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case,' before the adoption of the statute of Wm. IV., which expressly extends the statute to courts of equity, went so far as to hold that courts of

C. S. 201 ; Mann v. Fairchild, 2 Keyes lingshead's Case, 1 P. Wms. 742; Hovenden (N. Y.), 106; Roosevelt v. Mark, 6 Johns. v. Lord Annesley, 2 Sch. & Lef. 607. In (N. Y.) Ch. 266 ; Clark v. Ford, 8 Keyes Sugar River Bank v. Fairbank, 49 N. H. (N. Y.), 370; Stafford v. Bryan, 3 Wend. 139, BELLOWS, C. J., in commenting upon (N. Y.) 532; McCrea v. Purmort, 16 id. the extent to which a court of equity will 532 ; Spoor v. Wells, 3 Barb. (N. Y.) Ch. go in enforcing statutes of limitations, says: 199; Elmendorf v. Taylor, 10 Wheat. “As a general rule, courts of equity are (U. S.) 152; Sherwood v. Sutton, 5 Mas. bound by a statute of limitations equally (L'. S.) 143 ; Pratt v. Northam, 5 id. 95; with courts of law, and they cannot disreHunt r. Wickliffe, 2 Pet. (U. S.) 201. A gard the plain requirements of such stat plea of the statute of limitations was ute; for that would be to repeal it. Even overruled upon letters produced, assign. when the statute, in terins, applies only ing reasons for declining to pay, and rec- to actions at law, which are enumerated, ommending plaintiff to bring an action, courts of equity act in analogy to it, and as amounting to a sufficient acknowledg. refuse to grant relief in cases coming ment of the debt to take it out of the stat- within its provisions. In the case of exute, upon the authorities, though against ecutors and administrators the limitations principle. Baillie v. Sibbald, 15 Ves. imposed by statutes are more stringently 185; Baillie v. Lord Inchiquin, 1 Esp. enforced than those of the general stat435. Payment of a dividend under a com- utes of limitations, both at law and in mission of bankruptcy against one partner equity; and it has been held that the raises a new assumpsit by the other, de- omission to embody in the former statute priving him of the benefit of the statute of the exceptions contained in the latter indi. limitations. Ex parte Dewdney, 15 Ves. cate the purpose to make the bar of suits 499. Before the statute of 4 Anne, c. 16, against executors and administrators abso§ 19, there were no exceptions in the stat- lute.” See also Atwood v. Rhode Island ute of limitations in this country; and Agricultural Bank, 2 R. I. 191; Walker v. even since that time it has been held Cheever, 39 N. H. 420; Judge of Probate that the saving in that statute is not to be v. Brooks, 5 id. 82; Cutter v. Emery, 37 extended according to equity; for though id. 567 ; Ticknor v. Harris, 14 id. 272; the courts of justice may be shut up (tem. Burdock v. Garrick, L. R. 5 Ch. App. pore guerre), as that no original could 234; McCartee v. Camel, 1 Barb. (N. Y.) be filed, yet the statute continues to run Ch. 455; Flood v. Patteson, 29 Beav. 293; against a demand. Beckford v. Wade, 17 Sibbering v. Balcarras, 3 De G. & Sm. 735; Ves. 93 ; Aubry v. Fortescue, 10 Mod. Downes v. Bullock, 9 H. L. Cas. 1; Wright 206; Hall v. Wybourn. 2 Salk. 420. The v. Vanderplank, 2 K. & J. 1; Mills v. statute of limitations is founded upon the Drewitt, 20 Beav. 632; Portlock v. Gardsoindest principles, and courts of equity ner, 1 Hare, 594. A claim by a creditor, are bound to adopt it where the legal and against a legatee, to have the legacy reequitable title so far correspond, as that funded for payment of the debt, will be the only difference is, that the one must barred, in analogy to the statute of limita. be enforced in this court, the other in a tions, by a lapse of four years from the court of law. MANNERS, C., in Medlicott time when the insolvency of the executor 0. O'Donel, 1 B. & B. 166. The statute was ascertained by a return of nulla bona does not bar a bill of revivor, after a de- to an execution against him. Miller v. cree to account, but it rests in the discre. Mitchell, 1 Bailey (S. C.) Ch. 437. The tion of the conrt to give or refuse relief. statute of Tennessee does not run to bar Egremont v. Hamilton, 1 B. & B. 531; Hol. the recovery of a legacy from the executor,

1 Hovenden v. Annesley, 2 Sch. & Lef. 620.

equity did not adopt the statute merely by analogy of, but in obedience to, the statute ; and so generally did the English courts of equity follow the statute, that the enactment of the statute referred to was regarded as little more than giving a statutory sanction to a well-established rule of those courts. 1

