extent and scope of the wrong which had been done him. But he was neither idiot nor lunatic; he had memory, sense, and judgment; a mental capacity of low grade and a lack of independence and will, but yet sufficient ability to understand and comprehend; and that supplemented by the aid and advice of intelligent and competent friends. It is impossible not to see that at this point of time a discovery of the fraud had occurred. I do not understand that the question whether such a discovery has taken place depends upon the mental condition of the party injured, where he has legal capacity to act and to contract, nor upon his freedom from undue influence or ability to resist it. If he has ascertained the facts which constitute the fraud, and so has discovered its existence, the statute begins to run, irrespective of the degree of intelligence possessed by the injured party, and whether he has enough of courage and independence to resist a hostile influence, and assert his rights or not. In either event there has been discovery of the fraud; the right of action has fully accrued, and the statute begins to run.

Soon after the action of Frederick Piper to cancel the deed had been commenced, the defendant, Hoard, seems to have regained his influence and control over him. The defendant induced him to discontinue his action, making a new arrangement, to which the wife was a party, and assuming a new liability as a consideration for the conveyance. This settlement the jury and the court found was itself fraudulent. It indicates a new exertion of undue influence to nullify and avert the grantor's effort for redress. That finding leaves the original fraud unpurged, and the right of action it gave undischarged, but I am unable to see how it could stop the running of the statute of limitations. The law provides for no such disability. We cannot add it to the statute. The new wrong might possibly give a new right of action, but could not suspend the existence of the old one. The cases cited in behalf of the plaintiff do not reach the difficulty. Most of them relate merely to the effect of laches or acquiescence as excused or disarmed by the continued presence of undue influence, and have no relation to the peremptory command of a statute: Sharp v. Leach, 31 Beav. 491; Gowland v. De Faria, 17 Ves. 25; Kerr on Fraud, 301. In one, the question arose over the adverse possession of a slave under a statute of the state; and the actual possession was held not to be adverse, because of a continued undue influence which prevented con

sciousness of any adverse character attending the possession: Oldham v. Oldham, 5 Jones Eq. 89. Here the statute began to run. There was a time when Piper discovered the fraud, when the facts and their character were explained to him, when he was for the moment free from the domination of Hoard and acting in defiance of it, and when he consented to initiate an action to set aside the deed. We cannot justly say that he did not then and there, not only discover, but realize to some extent, the fraud practiced upon him. That set the statute running; and it continued to run, unless we import into it a new disability not among its terms: Code Civ. Proc., sec. 396. We therefore see no answer to the defense of the statute.

It was sufficiently pleaded. The code provides that the right of action is deemed to have accrued when the fraud is discovered, and not sooner: Sec. 382; and the answer pleads that it did not accrue within six years before the commencement of the action. That was enough.

It is claimed, in addition, that the complaint contained a cause of action in the plaintiff's own right, and not derived from her father, and which she asserted in due season after the disability of infancy was ended. That cause of action is said to exist in the false representations made to her mother by Hoard to induce the marriage contract, and which he could be required to make good to the issue of the marriage. But the complaint does not rest upon any such right. That cause of action concedes the validity of the deed to Hoard, and seeks to impose a trust upon the property conveyed by it, and is utterly inconsistent with the allegations of the complaint, which deny wholly the validity of the conveyance and the legal title of Hoard. The suggested cause of action was very properly made the subject of a new suit, which is itself before us on appeal, and should not be further considered here. The judgment should be affirmed, with costs. Judgment affirmed.

UNTIL FRAUD IS DISCOVERED, STATUTE OF LIMITATIONS DOES NOT RUN: Ferris v. Henderson, 41 Am. Dec. 580; Wear v. Skinner, 24 Am. Rep. 517; Hoyle v. Jones, 89 Am. Dec. 273; Munson v. Hallowell, 84 Id. 582, and note; Boyd v. Blankman, 87 Id. 146, and note 163; Adams v. Guerard, 76 Id. 624; Smith v. Fly, 76 Id. 114, note; Manufacturers' Nat. Bank v. Perry, 144 Mass. 313; Vizus v. O'Bannon, 118 Ill. 334; Bohm v. Bohm, 9 Col. 100. Whether the same is true in a court of law, see Snodgrass v. Branch Bank, 60 Am. Dec. 511, note. Where there is fraud in a transaction, the statute of limitations begins to run only upon the discovery of such fraud, or from the time

when a person with ordinary care and diligence could have discovered it. Facts sufficient to put such a person upon inquiry are equivalent to actual knowledge of the fraud: Parker v. Kuhn, 59 Am. Rep. 840; Angell on Limitations, sec. 187; Penobscot R. R. Co. v. Mayo, 24 Am. Rep. 45; Parker v. Kuhn. 21 Neb. 413. In actions for relief in equity in courts of the United States upon the ground of fraud, the statute of limitations does not run until with due diligence the fraud might have been discovered, and this rule is not affected by section 382 of the code of New York, as amended in 1877: Kirby v. Lake Shore etc. R. R. Co., 120 U. S. 130. Courts of equity will not interpose if a party slumbers upon his rights unreasonably after the detection of fraud, or means offered of detection: Angell on Limitations, sec. 190, and cases cited. Action for damages for injury to property by false representations is barred in six years in New York: Miller v. Wood, 41 Hun, 600.

