#### Robert Thompson and wife and others v. Thomas Blair and others.

From Guilford.

Possession of title deeds. Notice to purchasers. Length of time, — how it pi'otects from an investigation of fraud.

Where land is sold without warranty, or with warranty only against the feoffor and ■ his heirs, the purchaser is entitled to all the deeds as incident to the land, to enable him to defend it.

Where a purchaser, in the necessary deduction of his title, must use a deed which leads to a fact shewing an equitable title in another, he will be affected with notice of that fact, and will not be permitted to prove that he did not read the deed, or that he was ignorant of its contents.

Where, therefore, the plat and certificate of survey annexed to a grant, shewed that the lands were surveyed for “ Ruth and Jane M’Cuistion, “ orphans of Robert M’Cuistion,” and the grant to which this plat and certificate were annexed, issued to “ Jane M’Cuistion, widow,” this is a fact, of which all persons claiming under “ Jane M’Cuistion, widow,” are bound to take notice.

Although the statute of limitations speaks of actions in the Courts of Law, . yet it is the duty of a Court of Equity to infuse its spirit into their decisions, as much as can be done without violating its own fundamental maxims ; it being the object of both Courts to obey the Legislative will, when expressed either directly or indirectly.

The investigation even of a fraud, will not be permitted after a great lapse of time, where the Defendants be not the persons who committed the fraud, although they may be volunteeis.

The rule, that trust and fraud are not within the statute of limitations, is subject to this modification, that if the trust be constituted by the act of the parties, the possession of the trustee is the possession of the ces-tui que trust, and no length of such possession will bar; but if a trust be constituted by the fraud of one of the parties, or arises from a decree of a Court of Equity, or the like, the possession of the trustee becomes adverse, and the statute of limitations will run from the time the fraud is discovered.

Wherever the Legislature has limited the period for Law proceedings, Equity will, in analagous cases, consider equitable rights as bound by the same limitation.

Relief was therefore refused to “ Ruth and Jane M’Cuistion,” because nearly thirty years had elapsed from the time the fraud committed by “ Jane M’Cuistion, widow,” was discovered, before application was. made to Equity for relief.

The bill charged, that Moses Ruth, of the State of Maryland, had a daughter named Jane, who intemarried *584witli one Robert M’Cuistion, and settled in Guilford Coun-i'1^'*s State: that by her said husband, she had two children, Rutli and Jane, who, with their husbands, were the Complainants in this case : that her husband died, and she survived him, and whilst she was a widow, her father, Moses Ruth, came out to this State, and in the year 1756, purchased and procured to he surveyed, on or by virtue of a warrant before that time duly issued, out of and by the proper office, a tract of land lying in the County of Rowan, now Guilford, for the Complainants, Ruth and Jane, by the name and description of “ Ruth and Jane M’Cuistion, “ orphans of Robert M’Cuistion, deceased that Moses Ruth paid the purchase money and fees for the same, or loft money for that purpose with his daughter, Jane M’Cnistion, mother of the said Complainants : that at the time of the said survey, the Complainants, Ruth and Jane, were infants of very tender years, and their persons and estates were under the care and custody of their mother, as their guardian, who, on the 29th day of July, 1760, obtained from the Earl of Granville, a grant of the said tract of land upon the said survey, to and in her own name, the grant purporting to be made to “ Jane M’Cuistion, wi- “ dow.”

The bill then charged, that Jane M’Cuistion, being the widow of Robert M’Cuistion, and the Complainants, Ruth and Jane, being his orphans, and being infants, and Jane M’Cuistion being their mother and guardian, and having the care and custody of their persons and estates, and their grandfather, Moses Ruth, having obtained a warrant from Lord Granville’s office, and caused a survey to be made thereupon for them, and having paid the price and fees for the land, and Jane M’Cuistion, their mother, well knowing the premises, having obtained a grant to and in her own name, upon and by virtue of the said warrant and survey, so obtained and made by Moses Ruth, became seised of the said tract of land, in trust and to the use of *585the Complainants, E-utli and Jane, and bound in Equity to convey the same to them as they should direct.

