Argument for the complainant in error.

this suit was commenced, and that this is apparent on the record. But it does not appear that this plaintiff became of age twenty years before the commencement of the suit. The inference is that he did not.

Nor are we barred by any rule of limitations, peculiar to courts of equity, because of alleged laches. We do not admit "that courts of equity treat a less period than the one specified in the statute as a bar to the claim." Story, J., says:* "In a case of trusts of lands, nothing short of the statute period, which would bar a legal estate or right of entry, would be permitted to operate in equity as a bar of the equitable estate." Certainly no bar, either legal or pre'sumptive, will begin to run until after the cause of action or suit has arisen; and in equity, in cases of fraud and mistake, it will begin to run only from the time of the discovery of such fraud or mistake, and not before. The license to sell, we assert and show, was procured by fraud.

Daniel Badger sustained to his mother and brothers and sisters, more especially the minors, a relation of peculiar trust and confidence, of both natural and legal obligation. He was not only administrator, and thus the guardian of their interests, but he was her son and their protector. It was his duty, imperatively imposed, to deal with them frankly and truthfully and honestly, and a court of equity will hold him strictly to it. If he suffered them to be deceived, this was a fraud upon them. But whether fraud or mistake, they will not be barred, either by the statute or by laches, until they discovered it. When was that? Certainly not until long after these sales took place. There can be no acquiescence without full knowledge of facts. Even a written acknowledgment of acquiescence in his acts, inade in ignorance of their rights, would not bind them. In Michoud et al. v. Girod et al.,† this was so held, in the following words: "Even acquittances given to an executor, without full knowledge of all the circumstances, whore information had been withheld by the executor, are not bind

*Baker v. Whiting, 3 Sumner, 486.

† 4 Howard, 503.

Argument for the complainar t in error.

ing." And this court set aside and annulled a decree in favor of one of the executors for a large amount, although there had been a judgment in his favor by a competent court, after a full trial before arbitrators, and an allowance of the sum so found to be due him in the executor's account.

When did they first discover that they had been deceived and imposed upon by their brother? or, in other words, when did they first learn that their estates were not legally liable to be taken and sold for payment of debts? for not until that time will the limitation begin to run.

The bill alleges, substantially, that this was not known to them until within five years before the commencement of the suit. The answer does not deny this. It is, at least, evasive. The bill does not allege that they "had no knowledge of the sale and purchase of these estates until," &c., and the answer denies what is not alleged,-leaving the allegation unanswered.

Sufficient does not appear to make it the duty of this court to shield the defendant from accountability for his acts,―acts certainly never permitted to such a trustee,―on the ground that the plaintiff has grossly neglected to enforce his rights in the premises.

But, in cases of actual fraud, courts of equity do not adopt or follow the statutes of limitations; they will grant relief within the lifetime of the party who committed it, or within thirty years after it has been discovered, or become known to the party whose rights are affected by it.

The rule, as stated by the court, in Michoud et al. v. Girod et al., just cited, is universally recognized and applied by courts of equity. It has been affirmed by this court in subsequent cases, and we do not think it will be controverted. It was held, in that case, that "a purchase, per interpositam personam, by a trustee or agent of the particular property of which he has the sale, or in which he represents another, whether he has an interest in it or not, carries fraud upon the face of it;" and that "this rule applies to a purchase by executors, though they were empowered by the will to sell the estate;" and "that a purchase so made by executors will

Opinion of the court

be set aside." The sales in the case at bar took place in 1830; the present suit was begun in 1858, and in the lifetime of the person upon whom the fraud is proved, and within thirty years after it had been discovered. There was sufficient motive for an heir's not attempting to set the sale aside, in the fact that the widow would have had her dower in whatever land might be recovered.

Mr. Merwin, contra.