STATUTE OF LIMITATIONS, WHEN IT HAS ONCE COMMENCED TO RUN, CON. TINUES TO DO so: Stevenson's Heirs v. McReary, 51 Am. Dec. 102; Smilie v. Riffle, 44 Id. 156, and note 159; Bensell v. Chancellor, 34 Id. 561. It continues to run regardless of any subsequent disability: Kistler v. Hereth, 39 Am. Rep. 131, and note 134; Nicks v. Martindale, 18 Am. Dec. 647, note 649; Chapin v. Freeland, 56 Am. Rep. 701; Moore v. Armstrong, 36 Am. Dec. 68. When it commences to run in the lifetime of decedent, it will not be suspended by his death: Miller v. Surls, 65 Id. 596; contra and exceptions, see cases cited in note to same. Absence from the state of a holder of a tax deed will not prevent the statute from running in his favor: Beebe v. Doster, 36 Kan. 666. Where it has commenced to run in one state in favor of a possessor of personal property, a removal by him to another state with a longer period of prescription will not revive the cause of action: Brown v. Brown, 48 Am. Dec. 52. The running of the statute is suspended during the absence of the debtor from the state: Armfield v. Moore, 97 N. C. 34. Where the first criminal action against a defendant is dismissed because the indictment did not correspond to the requirements of the statute, and a second indictment is found on the dismissal of the first, the running of the statute of limitations is suspended during the time which elapsed between the finding of the two indictments: Smith v. State, 79 Ala. 21.

PIPER V. HOARD.

[107 NEW YORK, 73.]

THAT CASE IS NOVEL, and not clearly within the limits of any adjudged case, does not of itself warrant the denial of relief to a complainant in equity. FRAUD IS NOT MITIGATED by showing that it consisted of fraudulent representations, made to induce a woman to marry from mercenary motives. LAW OF MARRIAGE as administered by the courts is founded on business principles, in which the utmost good faith is exacted, and the least fraud made a subject of judicial cognizance.

THAT WOMAN WAS TOO READY TO MARRY FROM MERCENARY MOTIVES will not debar her, nor the child of the marriage, from relief based on fraudulent representations made to her to induce her to contract such marriage.

UNDER MARRIAGE SETTLEMENTS, ISSUE take their interests as purchasers under both parents.

ESTOPPEL. Person representing that certain property belonged to one then negotiating a marriage is estopped from denying the truth of such representations, when to do so would disappoint expectations raised thereby. ISSUE OF MARRIAGE BROUGHT ABOUT BY FALSEHOOD AND FRAUD of defendant may call him to account for such fraud, and bind him to make good the thing in the manner in which he represented it, so that it shall be as he represented it to be.

ONE MAY BE CONSTITUTED TRUSTEE, EX MALIFICIO, IN FAVOR OF PERSON NOT IN ESSE, by fraudulent representations, if the latter merely seeks to obtain property which the former holds by virtue of his fraud, and which the latter would be entitled to hold if the representations had been true.

BILL in equity by Caroline C. Piper, daughter of Frederick and Catharine Piper, praying to be declared the owner of a certain farm in the possession of the defendant. The defendant having demurred to the complaint, his demurrer was overruled.

C. D. Adams, for the appellant.

A. M. Beardsly, for the respondent.

By Court, PECKHAM, J. This case comes here upon a demurrer to the plaintiff's complaint, as not stating facts sufficient to constitute a cause of action. The special term overruled the demurrer, and granted defendant leave to answer upon payment of costs. This privilege the defendant refused to avail himself of, and final judgment was duly entered against him. He appealed therefrom to the general term, where the judgment was affirmed, with costs, and leave was again granted him to answer on payment of costs, and again the privilege was refused, when final judgment of affirmance being entered, the defendant appealed to this court.

The complaint develops a curious state of facts. Its material averments are as follows: The plaintiff resides in the city of Utica, and the defendant in Herkimer County. In 1842 one Andrew Piper died, a resident of that county, leaving a will which was duly proved, and by which he left all his property, including the farm in question, to his two sons, James and Frederick, and subject to the limitation in the case of Frederick, that if he should die without issue the portion of the estate devised to him should belong, and was thereby devised, to the brother James and his heirs. James and Frederick took possession of the farm (which consisted of 140 acres in Herkimer County), and continued to own it together until

March 26, 1859, when Frederick conveyed his interest therein to defendant, who had, prior to 1859, married a niece of Frederick. In 1875 Frederick died. After defendant had procured a deed of his interest from Frederick in the farm above mentioned, the defendant went to Utica to see one Catharine Hogel for the purpose of bringing about a marriage between her and Frederick, and thus procuring an heir to him, and defendant persuaded Catharine to go and see Frederick, defendant paying the expenses of the trip. In order to persuade Catharine to marry Frederick, and in the course of his efforts in that direction, and referring to the interest of Frederick in the farm, the defendant falsely and fraudulently represented to her that Frederick had a fine property so left to him that if he married and had an heir the land would go to the heir; that, induced by such statements and representations made to her by the defendant, Catharine did marry Frederick on the eleventh day of April, 1859, the result of which marriage was the birth of the plaintiff within a year thereafter, and she is the only child of such marriage.

In September, 1859, the farm was duly partitioned between James Piper and the defendant, as the grantee of Frederick, by an interchange of deeds conveying the respective parts, and the defendant, since such conveyance, has occupied the part set off to him as the owner thereof, and still occupies and claims to own it. The relief prayed for was, that plaintiff be declared the owner of the portion of the farm set off by partition to the defendant, and that plaintiff be placed in possession of the same. The judgments appealed from grant such relief, and defendant asks for their reversal while admitting the facts above stated. There was no opinion written by the learned judges at the special or general term, and we have not the benefit of their views upon this question.

The defendant, while confessing that he procurred the fee of the farm (through this marriage), owned by the plaintiff's father, by means of his own fraudulent representations, yet claims that the plaintiff has no right of ac ion against him on that account, because there is a lack of privity between him and plaintiff, and that plaintiff was not induced to any action by reason of his fraud, and sustained no legal damage therefrom, and cannot therefore recover any from him, but must sit by and permit the land once owned by her father to be enjoyed by defendant, although procured by him by means of this fraud.