. 168, 6 Cond. Rep. 47, it is unnecessary to labour the principle. Itis-said confidently, that, so far. as the defendants below have relied upon length of time, the question is, whether there.are such laches and non claim of the rightful owner of this equity, for such a period as that he would have been barred by the statute of limitations of Ohio, supposing the plaintiff and those from whom he claims had held the legal estate.
    The provisions of the act of limitations of the state of Ohio, of 1804, applicable to this case, are, the first section, which limits the action of ejectment, &c., or other possessory action for lands, to twenty years ; and the third section, which contains the usual savings in favour of infants, femes covert, persons insane,.imprisoned, “or beyond sea, at the time when such actions may or shall have accrued;” and allows the period of twenty years before limited, “after such disability shall have been removed.”
    The. sections of the act of 1810, are the second, which limits the time for writs of ejéctment, or other possessory actions for lands, to twenty-one years; the third section, which contains the like saving, as the ‘act of 1804, for persons under disability of infancy, “ beyond sea,” &c., and allows the ■ like period of twenty-one years “ after such 'disability slrall have been removed ;” and the sixth section, which repeals' the act of limitations of 1804 ; and declares that this act (of 1810) shall take effec. on the 1st day.of June 1810.
    The third statute of limitations, passed 25th of February 1824, to take effect from the 1st of June 1824, is “ an act for the limitation of actions.” 22 Laws of Ohio 325.
    Section first limitó, “first, actions of ejectment, or any other action'for recovery of the title or possession-of lands, tenements, or hereditaments,” to twenty-one years; and then limits personal actions to-various shorter periods. Section second provides that “if any person who shall be entitled to have or commence any‘action of ejectment” “shall be within the age of twenty-one years, insane, feme covert, imprisoned, or without the' United States and territories thereof, at the time such cause of action shall have accrued; and.if any person who shall be entitled, to institute any other action limited by this act, shall be within age as aforesaid, insane, feme covert, imprisoned, or without' this commonwealth, at the time-such causé of action shall have accrued, every such jperson shall have-a right to commence any such action within the time hereinbe-ore limited, after such disability shall be removed.”
    The fourth and last act, passed 8th of February 1836, is “supplementary to the act .entitled, an act for the. limitation of actions;” Session Acts 60.
    This áct recites, that doubts had arisen whether the act passed 25th of February 1824, does not suspend the operation of all former acts of limitation on causes of action, prior to thé ,25th of February 1824,. not barred by former acts prior to that day; therefore, this act revives the acts of 1804 and 1810, for the purpose of limiting all actions the causes of which may have accrued after the 4th day of January 1804, and before the 25th of January 1810; -or after the 25th of January 1810, - and before the 25th of February 1824; according, to. the provisions of those acts,'“ but for no other purpose whatever.”
    It will be evident from the repealing clause- of 1824,* which took effect June 1st .1810, that as to causes of action thereto- ■ fore accrued, but not then barred, the limitation ceased. Upon such actions no statute of limitation had any bearing until the passage of the act of 1826; and no bar can b.e worked unless the supplementary act of 1826 can produce such effect.
    It has been decided that “ beyond. sea” means out of the state. Shelby v. Guy, 11. Wheat. 361, 6 Cond. Rep. 355. The evidence in this case shows that Bartle was absent from the state; and thus was fully entitled to the benefit of the exception. Courts of equity will apply the same rules, as are established by statutes of limitations; but they will not go beyond them. They will, give the benefit of the exceptions in ' the statute, when they adopt the rules of the statute. If it is necessary to set out specially in the original bill the exception of the statute, as protecting the appellant, he.should be allowed to amend his bill; and the court will remand the case, to give him an opporlunity to supply the omission. But- the complainant may, on authority, amend; or may prove that he is within the exception of the statute by"evidence; 3 Atkyns 2'26; and .this is the usual course.
    Mr Sergeant and Mr Webster, for the appellees.
    The Bank of the United States are protected against the claim of the appellant, by length of time.
    1. This protection is derived from length of time, independent of all statutes of limitations.
    2. From the express provision of the statutes of Ohio.
    The protection- is obtained by the general rulps of equity. The;bill has no datepyand if the case was stated ^as it is made oujt by/t/he eyidence, it would be demurrable. It would be a ■ cfe.se' of a mortgagee in possession for upwards of twenty years without payment of interest. This, in England, would be a demurrable bi .1. The possession .of the mortgagee was for thirty-five years. Cases cited upon this position: Hughes v. Edwards, 9 Wheat. 497, 5 Cond. Rep. 648; Willison v. Watkins, 3 Peters 43.
