Sidebilder
PDF
ePub

ute, mere illegality in its consideration will not, affect the rights of a bona fide holder for value. Norris v. Langley, 19 N. H., 423; Converse v. Foster, 32 Vt., 828; Conklin v. Underhill, 3 Scram., 388. The plaintiff in this case was a bona fide purchaser of the draft. At the time of his purchase he had no notice of any equities in the drawer, or in the acceptors. There

was nothing on the face of the instrument to awaken suspicion that it was accommodation paper, or that it had not been regularly and lawfully negotiated. He bought it from bill brokers, after it had been indorsed by the drawer and payee, and also by Carpenter, an apparent indorsee of the payee. That his purchase was not corrupt; that it was perfectly 249*] lawful under the law of *Illinois, can admit of no question. Sherman v. Blackman, 24 Ill., 347; Hemenway v. Cropsey, 37 Ill., 357. And this is the rule everywhere unless the note or bill is declared by statute to be void in its inception.

The plaintiff's in error, therefore, have no cause of complaint. The circuit court gave judgment against them for the sum which the plaintiff had paid for the draft, without interest. The judgment was only too favorable to them. It should have been for the full amount of the acceptance, with interest from the time it fell due, and had the case been brought here by the plaintiffs below we should direct such a judgment. But the present writ presents to us only the assignments of error made by the defendants, and as they are unsustained, we can do no more than affirm the judgment given. The judgment is affirmed.

289*] *J. C. TERRELL and H. TERRELL,

Appts.,

v.

HUGH ALLISON.

(See S. C., 21 Wall., 289–294.)

Writ of assistance, when issued-parties tu mortgage foreclosure.

1. A writ of assistance is an appropriate process to issue from a court of equity, to place a purchaser of mortgaged premises under its decree in possession after he has received the commissioner's or master's deed, as against parties who are bound by the decree, and who refuse to surrender possession pursuant to its direction, or other order of the

court.

2. The owner of property mortgaged at the time suit is brought for the foreclosure of the mortgage or the sale of the mortgaged premises, whether he be the original mortgagor or his successor in interest. is an indispensable party to the suit. A decree, without his being made a party, will not bind him or parties claiming under him, although the latter *Headnotes by Mr. Justice FIELD.

NOTE. Writ of assistance.

Writ of assistance issued by a court of chancery to put purchaser of land sold by judicial process into possession of the same. Hart v. Lindsay, 1 Walker. Ch., 144; Kershaw v. Thompson, 4 Johns. Ch., 609; Garretson v. Cole, 1 H. & J., 370.

It is the appropriate remedy to place the purchaser of the mortgaged premises under a decree of foreclosure in possession after he has obtained the referee's or sheriff's deed. Wolf v. Fleishacker, 5 Cal., 244; Montgomery v. Tutt. 11 Cal., 190; Reynolds v. Harris, 14 Cal., 677; Storch v. Carr, 28 Pa., 135.

may have acquired their interests after suit commenced; and a purchaser of the property at a sale under the decree is not entitled to a writ of assistance to obtain possession of the premises as against him or them.

It is issued when possession is withheld by the

[No. 224.]

Argued Mar. 5, 1875. Decided Mar. 29, 1875.
PPEAL from the Circuit Court of the
United States for the Southern District
of Mississippi.

A

The history and facts of the case are fully stated by the court.

Messrs. P. Phillips and Nugent & Yerger, for appellants:

The answer of the Terrells was not controverted. No attempt was made to show that any one of the averments was untrue. The bona fides of the conveyances was not attacked.

These conveyances showed a title accompanied by possession in Mrs. Kyle, by virtue of a deed executed to her on the 9th of April, 1867, acknowledged on the 11th of April.

It is true that this deed was not recorded un

til Oct. 15, 1868, some months subsequent to the filing of the bill.

The want of registry may have excused the complainant from not making Mrs. Kyle a party when he originally filed his bill. But when, pending the proceeding, the knowledge of it was brought to the complainant, there could be no justification in making a decree conclusive of her rights, without giving an opportunity for their assertion.

