If the reader will refer to vol. i. p. 490, he may see how the disabilities here alluded to arose, and affected the case. The doctrine of "adverse possession" is founded on the anxiety of our law to secure quietude of title. It gives every reasonable facility for the assertion of just rights against wrongful possessors of property; but with equal reasonableness fixes a limit to immunity from the consequences of negligent acquiescence under usurpation, considering it, in a word, better policy to protect a person in possession, than to encourage a struggle for it among strangers. Vigilantibus non dormientibus jura subveniunt, is the maxim of the common law, on which also the statute law has often acted, and recently with great effect, by stat. 3 and 4 Will. 4, c. 27, (passed on the 24th July 1833.) By its provisions, many of the most subtle and difficult questions concerning the nature of "possession" are got rid of; and the period of twenty years from the commencement of the rights of possession, fixed as that within which alone an action or suit in equity for the recovery of lands must be brought—unless a party was, when his right accrued, laboring under the disability of infancy, coverture, insanity, or absence beyond seas: in any of which cases an extension of ten years is allowed: but it is expressly provided, that however numerous such disabilities may have been—however long and uninterruptedly they may have lasted—forty years shall be absolutely the limit within which the action or suit must be brought from the time of the right first accruing. If the statute "once begin to run," as the lawyers say, "nothing can stop it." The above constitute some of the boldest and best of the great alterations recently effected in our English system of real property law. A far longer period than the present one was requisite to constitute "adverse possession" at the time mentioned in the text.
[6] Note 6. Page 43.
See post, Chapter V., Preliminary Note.
[7] Note 7. Page 49.
"[Greek: 'Anthropinos]," signifies in this place, (1 Corinth. x. 13,) says a commentator on this memorable passage of Scripture, "such as is suited to the nature and circumstances of man; such as every man may reasonably expect, if he consider the nature of his body and soul, and his situation in the present world."
[8] Note 8. Page 54.
It might be inferred, from a somewhat loose statement in an English law treatise, that in a case like that of Mr. Aubrey—viz. of possession of property in entire ignorance that it belonged to another—a Court of Equity would protect against the rightful owner's claim for the mesne profits. Such, however, is by no means the case. Mr. Titmouse had recovered at law—by the superior strength of his title, and without requiring any assistance whatever from a Court of Equity; the mesne profits, therefore, were absolutely his—and any interference, by a Court of Equity, to deprive him of them, would have been an act of direct spoliation. Such a notion, therefore, is utterly destitute of foundation. If Mr. Titmouse had been compelled to seek the assistance of a Court of Equity in order to prosecute his claim, and had clearly been guilty of negligence or fraud; it is possible that some terms might have been imposed upon him, with reference to the mesne profits to be wrung from his comparatively-speaking innocent opponent—but even then, it is conceived that Equity would be very slow and jealous in exercising such a stretch of power. The Roman law took a different view of the subject, regarding him—qui justas causas habuisset quare bona ad se pertinere existimasset, (Dig. Lib. v. Tit. iii. 1, 20, &c.)—with great leniency, and exempting him from payment of mesne profits accrued previous to the action. According to the law of Scotland, a bonâ fide possessor evicted (i. e. turned out) by a person having a better right, is entitled to retain the fruits or profits (called "violent profits") which he may have reaped or received during his bonâ fide possession. It would seem, however, that this doctrine is based not solely upon the bonâ fide ignorance of the ousted party, but upon the concurring negligence and delay of his victorious opponent.
[9] Note 9. Page 58.