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.1 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.2 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 same effect, Weller v. Fish, 3 Pick. (Mass.) 74; Bishop v. Settle, 3 Me. 405; Homer v. Fish, 1 Pick. (Mass.) 435; and Jones v. Conway, 4 Yeates (Penn.), 109, where the same rule was adopted in actions at law. 1 See chapter on FRAUD. 6 8 See Appendix, New York. White v. Sheldon, 4 Nev. 280. 5 Pilcher v. Flinn, 30 Ind. 202. 6 White v. Methodist Church, 3 Lans. (N. Y.) 477; Elward v. Delfendorf, 5 Barb. (N. Y.) 398; Lindsay v. Hyatt, 4 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 plies in cases where the jurisdiction is concurrent, but the legal remedy is imperfect or inadequate.' Thus, it has been held that this section of the statute applies to an action to redeem a mortgage by a person having a right to redeem, but who was not made a party to the foreclosure proceeding, to actions for a specific performance of a contract, to reform a contract, to subject land to the payment of the testator's debts, to redeem stock or other personal property pledged as collateral for a debt, or indeed to any purely equitable action not involving a question of fraud, in which latter case it comes under the six years' clause, and the code has made no essential change in this respect." 5 6 But, as we have observed, independent of any express statute to that effect, courts of equity adopt the statutes of limitation and apply them in all proper cases, and will refuse relief upon stale demands and claims, even though the statute has not run upon them, except where a reasonable excuse is presented for delay. But when it perceives that the party has equitable rights, and that a court of law might have proved insufficient to protect them, it will not in a proper case refuse relief, even though the claim has been long outstanding; and espe sec. 17 of 3 & 4 Wm. IV. c. 27, a period of forty years is fixed as the extreme limit within which any proceedings may be taken. Notwithstanding this, a sixty years' title is still necessary, and the rule which requires a vendor to give it, in the absence of conditions to the contrary, remains unaltered. "One ground of this rule," remarks LYNDHURST, L. C., "was the duration of human life, and that is not affected by the statute." Cooper v. Emery, 1 Phill. C. C. 388. The seventeenth section, just referred to, was decided to be retrospective in Corbyn v. Bramston, 3 Ad. & El. 63. But the question seems not to be free from doubt, as the words are perhaps in strictness prospective and different from those in some other sections, the twenty-sixth, for example; and in the learned note to Nepean v. Loe, in 2 Smith's L. C. 662, it is suggested that the question may be still open. 1 Clarke v. Boorman, 18 Wall. (U. S.) 493; Rundle v. Allison, 34 N. Y. 180; Mann v. Fairchild, 14 Barb. (N. Y.) 548. 2 Miner v. Beekman, 50 N. Y. 337; Hubbell v. Sibley, 50 id. 468. 3 Peters v. Delaplaine, 49 N. Y. 362. Oakes v. Howell, 27 How. Pr. (N. Y.) 145. 173. 8 Roberts v. Sykes, 30 Barb. (N. Y.) In Montgomery v. Montgomery, 3 Barb. (N. Y.) Ch. 132, an action to annul a marriage on the ground of fraud was held to be embraced under the six years' clause; so in Borst v. Corey, 15 N. Y. 505, an action to enforce an equitable lien for the purchase-money of lands, or indeed to any case where fraud is alleged and relied upon. 8 Chapman v. Butler, 23 Me. 191. In matters of account, even where they are not barred by statute, courts of equity refuse to interfere after a considerable lapse of time, from considerations of public policy and from the difficulty of doing entire justice, when the original transactions have become obscure by time, and the evidence may be lost. McKnight v. Taylor, 1 How. (U. S.) 161. But mere lapse of time will not defeat equitable relief when time is not essential to the substance of the contract, and the party seeking relief has acted fairly, though negligently, unless the delay has been so long as to justify a presumption that he had abandoned the contract. Getchel v. Jewett, 4 Me. 350. But these statutes, being statutes of repose, suspend the remedy, but 5 Wood v. Wood, 26 Barb. (N. Y.) do not cancel the debt; and although 356. equally available as a defence at law and cially do they make an exception in the case of direct technical trusts, and fraudulent concealment of the cause of action. Nor will the statutory bar be applied in equity, so long as an action at law will lie upon the instrument upon which the equitable action is predicated.2 The statute is applied in equity in matters of account, to actions to remove a cloud upon a title, to actions to foreclose mortgages," or title bonds, or for the specific performance of contracts; and generally courts of equity will adopt the statute in analogy to the nature of the claim sought to be enforced, and, as will be seen in the following section, where there is no analogous statute, as where the matter is purely equitable, the court will refuse relief, if the plaintiff has been guilty of laches in asserting his rights, and a demand will often be regarded as stale, even