That Jane M’Cuistion afterwards intermarried with ... • . r .i Tliomas Blair, who, together with the said Jane, on the 4th day of February, 1765, made and executed a deed of conveyance of the said lands, to James Archer, in fee simple, but with warranty only against the said Thomas Blair and Jane, his wife, and their heirs, and all claiming under them and describing the said tract as granted to the said Thomas Blair’s wife Jane, by Earl Granville, by a deed patent, bearing date the 29th day of July, 176G.

The bill then charged that James Archer at and before the time he contracted for the purchase of the said tract of land, and the time of making the deed to him, and at and before the payment of the purchase, money, had full notice of the premises and of the trusts aforesaid, and so became trustee of whatsoever estate and interest passed by the deed to him and his heirs, for the Complainants Ruth and Jane, and their heirs. That Archer had since died, having previously published in writing his last will, duly executed to pass his real estates, and therein and thereby devised the lands to his sons, who were the Defendants in this case, with Thomas Blair and Jane his wife.

The bill prayed as against the devisees of Archer, a conveyance of the legal estate in the lands, to the Complainants Ruth and Jane, and an account of the rents and profits ; and as against Blair and wife, that if by reason of want of notice to Archer or other equitable circumstance in his favour, the Court would not decree his devisees to convey, then that Blair and his wife be decreed to account with Complainants, and pay over to them the purchase money recoil ed from Archer, with interest.

To' the bill was appended a copy of the certificate of survey with a plat thereof annexed, which Lord Granville’s surveyor had returned into the proper office, and upon which the grant issued. This plat and certificate dated 10th August 1756, set forth that the land was surveyed *586 t( for Rufh and Jane M’Cuistion, orphans of Robert “ M’Cuistion deceased.” And a duplicate of the plat and certificate of survey was, by the custom of Lord Gran-ville’s office, annexed to the grant, and referred to in the grant.

There was also appended to the bill a copy of the grant issued upon the foregoing plat and certificate of survey, to Jane M’Cuistion, widow.

The bill was filed in 1808, and the Complainants Ruth and Jane, did not labour under the disability of coverture until after their arrival to full age. Ruth having attained to the age of twenty-one years in 1775, and Jane in 1777. That shortly after their respective intermarriages, they and their husbands asserted their claim to the lands, and commenced suit against Archer ; which suit was abandoned. About tiie same time they commenced suit against Blair and wife ; which suit was also abandoned ; and in 1804, they brought an action at law against Blair, claiming the purchase money received from Archer, treating his sale to Archer as an agency oh their behalf. In this suit they were nonsuited, and then they filed this bill.

Thomas Biair and wife in their answer, denied that the lands liad been entered by Moses Ruth for the Complainants Ruth and Jane, that he had paid the purchase money or fees of office, or left the same with the Defendant Jane, his daughter, or that he had purchased a warrant and procured the lands to be surveyed for the said Ruth and Jane. They alleged that the entry was made in Earl Granville’s office by Robert M’Cuistion, father of the said Ruth and Jane, and in his name ; that after his death, the Defendant Jane, his 'widow, having administered upon his estate, sold the entry at the sale of the personal estate and she became the purchaser : that upon applying at the office for a grant, she found the entry had lapsed, and was advised to enter the land in her own name ; that her agent, whom she employed to make the entry, by mistake, made the entry in the name of her daughters Ruth and Jane; that she paid *587the fees of office and obtained the grant in her own name. That she did not hold the lands in trust for the Complain-, ants, &c. They insisted in their answer upon the length of time, during' which Complainants had suffered their claim to lie dormant, and prayed advantage thereof.

The devisees of Archer, in their answer, referred to,the answer of Elair and wife, and prayed advantage of the matters and things therein set forth; and alleged that their testator was a purchaser of the lands from Blair and wife for a valuable consideration, without notice of Complainants equity.

The answers were replied to, and pending the suit, Jane Blair died, leaving her husband and three children her surviving. It was then discovered that she had not been privily examined, ,as the law directs, touching her execution of the deed to Archer; and the Complainants filed a supplemental bill and bill of revivor, and made her children parties.