The want or registry does not invalidate the conveyance.

McAnulty v. Bingaman, 6 How. (Miss.), 382. Possession is notice, whether the deed under which it is held is recorded or not.

Jenkins v. Bodley, 1 S. & M. Ch., 338; Walker v. Gilbert, 7 S. & M. 456.

The case then shows a decree against Hilburn, the mortgagor, who, long before the filing of the bill, had conveyed all his interest to Mrs. Kyle.

Robertson v. Carson, ante 178.

That Mrs. Kyle, and those claiming under her title, were necessary parties to such a bill, is familiar doctrine.

Madeiras v. Catlett, 7 Mon., 476; Carman v. Watson, 1 How. (Miss.), 333.

In Van Hook v. Throckmorton, 8 Paige, 33, Chancellor Walworth held, that a purchaser under a decree of foreclosure was not entitled to the writ, even as against a person who went into possession, pendente lite, unless that pos session was acquired by permission of one of the parties to the suit.

This coercive writ can only operate against the mortgagor himself, or possibly his tenant. defendant or any one who has come into possession pendente lite. Hellenbeck v. Garner, 20 Wend., 22; Frelinghuysen v. Colden, 4 Paige, 204; Van Hook v. Throckmorton, 8 Paige, 33; McGown v. Wilkins, 1 Paige, 120; Craighton v. Paine, 2 Ala., 158; Cowan v. Sumervalt, 1 G. & J., 511; Planters' Bk. v. Fowlkes, 4 Sneed, 461; Applegate v. Russel. 25 Md., 317; Oliver v. Caton, 2 Md. Ch., 297; Trabue.v. Ingles, 6 B. Mon., 84.

The court will not, however, by such writ, interfere with nor attempt, in cases of doubt, to settle the rights of any party claiming possession by title paramount to that of the mortgagee or other party in whose favor the decree was made or who is not

Trammel v. Simmons, 8 Ala., 272; Ringo v. Binns, 10 Pet., 281.

(No counsel appeared for appellee.)

Mr. Justice Field delivered the opinion of

the court:

This is an appeal from a decree awarding a writ of assistance to put the purchaser in possession of mortgaged property sold under a decree of the court, and to remove the appellants from the premises. The case arose in this wise: In April, 1866, one Vaugh A. Hilburn, a resident of Mississippi, executed to Hugh Allison and others a mortgage upon certain real property situated in that State, to secure the payment of his promissory note of the same date for $12,000, payable in March of the following year. In April, 1867, the mortgagor sold and conveyed the premises for a valuable consideration to one Eliza Kyle, and placed her at the time in possession. In May, 1871, Mrs. Kyle sold and conveyed the property upon like consideration to one Terrell; and he afterwards transferred a part of his interest to his brother, and they are the parties whose removal the decree directed.

In April, 1868, the mortgagees instituted suit in the Circuit Court of the United States for the District of Mississippi, to foreclose the mortgage, or, more accurately speaking, to obtain a decree for the sale of the mortgaged 290*] premises, and the application of the proceeds of the sale to the payment of the amount which might be found due to them on the note secured. In this suit Hilburn and his wife, who had joined with him in execution of the mortgage, were alone made parties. The case proceeded to a final decree confirming a master's report, finding that $2,400 were due the mortgagees, and directing its payment within a designated period, or in default of such payment that the premises be sold by a commissioner appointed for that purpose, at auction, to the highest bidder; that a deed be executed to the purchaser and that he be placed in possession of the premises. The payment directed not being made, the premises were sold by the commissioner and purchased by Hugh Allison, one of the mortgagees; the sale was confirmed and a deed executed by the commissioner to the purchaser. The two Terrells then in possession refused to surrender the premises to the purchaser, and he thereupon applied by petition to the court for a writ of assistance, to be issued to the marshal to place him in possession. The court granted the writ, directing the officer to go upon the land and eject the Terrells, and place the purchaser in possession. Subsequently this writ was revoked, and an order was made that the Terrells show cause why the writ should not issue on the petition filed. In response to this order, the Terrells set up the sale and conveyance of