The statute is regarded as a defence, as well in equity as in law, where it confers absolute rights upon the party seeking its benefits. Thus, it would be preposterous to suppose that, where the title to lands has become absolute in a person by an adverse possession of them for the statutory period, a court of equity is not bound to give effect to such title, as well as a court of law; and it may be safely said that, regardless of the question whether the statute is applied in express

in equity, there being no statute of that as applied to titles to land, is, that the State giving a legal reinedy. McDonald v. party should have twenty years, during McDonald, 8 Yerg. (Tenn.) 145. Where, which it should be open to him to assert by statute, the action of assumpsit is lim- his title, and failing to do so a court of ited to three years, and that of debt to six, equity can afford no relief to him; and in a cause of action on which assumpsit or such cases the court acts not by analogy, debt

may be brought will not be barred in but in obedience to those statutes, considthe form of debt under six years; and ering themselves bound thereby in all cases where a bill in equity is founded on the of legal titles and legal demands; and wher. same cause of action, the limitation will ever the legislature has limited a period be to six years.

Burdoine v. Shelton, 10 for law proceedings, courts of equity will Yerg. (Tenn.) 41. Where a party attempts deem themselves equally restricted in anal. to enforce in equity a claim, on which ogous cases. Hovenden v. Lord Annesley, debt or assumpsit would lie, if he had 2 Sch. & Lef. 630; Smith v. Clay, Amb. sued at law, the limitation of the former 645. So, with respect to the operation of action being three years, and that of the the statute of limitations upon cases of latter six years, it will be considered, in trusts in equity, the distinction is, if the respect to the statute of limitations, as an trust be constituted by act of the parties, action of debt. Bedford v. Brady, 10 Yerg. the possession of the trustee is the posses(Tenn.) 350. Twenty years' adverse pos- sion of the cestui que trust, and no length session succeeding an actual or virtual dis- of such possession will bar; but if a party seisin bars a suit in equity as well as at is to be constituted a trustee by the decree law, and three years added to such adverse of a court of equity, founded on fraud, or possession, after infants, who hold a claim the like, his possession is adverse, and the to land in controversy, have arrived at full statute of limitations will run from the age, bars their claim. Gates v. Jacob, 1 time that the circumstances of the fraud B. Mon. (Ky.) 306 ; Dexter v. Arnold, 3 were discovered. Hollingshead's Case, 1 P. Sum. (U. S.) 152; Miller v. MeIntyre, Wms. 742 ; Lockey v. Lockey, Prec. Ch. 6 Pet. (U. S.) 61 ; Coulson v. Walton, 9 518; Booth v. Lord Warrington, 1 Bro. id. 62; Lewis v. Marshall, 5 id. 470; Bow. P. C. 455; Weston v. Cartwright, Sel. Ch. man v. Wathen, 1 How. (U. S.) 189; Cas. 34 ; South Sea Co. v. Wymondsell, 3 Rhode Island v. Massachusetts, 15 Pet. P. Wms. 158 ; Bicknell v. Gough, 3 Atk. (U.S.) 233 ; Peyton v. Stith, 5 id. 485; 538. Every new right of action in equity Bank v. Daniel, 12 id. 33 ; Hayman v. must be acted upon within twenty years Keally, 3 Cranch (U. S. C. C.), 325. after it accrues. Smith v. Clay, Amb. 645;

1 Cholmondeley v. Clinton, 2 Jac. & W. Floyer v. Lavington, 1 P. Wms. 270 ; De56; Hollingshead's Case, 1 P. Wms. 743; lorain v. Brown, 3 Bro. C. C. 633 ; BeckEdsell v. Buchanan, 2 Ves. 83; South Sea ford v. Close, id. 644; Hercy v. Dinwoody, Co. v. Wymondsell, 3 P. Wms. 143. The 4 id. 257. true meaning of the statute of limitations,

terms to courts of equity, it is in all cases, except where relief is sought on the ground of fraud, bound thereby, when the statute has conferred absolute rights upon a person, or when its jurisdiction over the subjectmatter is only concurrent with that of courts of law. The principal reasons for this analogous application of the statute in courts of equity are, that the evils resulting from great delay in enforcing equitable rights are equally as great as those resulting from delay in enforcing legal rights, and also because, unless courts of equity acted in analogy to these statutes in cases where a party has a choice of forums, the result would be that the effect and real end of the statute would be eluded. But in cases where relief is sought upon the ground of fraud