Mr. Justice GRIER delivered the opinion of the court. The numerous cases in the books as to dismissing a chancery bill because of staleness, would seem to be contradictory if the dicta of the chancellors are not modified by applying them to the peculiar facts of the case under consideration. Thus, Lord Erskine, in an important case once before him, says: "No length of time can prevent the unkennelling of a fraud." And Lord Northington, in Alden v. Gregory,* with virtuous indignation against fraud, exclaims: "The next question is, in effect, whether delay will purge a fraud? Never-while I sit here! Every delay adds to its injustice and multiplies its oppression." In our own court, Mr Justice Story has said: "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, on principles of eternal justice, to be admitted to repel relief.. On the other hand, it would seem that the length of time during which the fraud has been successfully concealed and practised, is rather an aggravation of the offence, and calls more loudly upon a court of equity to give ample and decisive relief."

Now these principles are, Lo doubt, correct, but the qualifications with which they are stated should be carefully noted:

1st. The trust must be "clearly established."

2d. The facts must have been fraudulently and success

* 2 Eden, 285.

Prevost Gratz, 6 Wheaton, 481.

Opinion of the court.

fully concealed by the trustee from the knowledge of the cestui que trust.

The case of Michoud v. Girod, cited by the appellant's counsel, is an example of the class in which the concealment of the fraud was the aggravation of the offence. The facts of the case were "clearly established" by records and other written documents, and the court were not called on to found their decree on the frail memory or active imaginations of ancient witnesses, who may not be able, after a great lapse of time, to distinguish between their faith and their knowledge, between things seen or heard by themselves, and those received from family or neighborhood gossip, er upou that most unsafe of all testimony, conversations and confessions, remembered or imagined,-partially stated or wholly misrepresented. The fraudulent concealment was also clearly established. The heirs, who lived in Europe, were deceived by the false representations of the executor, and kept in total ignorance of the situation and value of the estate, having no other information on the subject than that communicated to them by him. The delay was not the consequence of any laches in the heirs, but was caused by the successful fraud of the executor, and was but an aggravation of the offence.

But the case before us has none of the peculiar characteristics of those to which we have referred. For more than twenty-five years the widow and heirs have acquiesced in this sale, and it is more than thirty since the administration account was settled, which is alleged to have been fraudulent. The guardian of the complainant, who approved the account, is dead; the widow died in 1855. Two of the heirs were of full age in 1831, and the others afterwards. This bill was filed in 1858. The bill does not state the age of complainant. But at the time of filing his bill, he must have been over forty years of age.

The whole transaction was public, and well known to the widow and the heirs, and their guardians. The purchase of the estate by the administrator could have been avoided at once, if any party interested disapproved of it. There was not and could not be any concealment of the facts of the

case.

Opinion of the court..

The complainant claims as assignee of his elder brothers and sisters, and uses them as witnesses to prove the alleged fraud after a silence of over thirty years. They attempt to prove the signature of their mother to the documents on file in the court to be forged, and this after the death of the mother, who lived for twenty-eight years after the transaction without complaint or allegation either that her signature was fraudulently obtained or forged. A daughter, who was twenty-three years of age when this sale was made, and had full knowledge of the whole transaction, after near thirty years' silence, now comes forward to prove that her concurrence and assent was obtained by fraud; and now, after the death of the guardian and the mother, who could have explained the whole transaction, the aid of a court of chancery is demanded to destroy a title obtained by judicial sale, after the parties complaining, with full knowledge of their rights, have slept upon them for over a quarter of a century.

Now, the principles upon which courts of equity act in such cases, are established by cases and authorities too numerous for reference. The following abstract, quoted in the words used in various decisions, will suffice for the purposes of this decision:

"Courts of equity, in cases of concurrent jurisdiction, consider themselves bound by the statutes of limitation which govern courts of law in like cases, and this rather in obedience to the statutes than by analogy.

"In many other cases they act upon the analogy of the liko limitation at law. But there is a defence peculiar to courts of equity founded on lapse of time and the staleness of the claim, where no statute of limitation governs the case. In such cases, courts of equity act upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, refuse to interfere where there has been gross laches in prosecuting the claim, or long acquiescence in the assertion of adverse rights. Long acquiescence and laches by parties out of possession are productive of much hardship and injustice to others, and cannot be excused but by showing some actual hindrance