though the time which has elapsed is less than the statutory period.R in equity, yet where there are two securities for the same debt, one of which is harred by the statute and the other not, the creditor, notwithstanding he has lost his remedy at law on the former, may pursue it in equity on the latter. Where the security for a debt is a lien on property, personal or real, that lien is not impaired in consequence of the debt's being barred by the statute of limitations. Therefore, where a debt due from A. to B. was secured by a promissory note, made by B. in April, 1817, payable in five years, and by a mortgage of real estate, executed by B. at the same time, but the note was never in fact paid, and B. had no property except the estate mortgaged, on a bill of foreclosure brought by A. in January, 1835, it was held that he was not barred of his right as mortgagee, and the relief sought was decreed. In such case, the finding of a debt due from B. to A., as the basis of a decree of foreclosure, would not preclude B. from availing himself of the statute of limitations, in a subsequent action on the note. Belknap v. Gleason, 11 Conn. 160. 48. 5 Cleaveland Ins. Co. v. Reed, 1 Biss. (U. S. C. C.) 180; Anderson v. Baxter, 4 Oregon, 105; Hall v. Denckler, 28 Ark. 506. Day v. Baldwin, 34 Iowa, 380. The statute has been held applicable in equity in the following instances: In proceeding to set aside a judgment on account of fraud, Moon v. Baum, 58 Ind. 194; an action to enforce a mortgage, Eubanks v. Leveredge, 4 Sawyer (U. S. C. C.), 274; to redeem from a mortgagee, Smith v. Foster, 44 Iowa, 442; to vacate a judgment on the ground of fraud, School District v. Schreiner, 46 id. 172; to impeach the validity of a decree for a divorce a mensa et thoro, Bourlan v. Waggaman, 28 La. An. 481; to annul a mort ge on the ground of fraud, Renshaw v. Herbert, 29 id. 285; to annul a contract on the ground of lesion, Blake v. Nelson, id. 245; to restore a record in a suit to enforce a contract, Wyatt v. Sutton, 10 Heisk. (Tenn.) 458; to reopen an account, Spruill v. Sanderson, 79 N. C. 466; to enforce the liability of stockholders for the debts of a corporation, Godfrey v. Terry, 97 U. S. 171; or for the division 1 McLain v. Ferrell, 1 Swan (Tenn.), of lands and profits thereof, Harlaw v. 2 McNair v. Ragland, 1 Dev. (N. C.) 533; Bidwell v. Astor Mut. Ins. Co., 16 N. Y. 263; Wood v. Ford, 29 Miss. 57. * Mann v. Fairchild, 3 Abb. (N. Y.) App. Dec. 152; Hubbell v. Sibley, 50 N. Y. 468; Atwater v. Fowler, 1 Edw. (N. Y.) Ch. 417. Hodgden v. Gutting, 58 Ill. 431. Lake Superior Iron Co., 41 Mich. 583; or 7 Brennan v. Ford, 46 Cal. 7. SEC. 59. Rule as to purely Equitable Matters. —As to matters of equitable cognizance merely, the statute does not apply. In other words, the statute is not binding on courts of chancery in cases of exclusively equitable cognizance. But the court often refuses to interfere where there have been gross laches or a long or unreasonable acquiescence in the assertion of adverse claims, and adopts, in cases to which the statute does not strictly apply, a period within which its aid must be sought, similar to that prescribed in analogous cases at law. But 1 Marsh v. Oliver, 14 N. J. Eq. 259; Attorney-General v. Purmort, 5 Paige (N. Y.) Ch. 620; Warner v. Daniels, 1 W. & M. (U. S. C. C.) 91. The court will not apply the statute of limitations to a demand purely of an equitable nature, Singleton v. Moore, Rice (S. C.) Ch. 110. 2 Askew v. Hooper, 28 Ala. 634. In matters purely equitable, if there is an analogy between it and a remedy at law, the court will generally apply the same limitation. Thus, a grantor's bill alleging that the conveyance was in fact made as a security for money loaned, and charging that the grantee had sold the land for a much greater sum than the indebtedness, and praying an account for the difference, was held to be barred in the same period that an action for a debt would be at law. Hancock v. Harper, 86 Ill. 445. The statute cannot be pleaded by trustees, in defence of a charge of a breach of trust, or the consequences of neglecting their duty in having sold an estate incumbered, without satisfying that demand. Milnes v. Cowley, 4 Price, 103. In Cholmondeley v. Clinton, 2 Mer. 173, 357, the defendant's father, conceiving himself entitled in remainder, under the words of a limitation, upon the death of the particular tenant, had entered into the possession of the equity of redemption of certain estates, which were then in mortgage. On his death defendant entered as heir-at-law, and after twenty-one years' uninterrupted possession in the two, plaintiff claimed the right of redemption, alleging a want of title in defendant's father; defendant set up the length of time. But GRANT, M. R., held that the statute of limitations could not operate; that though there was a possession of twenty years, it was not in the character of owner of the legal estate, and that, without something tantamount to a disseisin, there could be no bar; that the subsistence of the mortgage in this case rendered the estate an equitable one, and that of an equitable estate there could be no disseisin. On this