1 Phalen v. Clark, 19 Conn. 420. This obedience to this rule a bill claiming title doctrine is adopted in the United States to, and praying for the possession of, lands courts, and in those courts it is held that, will be dismissed, if the complainant and in all that class of cases in which courts those through whom he claims have taken of equity have concurrent jurisdiction no steps to assert their rights for thirty with courts of law, they are bound by years ; the land being all that time in the general statutes of limitation, in the same adverse possession of their defendants and manner as courts of law, and act in obed- their ancestor. The claim is barred by ience to the statute, and not merely in twenty years' adverse possession. Pindell analogy to it. Bank of United States v. v. Mulliken, 1 Black (U. S.), 585. So, too, Daniel, 12 Pet. (U. S.) 32; Sherwood v. within the peculiar jurisdiction of courts Sutton, 5 Mas. (U. S.) 143; Pratt v. of equity, those courts, although not in Northam, id. 95. See also Union Bank strictness bound by statutes of limitation, of Louisiana v. Stafford, 12 How. (U. S.) act by analogy to it, and, in a proper case, 327. The statute is a bar to an equitable apply, as an equitable rule, the limitation right, when at law it would have operated prescribed by the statute. Sherwood v. against a grant. Miller v. McIntyre, 6 Sutton, 5 Mas. (U. 8. C. C.) 143 ; Pratt Pet. (U. S.) 61; affirming s. C., 1 McLean v. Northam, id. 95 ; Baker v. Biddle, (U. S. C. C.), 85. So, too, they are applied Baldw. (U. S. C. C.) 394. See also Union by conrts of equity, in all cases where at Bank of Louisiana v. Stafford, 12 How. law they might be ploaded. Coulson v. (U. S.) 327. The power conferred by the Walton, 9 Pet. (U. S.) 62. Effect will be statute laws of some of the States, upon given to the statutes of limitations in courts of probate, to direct a sale of the equity as well as in law, and as well where real estate of an intestate for the payment the origin of the conflicting titles is ad- of debts, must be exercised within a reaVerse as in other cases. Miller v. McIn- sonable time after the death of the intes. tyre, 6 Pet. (U. S.) 61. Thus, where an tate; and gross neglect or delay on the actual adverse possession has continued part of the creditors for an unreasonable for twenty years, it constitutes a complete time ought to be held to be a waiver or bar in equity, wherever the same pos. extinguishment of it. Although this power session would operate at law to bar an is not within the purview of the statute of ejectment. A court of equity considers an limitations, it is within its equity; and by equitable claim to land as barred, when analogy to the cases where a limitation the right of entry is lost. The right to has been applied to other rights, the reafile a bill does not continue beyond that sonable period within which this power time, until the time for bringing a writ of may be exercised ought to be limited to right has passed. Elmendorf v. Taylor, the same period which regulates rights 10 Wheat. (U. S.) 152; Hunt v. Wickliffe, of entry. Ricard v. Williams, 7 Wheat. 2 Pet. (U. 8.) 201; Peyton v. Stith, 5 id. (U. S.) 59. 485; Lewis v. Marshall, id. 470; Rhode 2 Roosevelt v. Marks, 6 Johns. (N. Y.) Island v. Massachusetts, 15 id. 233. In Ch. 266; Troup v. Smith, 20 Johns. (N. Y.)


on the part of the defendant, the courts, in a proper case, depart from this rule, and will give relief, unless the plaintiff has been guilty of unreasonable laches in seeking his remedy in equity.1

In an English case, the plaintiff brought a bill in equity to recover a large sum of money which he had been induced to pay to the defendant under fraudulent representations from him that he had paid a large sum of money to bring about a marriage between the plaintiff and his wife. The marriage took effect, and the plaintiff, led by the continuous misrepresentations of the defendant, paid to him the money stipulated. Nine years after the money had been paid the original fraud and subsequent management to delude the plaintiff was discovered, and then it was ascertained that the defendant uot only never liad paid, but also that he never was bound to pay, a farthing on account of the marriage. To the bill the defendant set up the statute of limitations, and the questions propounded for argument were : First, whether an action at law could have been maintained to recover damages for the fraud ; second, if it could, at what time did the cause of action accrue ; and, third, whether, supposing the fraud had not been discovered until after the expiration of six years from the accruing of the cause of action, a court of equity, after that time, could give relief.'

