a deed of trust upon the property to the defendant McIntire as sole trustee. This deed was also executed on June 29, 1881, and was of even date with the deed executed by McIntire to Jenison in pursuance of the foreclosure. they had seen a woman who passed years, has no recollection of ever meeting The testimony in this case turns largely upon the existence and identity of Emma Taylor. It is charged in the bill that she is a fictitious person, and that a sister of Mc-self, who was in McIntire's employ five Intire's, whose name was Emma T. McIntire, | was represented and held out by him as Emma Taylor. Certainly, so far as witnesses have sworn to having seen Emma Taylor, they might easily have been led into supposing that his sister was this person. All that we know definitely of Emma Taylor is [46] that from April 1, 1881, *to September 6, 1884, her name appears as grantor or grantee in seventeen different deeds, having an aggregate consideration of some $13,000. Copies of nine of these deeds appear in the record, in all but one of which she is described as of the city of Philadelphia, although all of these deeds, both to and from herself, were executed in Washington and acknowledged before the same magistrate. No letters written by her are produced, and but one addressed to her. This bears date September 19, 1887, and was written by McIntire, asking for her address. The letter seems to have been addressed simply to "Pittsburg, Penn.," on some information of her being there, and to have been returned to the writer. This letter was probably a subterfuge. The transactions in which she appears as a party all seem to have been carried on through McIntire as agent, who collected rents and other moneys, paid taxes, and made repairs on her account. She seems then to have disappeared as suddenly as she originally appeared, and McIntire professes himself entirely unable to find her, or learn of her present whereabouts. This is certainly a feeble and suspicious explanation. In view of the number and magnitude of the transfers to which she was a party, we should have reason to expect that her existence could be established beyond the shadow of a doubt. If she were a resident of Philadelphia, as now claimed, McIntire could hardly have failed to have had correspondence with her, to have known her address, and to have been able to find dozens of her friends, relatives, or neighbors, who could have proved that she was a living person. If she were a resident of Washington during these years, where did she live? In what bank did she keep the money she invested in real estate? Who were her acquaintances and why did she vanish so suddenly after these large transactions? She could scarcely have failed to leave a correspondent here, and that correspondent could scarcely have failed to be McIntire himself. It is incredible that a woman so well off and so alert in matters of business should have disappeared at the moment when her presence was indispensable, and left no trace behind her. What have we in lieu of what we might [47] naturally have expected? A few witnesses who swear they saw her once, and saw her under circumstances which indicated that 173 U. S. U. S., Book 43. 39 In addition to this most indefinite testimony, we have only the testimony of Edwin A. McIntire, Martha McIntire and Emma T. McIntire, two of whom are parties to this suit and strongly interested in the result. Emma T. Mclntire testifies that she was never called Emma Taylor, and that her middle name was not Taylor, and that she never executed any of the deeds purporting to have been signed by Emma Taylor. Neither she nor her sister seems to have met her more than three or four times. It further ap- [48] pears that all the deeds to Emma Taylor, even from McIntire himself, carried to the recorder's office for record, were returned to McIntire, though this was denied by him, and that rents due to Emma Taylor were all paid to him. It seems, too, that he paid all the taxes upon her property, though he swears he has no recollection of doing so. We give but little weight to the certificate of the magistrate who was not sworn as witness, that Emma Taylor appeared before him and acknowledged the deeds to which her name was appended as grantor, since it would have been practically easy for McIntire to represent another person as Emma Taylor. The testimony of McIntire himself with regard to Emma Taylor is extremely unsatisfactory. Notwithstanding the number and magnitude of the transactions in which he took part and acted as her agent, he has no explanation of the manner in which the 609 consideration for these deeds was paid or received by her, the bank in which it was deposited, or from which it was drawn, and is unable to produce a single check or letter signed with her name. His memory is excellent where he cannot be contradicted and as to unimportant details, but fails him utterly as to the leading facts of the transactions. While for three years his relations with her must have been constant and confidential, collecting and disbursing moneys for her, and looking out for real-estate investments, yet he produces no account with her, and professes to have completely forgotten that he ever collected rent for her at all. One Alfred Brown, who bought property from her