a party to the suit and who was in occupation at the commencement of the action claiming by an independent title. Rogers v. Parrish, 35 Cal. 27; Brown v. Betts, 13 Wend., 29; Birdsall v. Phillips, 17 Wend. 464; Thomas v. Debaum, 1 McCarter (N. J.), 37; Bush v. Fowler, 36 Ill. 33; Gilcreest v. McGill, 37 Ill., 300; Schenck v. Conover, 2 Beas., 220; Clark v. Parkinson, 10 Allen, 133; McComb v. Kankey, 1 Bland, Ch., 163.

The plaintiff in foreclosure suit and the purchaser under decree of foreclosure are entitled to writ of assistance as against mortgagor and those entering under him subsequent to the decree. Skinner V. Beatty, 16 Cal., 158; Montgomery v. Middlemiss, 21 Cal., 103.

the premises to Mrs. Kyle by the mortgagor, and his placing her in its possession before suit commenced, and the subsequent purtime the conveyance from the mortgagor to chase by them from her, producing at the same her, and from her to one of them. And they insisted that Mrs. Kyle was a necessary party to the foreclosure suit, and that the decree directing the sale of the premises was void as to her, and as to them as purchasers under her. No replication to the answer was made, nor does it appear from the record that any question was raised as to the correctness of its statement. The court, it would seem, considered the facts disclosed insufficient, for it dismissed the answer and made a decree that an alias writ of assistance issue. From this decree the appeal is taken. 291*] *A writ of assistance is undoubtedly an appropriate process to issue from a court of equity to place a purchaser of mortgaged premises under its decree in possession after he has received the commissioner's or master's deed, as against parties who are bound by the decree and who refuse to surrender possession pursuant to its direction or other order of the court. from the principle, that the jurisdiction of The power to issue the writ results the court to enforce its decree is co-extensive with its jurisdiction to determine the rights of the parties, and to subject to sale the property mortgaged. It is a rule of that court to do complete justice when that is practicable, not merely by declaring the right, but by affording a remedy for its enjoyment. It does not turn the party to another forum to enforce a right which it has itself established. When, therefore, it decrees the sale of property it perfects the transaction by giving with the deed possession to the purchaser. "If it was to be understood," says Chancellor Kent, "that after a decree and sale of mortgaged premises the mortgagor or other party to the suit, or perhaps those who have been let into the possession by the mortgagor pendente lite, could withhold the possession in defiance of the authority of this court and compel the purchaser to resort to a court of law, I apprehend that the delay and expense and inconvenience of such a course of proceeding would greatly impair the value and diminish the results of sales under a decree." Kershaw v. Thompson, 4 Johns. Ch., 609; Montgomery v. Tutt, 11 Cal., 191.

But the writ of assistance can only issue against parties bound by the decree, which is only saying that the execution cannot exceed the decree which it enforces. And that the owner of the property mortgaged, which is directed to *be sold, can only be bound [*292 when he has had notice of the proceedings for its sale, if he acquired his interest previous to their institution, is too obvious to require either argument or authority. It is a rule

If the writ is improperly issued or executed, court granting it can set it aside on summary motion and restore possession. Skinner v. Beatty, 16 Cal., 150: Chamberlain v. Coles, 35 N, Y., 477.

In cases of foreclosure of mortgage on refusal of the party in possession to deliver up the premises after being shown the deed and a certified copy of the order confirming the sale, this writ will issue. Application for the writ must be to the court for an order that the writ issue. The application may

be ex parte. Lynde v. O'Donnell, 21 How., Pr., 34; S. C., 12 Abb. Pr.. 286; Valentine v. Teller, 1 Hop., 422; Kershaw v. Thompson, 4 Johns. Ch., 609; New York L. Ins. & T. Co. v. Rand, 8 How., 35, 352.

old as the law, that no man shall be condemned in his rights of property, as well as in his rights of person, without his day in court; that is, without being duly cited to answer respecting them, and being heard or having opportunity of being heard thereon.