cause, however, coming on for further directions, PLUMER, M. R., overruled the former decision, and after reviewing the cases where length of time has been considered a bar in equity, stated the effect of them to be, first, that courts of equity have at all times, upon general principles of their own, even where there was no analogous statutable bar, refused relief to stale demands, where the party has slept upon his right, and acquiesced for a great length of time; and, secondly, that whenever a bar has been fixed by statute to the legal remedy in a court of law, the remedy in a court of equity has, in the analogous cases, been confined to the same period. He then stated it to be clear, that, had the present been the claim of a legal estate in a court of law, the remedy would have been barred by the statute of limitations. therefore clear, that being an equitable estate, the remedy must, by analogy, be equally barred in a court of equity. 8. C. 2 Jac. & Walk. 1, 151. On appeal to the Lords, the decree of PLUMER, M. R., was affirmed, LORD ELDON stating his opinion to be, that adverse possession of an equity of redemption for twenty years was a bar to another person claiming the same equity of redemption, and worked the same effect as disseisin, abatement, or intrusion, with respect to legal estate. s. c. id. 191. As to the decisions that a direction by will, to pay debts, took away the plea of the statute of limitations, there is a distinction between debts on simple contract and bond; the principle as to the former is, that the debt may have existence and the remedy be taken away, but the bond debt goes upon the presumption of payment. ELDON, C., in Ex parte Roffey, 19 Ves. 470. It was Per where the claim is purely equitable, unless expressly so provided, the statute does not apply thereto, and the lapse of time, however long, will not deprive a party of his remedy thereon if there is a reasonable excuse for the delay; as the court will not allow a just claim to be defeated simply because of the lapse of time, if the party has not, in view of the circumstances, been guilty of unreasonable delay. Thus, in an Illinois case, it was held that a bill to foreclose a mortgage will not be barred on the ground of staleness even after the lapse of thirty-five years, when it is shown that the mortgagor has been out of the State most of the time, and had apparently abandoned his equity of redemption, and the mortgagee has constantly asserted his claim by the sale of part of the premises, paying the taxes on the remainder, and other acts of ownership, and no adverse claim had been asserted until about a year before the bill was brought.* In cases where the jurisdiction of equity is concurrent with courts of law, that is, when a right is sought to be enforced in equity for which the party has a remedy at law, it would operate as a virtual repeal of the statute, if parties by a change of forum could evade its effect; and for this reason there is much justice in the statement of CATRON, J.,5 that courts of equity are no more exempt from these statutes than courts of law. But this cannot be said to be the case where the rights sought to be enforced are merely matters of equitable jurisdiction, because the ill results likely to ensue in the former case cannot ensue in this, and also because this class of claims cannot be said to be within the spirit or intent of these acts, unless expressly embraced therein; and in such cases the rights of parties are enforced without reference to the statute, unless from lapse of time and neglect in seeking their enforcement they have become stale; and the arguments advanced in some of the cases, that as the statute of James was in force when our statutes were enacted, and that the legislatures well understood the manner in which the courts 1 Pitzer v. Burns, 7 W. Va. 63; Askew v. Hooper, 28 Ala. 634; Keaton v. McGwier, 24 Ga. 217; Burden v. Stein, 27 Ala. 104; Union Bank v. Stafford, 12 How. (U. S.) 327; Wood v. Ford, 29 Miss. 57. 2 But in such cases the burden is on the plaintiff to show a reasonable excuse for delay. Pierce v. McClellan, 93 Ill. 245. In Cherry v. Lamor, 58 Ga. 541, it was held that where bank-notes have been sued upon in due time, and judgments thereon recovered, a bill to bring in equitable assets and subject them to the judgments for the satisfaction thereof is not governed by the periods of limitation that would be applicable if the bank-notes, instead of the judgment, were the foundation of the bill. 3 Locke v. Caldwell, 91 Ill. 417. 4 See also Johnson v. Diversey, 82 Ill. 446; Calwell v. Miles, 2 Del. Ch. 110; Preston v. Preston, 95 U. S. 200; Neely's Appeal, 85 Penn. St. 387. 5 Bank of United States v. Daniel, 12 Pet. (U. S.) 56. 6 See to same effect Piatt v. Vattier, 9 Pet. (U. S.) 416; Kane v. Bloodgood, 7 Johns. (N. Y.) Ch. 90; Bowman v. Wathen, 2 McLean (U. S. C. C.), 876; Hakins v. Barney, 5 Pet. (U. S.) 457; Coulton v. Walters, 4 id. 62; Robinson v. Hook, 4 Mas. (U. S. C. C.) 139; Baker v. Biddle, 1 Bald. (U. S. C. C.) 419; Miller v. McIntyre, 6 Pet. (U. S.) 61. 7 Lawrence v. Trustees, 22 Den. (N. Y.) 577; Rockwell v. Servant, 54 Ill. 251. |