    It is no answer to say that the person who claims title was out of the state of Ohio. ■ The exception is one by statute, but the rule is 'one of courts óf equity, which has no exception.
    2. The plaintiff’s case is completely barred by the statutes of Ohio, unless he can protect it by the exception in the statute in favour of a person “ beyond seas.*’
    . In this case the appellant cannot avail himself of the exception in the statute:.- Vattier says, he went into possession in 1797, and this is a bar, unless the exception operates.' The appellant says he was out of the state. The question is one of law, not of evidence.
    The complainant having filed his bill in equity against a person in possession upwards of thirty years, and the defendants asserting the protection of the general provisions of the statutes of limitations; until the complainant shall establish by proof, that the exception applies to him, he cannot avail himself of it. The exception should have been put in issue. ' His protection by it should have been averred, in his bill, or in an amended bill. Cooper’s Chancery Práct. 6, 12, 329.
    How was it to be understood by the bill, that the material fact was to prove that Bartle was on the other side of the Ohio?
    In a court of common law a party' defendant pleads the statute of limitations ; the plaintiff replies an exception, and he must raise a prima facie case by evidence.. This will apply, in equity.
    There is no evidence, that the general residence of Bartle was out of the state. The case appears on the proceedings, that the defendants are to prove that Bartle is not within the exception, before the plaintiff has proved the general absence of Bartle, to place him within the exception.
   . 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 dollars to 70,000 dollars) for the consideration, as stated in the deed of conveyance, of 3000 dollars; and the present suit was brought in December of the same year.. The bill states, that when *hfe 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 Bláckburn, 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 Bar. le continued to occupy the lot under this certificateof title for several yeprá; when, becoming embarrassed, he mortgaged the lot to one Robert Barr of Lexington, Kentucky ; of whom, the bill states, and fiis heirs, if deceased, the plaintiff knows nothing; for the such.of TOO dollars; for the payment of which tjie rents received by Bartle,-from the tenants in possession, were to 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 Smitu 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 life time, mortgaged the sainé to the Bank of the United States, which has obtained possession and complete title, with the like notice. The bill further charges that Bartle assérted- his right to the premises to Vattier, Smith and Piatt at various times, but from poverty was unable to attempt enforcing the same in £ court of equity; or elsewhere; and that the plaintiff has -recently, in December 1827, purchased Bar-tle’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 defence. The bill, as to the heirs of J. II. Piatt, was taken pro c'onfesso, 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 of Bartle, ever since the 20th of 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’? 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 exception's of the statute by his non residence and absence from the state. It is said that there is complete proof in the cause, to establish such non residence and absence. But the difficulty is, that the non residence 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. Rep. 632. But these cases did not proceed upon the ground, that proofs were admissible to show the party, plaintiff, tobe 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 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 ; 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. and 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 modem practice, amend his bill, if it contains no suitable allegation to meet the bar. 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 tr'uát 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. and Lef. 637, 638, “ the law of courts oí 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. Rep. 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 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; lach.es 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. and Walk. l. It has also repeatedly received the sanction of the American courts, and was largely discussed in Kane v. Bloodgood, 7 Johns. Ch. Rep. 93, and Decouche v. Saratiere, 3 Johns. Ch. Rep. 190. And it has been acted on in tbeiullest manner by this court; especially in the case of Prevost v. Gratz, 6 Wheat. 481, 5 Cond. Rep. 142 ; Hughes v. Edwards, 9 Wheat. 489, 5 Cond. Rep. 648 ; and Willison v. Matthews, 3 Peters 44; and Miller v. M’lntire, 6 Peters 61, 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. 
      
       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. Rep. 640, note.
     
      
       See Belt’s note to the case of Deloraine v. Browne, 3 Bro. Ch. Rep. 640, n. 1; Miller v. M’Intire, 6 Peters 61, 64.
     
      
       See also Beckford v. Wade, 17 Ves. 86; Barney v. Ridgard, 1 Cox. Cas. 145; Blannerhassett v. Day; 1 Ball, and Beatt. Rep. 104; Hardy v. Reeves, 4 Ves. 479; Harrington v. Smith, 1 Bro. Par. Cas. 95.
     