in May, 1883, gave $200 in cash and twelve notes of $75 each, payable at intervals of three months, the last maturing in May, 1886, swears that he paid every one of them as they fell due to McIntire personally; yet McIntire swears he has no recollection of collecting these notes, and that Emma disappeared from Washington about 1884. He tells us that she was a woman who was constantly looking out for bargains in real estate, yet the records show that all her transactions were with him or through his agency, [49] and in every case in which she became the purchaser of lands the title ultimately became vested in his sister Martha. In this connection it is a suspicious circumstance that whenever she made a conveyance the deed was not usually recorded for years afterwards, when the necessity of making a complete chain of title required it to be put on file. Upon the other hand, the deeds made to her as grantee were immediately placed on record. None of the parties to whom she gave or from whom she received deeds of property ever met her, nor did the clerk in McIntire's office during these years recollect that he had ever seen her. He accounts for his inability to produce letters, receipts, accounts, or written evidences of any sort, showing his transactions with her, by an utterly improbable story of a fire in his office, which seems to have conveniently consumed all these documents, including a large ledger, in which her accounts were contained, and to have spared everything else, leaving no mark of fire or even the stain of smoke upon documents showing his relation to others. He professes to have thought that Emma Taylor was engaged in one of the departments, because she came down F street after the hour the departments would close, but never asked her in what department she was employed, and the compiler of the "Blue Book" swears that no such person was in the employ of the government in Washington at that time. All the witnesses who testified to having seen a person of that name fixed the time as prior to the date of her first deed, April 1, 1881; and not one of them, except the McIntires, is able to identify her as the Emma Taylor who signed the deeds in question. There is strong evidence tending to establish the identity of Emma Taylor and Emma T. McIntire. A niece of McIntire's swears that she always understood that the initial in the name of Emma T. McIntire stood for Taylor, and that she was always called Emma Taylor to distinguish her from witness's sister Emma V. McIntire. This witness is corroborated by the production of the family Bible, from which it appears that Emma T. McIntire's father was named Edwin Taylor McIntire. Her own explanation, that her middle initial stood *for Tinsey Ush [50] or Tots-a pet name given her in infancy by her father-does not seem plausible in the face of this testimony. In addition to this, a large number of documents, signed both by Emma Taylor and Emma T. McIntire, were introduced in evidence for other purposes, and a comparison of the signatures shows a resemblance between some of them which is difficult to account for, except upon the theory that they were written by the same person, although the later ones signed by Emma Taylor show an evident attempt to disguise her hand. But it is useless to pursue this subject further. The testimony of the three McIntires is too full of contradictions and absurdities to be given any weight. While under certain circumstances the other testimony for the defendant might be sufficient to prove that there was such a person as Emma Taylor, when considered with reference to what we have a right to expect in a case of this kind, it falls far short of it, and when read in connection with plaintiff's testimony upon the same point, we are left in no doubt that Emma Taylor was a clumsy fabrication. If the person put forward by McIntire to personate her were not his own sister, it was someone whom he used for that purpose. Under whatever view we take we are satisfied that Emma Taylor was a creation of Mclntire's brain, born of the supposed necessities of his case, and bolstered up by the false testimony of himself and his sisters. Stat nominis umbra. The subsequent proceedings in the case show a consummation of the fraud by which the property was ultimately vested in Martha McIntire. The deed of trust given by Jenison to Emma Taylor was never formally foreclosed. It seems that McIntire had promised Jenison that he would try and find a purchaser of the property before the note fell due on June 29, 1882, so that he might get back a part of the $450 loaned to Pryor, none of which he had received; but professed himself unable to do so, and so informed Jenison, a mun of perfect integrity but of little experience and much unwisdom in business methods, who seems to have had entire confidence in him, and on April 13, 1882, addressed him a note, in which he stated that he was not in a condition to car- [51) ry the property; that he should doubtless have to submit to a sacrifice by a forced sale, and requested him to advertise and do the best he could in its disposition. Considering that the property was worth from $1,800 to $2,400, when the mortgage to Emma Taylor was only $425, the interest on which was less than $40 per year, while the Pryors were