Under the old theory of mortgages, when they were treated as conveyances, the property passed to the mortgagee upon condition that it should revert to the mortgagor if the obligation, for the security of which it was executed, was performed; otherwise that the mortgagee's interest should become absolute. The mortgage was in terms the conveyance of a conditional estate, which became absolute upon breach of the condition. But courts of equity at an early day, looking beyond the terms of the instrument to the real character of the transaction, as one of security and not of purchase, interfered and gave to the mortgagor a right to redeem the property for the forfeiture following the breach, upon discharge of the debt secured, or other obligation, within a reasonable period. With this equitable right of redemption in the mortgagor a corresponding right in the mortgagee to insist upon the discharge of the debt, or other obligation secured, within a reasonable time, or a relinquishment of the right to redeem, was recognized by those courts. The mortgagee could, therefore, bring his suit to foreclose the equity of redemption, unless the debt or other obligation was discharged within a reasonable time. To such a proceeding the holder of the equity of redemption was an essential party, for it was his right that was to be affected. His equity of redemption was regarded as the real and beneficial estate in the land; it was subject to transfer by him, and to seizure and sale on judicial process against him. If it were transferred to another, such other party stood in his shoes and was equally entitled to be heard before his right could be cut off. It was certainly possible for him to show that the mortgage was satisfied, or his liability 293*] *released, or that in some other way the suit could not be maintained. The holder of the equity of redemption was, therefore, an indispensable party to a valid foreclosure.

The old common law doctrine of mortgages does not now generally prevail in the several States of the Union. In most of them the mortgage is not regarded as a conveyance, but is treated as a mere lien or incumbrance upon the property as security for the payment of a debt, or the performance of some other pecuniary obligation. But the owner of the property, whether the original mortgagor or his successor in interest, has the same right to be heard respecting the existence of the debt or other obligation alleged before the property can be sold, which at common law the owner of the equity of redemption had to be heard before the foreclosure of his equity could be decreed. See Goodenow v. Ewer, 16 Cal., 466, 467.

Applying these views to the present case, it is evident that the learned judge of the court below erred. Mrs. Kyle purchased the premises mortgaged before the institution of the suit for the sale of the property and was placed in their possession. She was, therefore, an indispensable party to that suit, and was not bound by the decree rendered in her absence. The two Terrells took, by their purchase, what

ever rights she possessed; if she was not bound by the decree, neither are they bound. They stand in her shoes and have all the rights and equities with respect to the property which she possessed. The writ of assistance could not be executed against her or against them claiming under her, her rights not having been affected by the decree. A writ of assistance can only issue against parties to the proceedings, and parties entering into possession under them after suit commenced, pendente lite. Frelinghuysen v. Colden, 4 Paige, 204; Van Hook v. Throckmorton, 8 Paice, 33; Reed v. Marble, 10 Paige, 409.

It is true that the two Terrells purchased the premises after suit brought for their sale, but not from a party to such suit, or from anyone who had acquired their interest subsequent to its commencement. They do not come, therefore, *within the meaning of the [*294 rule which makes the decree bind parties purchasing pendente lite.

The decree awarding the writ must, therefore, be reversed, and the clause remanded to the court below with directions to dismiss the petition of the purchaser.

JOHN F. BAILEY, Assignee of Benjamin Glover, a Bankrupt, Appt.,

v.

NATHANIEL B. GLOVER, Elenora Glover, and Hugh Weir.

(See S. C., 21 Wall., 342-350.) Bankrupt Law, policy of-limitations of actions against assignees-in cases of fraud-at law and in equity.

*1. The policy of the Bankrupt Law is speedy as well as equal distribution of the bankrupt's assets among his creditors, and the one is almost as important as the other. The delays in the inferior courts are commented on.

