uxrrnn srarss v. ensues. 39
circumstances a court of equity ought to presume that the persons
who were cognizant of the facts could, if living, explain them so as to
disprove the charge of fraud. _
It is well settled that possession of land for a long period of time
will raise a presumption of a grant which will be enforced as against
the government, (Mayor v. Horner, `Cowp. 102; Jackson v. ]tIcOall,
10 Johns. 380; Lewisy. San Antonio, 7 Tex. 304; 3 Starkie, 1221;
2 Whart. Ev. § 1343; Roe v. Ireland, 11 East, 280;) and if a grant
is to be presumed by reason of the `lapse of time, when there is no
other evidence of a grant exeeptthat afforded by long possession, it
would seem that, upon similar grounds, the validity of a grant which
is shown to have been actually executed, and under which possession F
has been held for an equally long period of time, should be presumed.
The authorities support the proposition that lapse of time may be a
good defense in equity, independently of any statute of limitations,
and they show that the doctrine rests not alone upon latches; it is
often put upon one or all of the following grounds, namely: First,
that courts of equity must, for the peace of society and upon grounds
of public policy,discourage stale demands by refusing to entertain
them; second, that lapse of time will, if long enough, be regarded as
evidence against the stale claim equal to that of credible witnesses,
and which, being disregarded, would in a majority of cases lead to
unjust judgments; third, that, after the witnesses who had personal
knowledge of the facts have all passed away, it is impossible to as-
certain the facts, and courts of equity will, on this ground, refuse to
undertake such a task.
o · Thus Mr. Justice Sronr says: ‘
"A defense peculiar to courts of equity is founded on the mere lapse of
time and the staleness of the claim, in cases where no statute of limitations di-
rectly covers the case. In such cases courts of equity act sometimes by anal-
ogy to the law, and sometimes act upon their own inherent doctrine of
discouraging, for the peace of society, antiquated demands, by refusing to in-
terfere when there has been gross laches in prosecuting rights, or long and
pp;Ԥasozial>le acquiescence in the assertion of adverse rights." 2St0ry,Eq.
O- .
And in Maxwell v. Kennedy, 8 How. 221, the supreme court of the
United States, in answer to the argument that there was no statute
of limitations applicable to the case at bar, said:
’ _ "Wo think the lapse of time, upon the facts stated in the bill and exhibits,
IS, upon principles of equity, a bar to the relief prayed, without reference to
- the direct bar of a statute of li1nitations."
Again, in Clarke v. Boorman’s E.v’rs, 18 Wall. 509, the same court
said:
"Every principle of justice and fair dealing, of the security of rights long
recognized, of repose of society, and the intelligent administration of justice,
forbids us to enter upon an inquiry into that transaction 40 years after it oc-
curred, when all the parties interested had lived and died without complain