paying $6 a month rent, it would appear that Jenison was completely hoodwinked as to its actual value. After some futile efforts to induce McIn him as agent in a prior transaction for the same principal, and present to his mind at the time he is acting as such agent. Much more is this the case where the fraud is committed by the agent himself in obtaining the title to the property for the benefit of his principal. But, further than this, we have little doubt that the property was really pur tire to put the property up at auction, he The title remained of record in Emma Taylor until May 31, 1884, when she made a warranty deed to the defendant Martha McIntire for the expressed consideration of $2,500. Subsequently, and on September 27, 1887, Jenison and wife made a quitclaim deed, apparently of further assurance, to Martha McIntire, for a consideration of $100, paid by the check of Edwin A. McIntire. The answer avers this deed to have been made to cover and cure a defect in the deed from Jenison to Taylor, but on its face it purported to pass to the grantee, Martha McIntire, all claims for drawback or rebate [52] on account of special taxes upon the property, and it is probable that this was its main object. We do not care to discuss the question whether Martha McIntire was a bona fide purchaser of this property. So far as it turns upon her ability to pay the $2,500 named as a consideration, it is at least doubtful. So far as it turns upon her actual payment of this consideration, it is more than doubtful. If Emma Taylor were a fictitious person, and the deed from her a forgery, the title of Martha McIntire falls to the ground, except so far as it depends upon the quitclaim deed of Jenison to her of September 27, 1887, which it is not improbable was procured by Edwin A. McIntire for the very purpose of giving a semblance of title in case Emma Taylor were eliminated from the case. But whatever was done by Martha McIntire to this property, whatever title she acquired was through the agency of her brother, and she is as chargeable with his frauds as if she had committed them personally. United States v. State Bank, 96 U. S. 30 [24: 647]; Griswold v. Haven, 25 N. Y. 595 [82 Am. Dec. 380]; Reynolds v. Witte, 13 S. C. 5 [36 Am. Rep. 678]. It was held by this court in the case of The Distilled Spirits, 11 Wall. 356 [20: 167], that the 1ule that notice of fraud to an agent is notice to the principal applies, not only to knowledge acquired by the agent in the particular transaction, but to knowledge acquired by While Martha McIntire signed the contract for the construction of the house upon these lands, the testimony of the contractors shows that they supposed they were doing the work for McIntire himself; that they had no dealings with Martha; that they were paid by checks signed by McIntire himself, although she came down and looked at the houses, and seemed to be pleased with them. t We agree with the court of appeals that in view of their strong pecuniary interest in the case, the improbability of many of thei [53] statements, the obvious fabrication of the Emma Taylor ry, and the manifest servience of the sisters to their brother's schemes, no conâdence whatever ra be placed in the stimony of either member of the family. This conviction is strengthened by a cirevrtance appearing in tre testimony, although not directly relevant to the issue, that there was another sister, Sarah I. McIntire, who died in Philadelphia, January 10, 1881, leaving a deposit of $1,196.60 in the Philadelphia Savings Fund Society. To obtain this money a power of attorney, bearing date April 19, 1881, was prepared by McIntire, purporting to be signed by Sarah I. McIntire, though she had been dead three months, and acknowledged before a notary public in Washington. It was also signed by McIntire as a subscribing witness, and by virtue of its authority Martha McIntire drew the money from the bank. 2. 'The question of laches only remains to be considered. The sale was made under the foreclosure of the Jenison mortgage, June 17, 1881. The bill was filed October 21, 1890, a delay of nine years and four months. Upon the theory of the plaintiff, however,and it is upon her allegations and proofs that the question of laches must be determined,— the sale was made in her interest. The rent paid by her was to be applied by McIntire toward the extinguishment of the Jenison mortgage, and there was nothing definite to apprise her to the contrary until the fall of 1886, when she saw the contractors beginning to build, and notified them that the property belonged to her, and not to McIntire. But four years elapsed from this time and the property is not shown to have greatly increased in value except by the improvements, which were allowed to the defendants upon final decree. We have a right to consider in this connection that the plaintiff is an ignorant colored woman; that she has been wheedled out of her property by an audacious fraud committed by one in whom she placed entire confidence and who assumed to act as her agent; that this agent procured the title to the property to be taken in his own interest, for little more than a nominal sum, by the false personation of Emma Taylor; that the prop [84]erty is still controlled and probably owned by himself; that