[ocr errors]

2. Hence the clause limiting the commencement of actions by and against the assignee to two years after the right of action accrues, applies to all judicial contests between the assignee and any person whose interest is adverse to his.

suits at law or in equity, we are of opinion that the 3. But though this clause in terms includes all general principle applies here, that where the action is intended to obtain redress against a fraud concealed by the party, or which from its nature remains secret, the bar does not commence to run until the fraud is discovered.

4. And we think this doctrine is equally applicable on principle and authority to suits at law as well as in equity.

[No. 225.]

Argued Mar. 5, 1875. Decided Mar. 29, 1875.

Aed States for the Southern District of Alabama.

PPEAL from the Circuit Court of the Unit

The case is fully stated by the court.
Mr. P. Phillips, for appellant:
The demurrer admits:

1. That the defendants hold the property in fraud of the creditors.

2. That they so concealed the fraud that the assignee only came to the knowledge of it within a year from filing the bill.

The question then is, whether the 2d section of the Bankrupt Act protects persons fraudulently obtaining property from the bankrupt, *Headnotes by Mr. Justice MILLER.

[blocks in formation]

Mr. Justice Miller delivered the opinion of the court:

in the enjoyment of the fruits of their fraud, if they are able to conceal from the assignee the knowledge of their fraud for two years. This was a bill in chancery, brought by the The 2d section is a transcript of the 8th sec- assignee of Benjamin Glover, a bankrupt, to tion of the Bankrupt Act of 1841; and the pre-set aside as fraudulent and void, conveyances of cise question was decided by Judge Curtis in the case of Carr v. Hilton, 1 Curt., 237, where it was held that, long before the statute was enacted, the same words in Statutes of Limitation had received a construction, both in England and America, at law and in equity, and in courts of the United States as well as in other

tribunals.

"The action does not accrue while the fraud is concealed."

Among the cases cited by Judge Curtis are: First Mass. Turnpike Corp. v. Field, 3 Mass., 201; Homer v. Fish, 1 Pick., 435; Welles v. Fish, 3 Pick., 74; Sherwood v. Sutton, 5 Mason, 143; Mitchell v. Thompson, 1 McLean, 96.

The language of Parson, Ch. J., in the first case cited, is very emphatic: "If this knowledge is fraudulently concealed by defendant, we should violate a sound rule if we permitted him to avail himself of his own fraud."

In Sherwood v. Sutton, supra, Justice Story held, that "Every statute is to be expounded reasonably, so as to suppress and not to extend the mischief it was designed to cure. The Statute of Limitations ought not to be construed so as to become an instrument to encourage fraud, if it admits of any other reasonable interpretation; and cases of fraud, therefore, form an implied exception, to be acted on by courts of law and equity according to the nature of their respective jurisdictions. Such, it seems to me, is the reason on which the exception is built, and not merely that there is an equity binding upon the conscience of the party which the statute does not reach or control."

"The bar of the statute may also be avoided by proof of fraud committed under such circumstances as to conceal from the plaintiff all knowledge of the fraud, and thus prevent him from asserting his right until a period beyond the time limited by the statute."

Greenl. Ev., § 448.

"Nevertheless, the prevailing rule in this country prevents the statute from beginning to run until the fraud is discovered by the plaintiff." 2 Pars., p. 378.

Mr. S. J. Cumming, for appellees: The bill attempts to take the case out of the statute by alleging that the fraud was not discovered within two years before the filing thereof. The answer to this is twofold:

First. That complainant does not, by the allegations of his bill, bring the case within the exception to the ordinary Statute of Lim

itations.

Ang., Lim. sec. 25-31; Kane. v. Bloodgood, 7 Johns. Ch., 122; Bank of U. S. v. Daniel, 12 Pet., 56; Moore v. Greene, 19 How., 69, 15 L. ed., 533; Harwood v. Railroad Co., 17 Wall., 78, 21 L. ed., 558; Buckner v. Calcote, 28 Miss.. 595; Stearns v. Page, 7 How., 819; Carr v. Hilton, 1 Curt., 390.