33; Elmendorf v. Taylor, 10 Wheat. (U. S.) and sound doctrine, in a court of equity;" 152.

and that courts of equity are perfectly 1 Evans v. Bacon, 99 Mass. 213. right in saying "that a party cannot in

2 Booth v. Warrington, 1 Bro. P. C. good conscience avail himself of the stat. 445.

ute, when by his own fraud he had pre3 This case has been followed by nu. vented the other party from coming to a merous cases involving the same question. knowledge of his rights." In the case of Sherwood v. Sutton, 5 Mas. (U. S.) 143. Sherwood v. Sutton, 5 Mas. (U. S.) 143, LORD REDESDALE, in the case of Bond v. the same doctrine is very distinctly and Hopkins, 1 Sch. & Lef. 429, declared that fully recognized, and is said to apply as where a title exists at law and in con- well to cases in which the jurisdiction of science, and the effectual exertion of it at courts of law and equity is concurrent, as law is unconscientiously obstructed, relief to such as are exclusively of equitable cog. should be given in equity. And the same nizance. The Supreme Court of the Unitjudge, in Hovenden v. Lord Annesley, 2 ed States, in Michoud v. Girod, 4 How. Sch. & Lef. 634, says,

“ that the reason (U. S.) 561, in discussing this subject, why the statutes of limitation in case of say: “In a case of actual fraud, we believe the defendant's fraud ought not to prevail no case can be found in the books in which in a court of equity, is, that the conscience a court of equity has refused to give relief of the party, being so affected, he ought in the lifetime of either of the parties not to be allowed to avail himself of the upon whom the fraud is proved." The length of tiine." In Cholmondeley v. First Massachusetts Turnpike Co. r. Tidd, Clinton, 2 Jac. & W. 141, it was held, 3 Mass. 201, was an early and well-conthat, in case of an equitable estate, “the sidered case, and has been noticed and statute of limitations would be a bar approved by many other cases in this where there has been no fraud;" and in country, in which the Chief Justice says: Troup v. Smith's Exrs., 29 Johns. (N. Y.) “If this knowledge is fraudulently con47, SPENCER, C. J., says, in allusion to cealed from the plaintiff by the defendant, the before-mentioned doctrine of LORD we should violate a sound principle of law REDESDALE, “This is very intelligible if we permitted the defendant to avai The court held that the bill was maintainable upon the ground that courts of equity would relieve a party against the consequences of the defendant's fraud, even though the remedy is barred at law. And now, in many of the statutes, express provision is made in favor of parties in cases where the cause of action has been fraudulently concealed, and even in States where no such exception exists it is held that, even at law, the statute does not begin to run until the fraud is discovered.

Fraud, in order to constitute an exception to the statute, must be the fraud of the party setting it up; and the statute of limitations relating to executors, &c., if it can be avoided by any fraud, can only be avoided by a fraud of the executors themselves, and not of third persons, with whom they have no privity. And where an administrator who was charged with fraud had deceased, and his sureties were also dead, the legatees must commence their suit against the representatives of the deceased within the three years provided by the statute. It seems that if fraud is to be set up to a bar of the statute, it must be stated in advance in the bill, so that the fact may be put in issue.?

In New York, it is expressly provided that the statute shall in all cases apply to courts of equity, where that court has concurrent jurisdiction over the subject-matter with courts of law, but not in cases where such courts have exclusive jurisdiction over the subject matter. In cases where relief is sought on the ground of fraud, the relief must be sought within six years from the time of its discovery; and if relief is sought in a case involving a trust which is not cognizable by a court of law, it must be brought within ten years after the cause of action accrued, except that, if the party seeking relief was under any of the disabilities provided for in the statute when the cause of action accrued, the period during which such disability existed is not to be reckoned. The statute of Nevada, which embraces all “ civil actions,” is held to extend to and embrace equitable as well as legal actions, and courts of equity are held to be bound by the statute in all cases equally with courts of law. In Indiana, it is held that the statute providing that actions for relief against fraud shall be brought within six years after the cause of action accrued applies as well to suits in equity as to actions at law. In New York, the courts held that under the statute referred to a suit in equity must be brought within ten years from the time when the right accrued, in all cases where the proceeding is to enforce a right not cognizable at law;® and the same rule ap

himself of his own fraud.” See also, to the 8 See Appendix, New York. same effect, Weller v. Fish, 3 Pick. (Mass.) 4 White v. Sheldon, 4 Nev. 280. 74; Bishop v. Settle, 3 Me. 405; Homer v. 6 Pilcher v. Flinn, 30 Ind. 202. Fish, 1 Piek. (Mass.) 435; and Jones v. 6 White v. Methodist Church, 3 Lans. Conway, 4 Yeates (Penn.), 109, where the (N. Y.) 477 ; Elward v. Delfendorf, 5 same rule was adopted in actions at law. Barb. (N. Y.) 398 ; Lindsay v. Hyatt, 4 See chapter on FRAUD.

Edw. Ch. (N. Y.) 497 ; Spoor v. Wells, 2 Pratt v. Northam, 5 Mas. (U. S.) 95. 3 Barb. Ch. (N. Y.) 199. In England, by

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