the position of the property and of the parties to the suit has not materially changed during the time the plaintiff has been in default, nor the property shown to have rapidly risen in value, and that the rights of no bona fide purchaser have intervened. We have no desire to qualify in any way the long line of cases in this court, too numerous even for citation, in which we have held that where the fraud is constructive, or is proved by inconclusive testimony, or by evidence falling short of conviction, and the property has greatly increased in value, great diligence will be required in the assertion of the plaintiff's rights. But these were all cases either of bills to establish a trust, to open settled accounts, bills not involving fraud, or where the fraud was not clearly proved, or where, with knowledge of the facts the fraud had been deliberately acquiesced in, bills to impeach judicial proceedings, or where the property had passed into the hands of persons innocent of the fraud, or with no actual notice that a fraud had been committed. Granting all that may be fairly claimed of these cases, there is another class having a different bearing, in which it has been held that in case of actual fraud a delay even greater than that permitted by the statute of limitations is not fatal to the plaintiff's claim. The leading case is that of Michoud v. Girod, 4 How. 503 [11: 1076], which was a case of actual fraud committed by trustees of real estate against their cestui que trust. A bill filed thirty-six years after the commission of the fraud was held not to have been too late. In that case a purchase by an executor through a third person, of property of the testator, was held to be fraudulent and void, though the sale was at public auction, judicially ordered, and the result of the evidence was that a fair price was paid. Said Mr. Justice Wayne, in delivering the opinion of the court (page 560 [11: 1101]): "In a case of actual fraud, courts of equity give relief after a long lapse of time, much longer than has passed since the executors, in this instance, purchased their testator's estate. In general, length of time is no bar to a trust clearly established to have once existed; and where fraud is imputed and proved, length of time ought not [55] to exclude relief. There is no rule in equity which excludes the consideration of circumstances, and, in a case of actual fraud, we believe no case can be found in the books in which a court of equity has refused to give relief within the lifetime of either of the parties upon whom the fraud is proved, or within thirty years after it has been discovered or becomes known to the party whose rights are affected by it." So, in Prevost v. Gratz, 6 Wheat. 481 [5: 311], it was said by Mr. Justice Story: "It is certainly true that length of time is no bar to a trust clearly established; and in a case where fraud is imputed and proved, length of time ought not, upon principles of eternal justice, to be admitted to repel relief. On the contrary, it would seem that the length of time during which the fraud has been suc cessfully concealed and practised is rather an aggravation of the offense, and calls more loudly upon a court of equity to grant ample and decisive relief." In Baker v. Whiting, 3 Sumn. 475, one Tidd, being the owner of certain land, employed the defendant Whiting as his agent to care for the same, pay all taxes, etc. Whiting allowed the land to be sold for taxes in 1821, and bought it in himself, keeping the plaintiff uninformed of the facts. The bill was filed in 1837 by the heirs of Tidd, who died shortly after his employment of Whiting. In delivering the opinion, Mr. Justice Story remarked: "Then it is said the plaintiffs are barred from any right in equity by the mere lapse of time. But what is more particularly applicable to the present case, twenty years had not elapsed before the filing of the bill; and I apprehend that, in case of a trust of lands, nothing short of the statute period which would bar a legal estate or a right of entry would be permitted to operate in equity as a bar of the equitable estate." In Allore v. Jowell, 94 U. S. 506 [24: 260], which was a bill to cancel a conveyance of land alleged to have been obtained from the grantor a few weeks before her death, when from her condition she was incapable of understanding the nature or effect of the transaction, it was held that a lapse of six years before bringing suit to cancel the conveyance could not avail the defendant, where he [56] had possession of the land, and a reasonable rent therefor was equal to the value of his improvements, and there had been no loss of evidence preventing a full presentation of the case. In Meador v. Norton, 11 Wall. 442 [20: 184], three sisters obtained in 1839, from the governor of California, a tract of land which was approved by the departmental assembly, and possession delivered. Some years after, the husband of one of the sisters, named Bolcoff, suppressed or destroyed this grant, and fabricated a pretended grant to himself, and also certain other papers intended to prove the genuineness of such fabricated grant. Upon these papers the sons of Bolcoff, he having died, obtained a confirmation of their claim to the land, the land commissioners supposing