Second. This statute is imperative, admitting of no exceptions as to any tribunals, and consequently sets aside the rule invoked, as to bankruptcy cases under the Act.

See, 4th par, of § 2 of the Act, and the cases referred to under the first head of this brief.

real estate by the bankrupt to defendants. Their demurrer to complainant's bill was sustained, because the suit was not brought within two years from the appointment of the assignee. This appeal is taken from the decree of the court dismissing the bill, and the sole question here is, whether, on the case made by the bill, this decision of the circuit court was right.

The bill makes a very clear case of fraudulent conspiracy to defraud the only creditor of the bankrupt named in the petition. The mode of perpetrating this fraud was by conveying all his property, of which the bankrupt possessed a large amount, beyond what was necessary to pay his debts, to Hugh Weir, his father-in-law, Nathaniel Glover, his son, and Elenora Glover, his wife.

These conveyances were made without consideration, and with intent to take the benefit of the Bankrupt Law, which he did very soon after these transactions and procured his discharge.

At that time he was indebted to John A. Winston & Co. in the sum of $10,000 or $12,000, for which judgment had been obtained against him, and his only purpose was to evade the payment of this debt. The bill further alleges that said Benjamin Glover, the bankrupt, and said Elenora Glover and Nathaniel Glover and Hugh Weir, kept secret their said fraudulent acts, and endeavored to conceal them from the knowledge of the assignee and of the said John A. Winston & Co., whereby they were prevented from obtaining any sufficient knowledge or information thereof, until within the last two years, and even up to the present time they have not been able to obtain full and particular information as to the fraudulent disposition made by the said Benjamin of a large part of his property. This bill was filed January 20, 1873; the complainant was appointed assignee December 1, 1869; and the bankrupt received his discharge April 11, 1870. W. Jones, surviving partner of John A. Winston & Co., in December, 1871, filed a petition in the district court against the bankrupt, in order to have his discharge set aside for this fraud; but before process could be served on Glover, he died. These are the material allegations of the bill, and if true the whole scheme was a gross fraud, concealed by the defendants from the knowledge of the assignee and from Winston & Co., against whom the fraud was perpetrated. It also shows that this suit was brought three years and a few weeks after the complainant became vested with the rights of an assignee in bankruptcy in the case.

The 2d section of the Bankrupt Act reads as follows:

"The circuit court shall have concurrent jurisdiction of all suits at law or in equity, brought by the assignee against the person claiming an adverse interest; or by such person against the assignee, touching the property of the bankrupt transferable to or vested in the assignee; but no suit at law or in equity shall in any case be maintainable by or against such assignee, or by or against any person claiming

an adverse interest touching the property or rights of property aforesaid in any court whatsoever, unless the same shall be brought within two years from the time of the cause of action accrued for or against such assignee."

charged, and we close the door to all litigation not commenced before it has elapsed. But appellant relies in this court upon another proposition which has been very often applied by the courts under proper circumstances, in mitigation of the strict letter of general statutes of limitation, namely: that when the object of the suit is to obtain relief against a fraud, the bar of the statute does not commence to run until the fraud is discovered or becomes known to the party injured by it.

Counsel for appellant argues that this provision of the statute (14 Stat. at L., 526) has no application to the present case because it is not shown that the defendants have set up or asserted any claim to the property now sought to be recovered adverse to that of the assignee. It is rather difficult to see exactly what is meant This proposition has been incorporated in by this proposition. The suit is brought to be different forms in the statutes of many of the relieved from some supposed claim of right or States, and presented to the courts under sevinterest in the property on the part of the de-eral aspects where there were no such statutes. fendants. If no such claim exists, it does not And while there is unanimity in regard to some stand in the way of complainant, and he does of these aspects, there is not in regard to others. not need the aid of a court of equity to set it aside. If it is intended to argue that until some one asserts in words that he claims a right to property transferred to the assignee by virtue of the Act, which is adverse to the bankrupt, the statute does not begin to run, though such person is in possession of the property, acting as owner, and admitting no other title to it, we think the construction of the proviso entirely too narrow.