that the fabricated papers were genuine; and upon such decree a patent issued to the claimants. The fabricated character of these papers being discovered, the grantee of the rights of the three sisters brought a suit in equity to have the defendant holding under the patent declared trustee of the legal title, and compel a transfer of that title to him. Held, that the suit, which was begun in 1865, would lie, and that laches could not prevail as a defense where the relief sought was granted on the ground of secret fraud, and it appeared that the suit was commenced a reasonable time after the fraud was discovered. In Connecticut General L. Ins. Co. v. El dredge, 102 U. S. 545 [26: 245], a deed of trust of lands to secure a promissory_note the situation of the parties, the extent of was released without the surrender or payment of the note, and without express authority of the holder. It was held that a subsequent purchaser with notice took the land subject to the equitable rights of such holder. The extent of the delay does not clearly appear in the report, but in the opinion of the court it is said by Mr. Justice Field: "The company, as already stated, must be deemed to have known of the want of power in the trustee to release the propSo in Felix v. Patrick, 145 U. S. 317 [36: erty from the Coburn deed, and it does not lie in its mouth to object that the complain-719], where a bill was filed after a lapse of ant did not sooner seek to set aside the pri- twenty-eight years to impeach a title fraudority of lien thus gained; nor can it aver that ulently acquired through the location of cerhis claim to have the instrument canceled, tain land scrip, and the land was shown to by which this priority was secured, is a stale have increased enormously in value by being [57]one, *when asserted within the period allowed taken within the limits of a city, and to by law, and no rights of third parties as bona have been largely occupied by persons who fide purchasers have intervened to render in- had bought on the strength of the apparent equitable the assertion of his original lien." title, and erected buildings of a permanent was held that the comIn Bowen v. Evans, 2 H. L. Cas. 257, a bill character, it filed to set aside a sale of lands made nearly plainant was barred by laches, but in the "The law fifty years before under a decree, on the opinion of the court it is said: ground of irregularities in the proceedings pronounces the transaction a fraud upon and fraud in the sale, it was held that, in her, but it lacks the element of wickedness the absence of proof of fraud on the part of necessary to constitute moral turpitude. If the purchaser, or that the estate was sold un- there had been a deliberate attempt on his der the value by reason of any corrupt bar- part by knavish practices to beguile or gain, the sale was not impeachable; but in wheedle her out of these lands, we should delivering the opinion Lord Chancellor Cot- have been strongly inclined to afford the tenham observed: "So, when much time has plaintiffs relief at any time during the life elapsed since the transactions complained of, of either of the parties; but as the case there having been parties who were compe- stands at present justice requires only what tent to have complained, the court will not, the law, in the absence of the statutory limupon doubtful or ambiguous evidence, as-itation, would demand,-the repayment of sume a case of fraud, although upon fraud the value of the scrip, with legal interest clearly established no lapse of time will protect the parties to it, or those who claim through them, against the jurisdiction of equity depriving them of the fruits of their plunder." The case of Hammond v. Hopkins, 143 U. S. 224 [36: 134], a leading case in this court, is not to the contrary. In this case two partners owned real estate in common, some of which was used in the partnership business. One died, making the other by his will a trustee for the testator's children, with power of sale of all the real estate, and directing that the business be continued. After carrying on the business for some time the trustee sold the real estate by auction, and bought portions of it in through a third person, and accounted for half of the net proceeds. The transaction was open and known to all the cestuis que trust, and was objected to by none of them. It was held that there was nothing in this to indicate fraud; that the purchase was not absolutely void, but voidable, and might be confirmed by the parties interested, either directly, or by long acquiescence, or by the absence of an election to avoid the conveyance within a reasonable time after the facts came to their knowledge. There was a delay of nearly twenty years in this case. In delivering the opinion the Chief Justice said: "Each case must necessarily be governed by its own circumstances, since, though the lapse [58] of a few years may be sufficient to defeat the action in one case, a longer period may be held requisite in another, dependent upon thereon." In Norris v. Haggin, 136 U. S. 386 [34: Taking the whole case as stat- We do not wish to be understood as holding that the plaintiff, even in a case of actual fraud, may wait an indefinite time, or always so long as the statute of limitations 613 |