This is a Statute of Limitation. It is precisely like other statutes of limitation and applies to all judicial contests between the assignee and other persons touching the property or rights of property of the bankrupt transferable to or vested in the assignee, where the interests are adverse and have so existed for more than two years from the time when the cause of action accrued, for or against the assignee. Such is almost the language in which the provision is expressed in section 5057 of the

Revised Statutes.

It is obviously one of the purposes of the Bankrupt Law, that there should be a speedy disposition of the bankrupt's assets. This is only second in importance to securing equality of distribution. The Act is filled with provisions for quick and summary disposal of questions arising in the progress of the case, with out regard to usual modes of trial attended by some necessary delay. Appeals in some 347*] *instances must be taken within ten days; and provisions are made to facilitate sales of property, compromises of doubtful claims, and generally for the early discharge of the bankrupt and the speedy settlement of his estate. It is a wise policy, and if those who administer the law could be induced to act upon its spirit, would do much to make the statute more acceptable than it is. But in

stead of this, the inferior courts are filled with suits by or against assignees, each of whom as soon as appointed retains an attorney, if property enough comes to his hands to pay one, and then instead of speedy sales, reasonable compromises, and efforts to adjust differences, the estate is wasted in profitless litigation and

the fees of the officers who execute the law.

To prevent this as much as possible, Congress has said to the assignee: you shall commence no suit two years after the cause of action has accrued to you, nor shall you be harassed by suits when the cause of action has accrued more than two years against you. Within that time the estate ought to be nearly settled up, and your functions dis

In suits in equity where relief is sought on the ground of fraud, the authorities are without conflict in support of the doctrine that where the ignorance of the fraud has been produced by affirmative acts of the guilty party in concealing the facts from the other, the statute will not bar relief *provided suit is [*348 brought within proper time after the discovery of the fraud.

We also think that, in suits in equity, the deproposition that where the party injured by the cided weight of authority is in favor of the fraud remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered, though there be of the party committing the fraud to conceal no special circumstances or efforts on the part it from the knowledge of the other party. Sea Co. v. Wymondsell, 3 P. Wms., 143; HovBooth v. Warrington, 4 Bro. P. C., 163; So. enden v. Annesley, 2 Sch. & L., 634; Stearns v. Page, 7 How., 819; Moore v. Greene, 19 How., 69, 15 L. ed., 533; Sherwood v. Sutton, 5 Mas., 143; Snodgrass v. Bk., 25 Ala., 161.

On the question as it arises in actions at law there is in this country a very decided conflict of authority. Many of the courts bold that the rule is sustained in courts of equity only on the ground that these courts are not bound by the mere force of the statute as courts of common law are, but only as they have adopted its principle as expressing their own rule of applying the doctrine of laches in analogous cases. They, therefore, make conealed fraud an exception on purely equitable principles. Troup v. Smith, 20 Johns., 33; Callis v. Waddy, 2 Munf., 511; Miles v. Berry, 1 Hill (S. C.) 296; York v. Bright, 4 Humph., 312.

On the other hand, the English courts and the courts of Connecticut, Massachusetts, Penn

sylvania, and others of great respectability, hold that the doctrine is equally applicable to cases at law. Bree v. Holbech, 2 Doug., 655; Clark v. Haugham, 3 Dowl. & R. 322; Granger V. George, 5 Barn. & C., 149; Turnpike Co. v. Field, 3 Mas., 201; Welles v. Fish, 3 Pick., 75; Jones v. Conoway, 4 Yeates, 109; Rush v. Barr, 401; Mitchell v. Thompson, 1 McLean (C. C.), 1 Watts, 110; Pennock v. Freeman, 1 Watts, 96; Carr v. Hilton, 1 Curtis (C. C.), 230.

As the case before us is a suit in equity, and as the bill contains a distinct allegation that the defendants kept secret and concealed from the parties interested the fraud which is *sought to be redressed, we might rest [*349

« ForrigeFortsett »