The cause came on to .bA heard at September Term, 1817", before his Honour - J uuge Sea well, who directed a Jury to be impannelled to try the following issue, to wit, e< whether the grant made by' Earlv Granville to Jane “ M’Cuistion, mentioned in the bill V complaint, was “ fraudulently obtained, or not, upon aifcpntry, to which “ the Complainants Ruth and Janc"'were.|entitied.” The Jury found that the grant had been fraudulently obtained by James M’Cuistion upon an entry, to which the complainants Ruth and Jane were entitled.

The case was then transmitted to the Supreme Court upon the original and supplemental bill and bill df revivor, the answers of the Defendants and the finding oñthe Jury upon the issue submitted to them, for that Court to. determine what decree the complainants were entitled to. It appearing in the case that the grant to Jane Ivf’Cuistion. was issued upon a survey made in the name of the complainants, Ruth and Jane. And as the grant so issued constituted a part of Defendants’ title, and upon the face *5880f it expressed to be made according to the annexed plat an^ Modifícale, it was submitted to the Supreme Court whether Archer, claiming under this grant, should not be held and construed to have notice of the fact set forth in

the said plat and certifícate, to wit: that the lands were surveyed for the complainants, Ruth and Jane.

Henderson, Judge.

The Defendant, JaneM’Cuistion, obtained Earl Granville’s deed in the year 17G0 j and with her second husband, Thomas Blair, sold to Archer in 1765. Archer entered, claiming the lands as his own, and continued in possession to the time of filing this bill in 1808. His possession, and that of Ids devisees, has been for forty-three years. The complainants, Ruth and Jane, arrived at full age more than thirty years before the filing of this bill, and if they have labored under any disability other than infancy, it lias been cumulative, and ought to have been shewn by them, if they could avail themselves of it. During all this time they lie idle, and do not assert their title, except by instituting suits against Archer and Blair about the year 1779, and abandoning them, and bringing a suit for the purchase money against Blair, in the year 1804. Upon this statement of the case, we should violate the will of the Legislature as expressed in regard to legal titles, in the act of 1715, for quieting-titles and limiting- the time in which actions should be brought. For, although that act speaks of actions in the Courts of Law, yet it is the province of a Court of Equity to infuse its spirit into their decisions as much as can be done, without violating its own fundamental maxims. For it is its only will, as that of the Courts of Law, to obey the legislative will, when expressed either directly or indirectly.

But it is said, that time does not bar a fraud, and here the Jury have found that the grant was fraudulently obtained. To which it may be answered, that even the investigation of a fraud will not be permitted after a great *589lapse of time, where the claimants are not the persons who committed the fraud, authough they may be volunteers. But certainly Etjuity will respect time after the, fj'aud is discovered. The Defendants who are charged. with the fraud, have not concealed ,the evidence of that fraud. They have annexed a certificate of survey to their deed, and placed it, together with their deed, on the public records of the country, liable to the inspection of all: ■and this they did at the very time their deed was obtained. It is by this entry and survey alone, that the Defendants are or can be affected with notice ; and the only difference between the Complainants’ and Defendants’ opportunity of knowing it, is, that it forms a link in the Defendants’ chain of title, and the deed is referred to in their deed. We cannot therefore but perceive, that the Complainants must long since have had a knowledge of Defendants’ title t, and it would contravene one of the established rules of this Court, to support a claim so stale. The bill must be dismissed.

Taylor, Chief-Justice.

— Moses Ruth, grandfather to the Complainants, Ruth and Jane, purchased for them, about the year 1756, a tract of laud in Rowan County, which was surveyed by virtue of a warrant in their names, as the orphans of Robert M’Cuistion, deceased, and either paid the purchase money, or left it with the Defendant Jane, fhoir mother, then a widow. She, acting as guardian to her daughters, who were infants, obtained in 1760, a grant from Lord Granville, in her own name, with full knowledge that the land was paid for and surveyed for them. The Defendant Jane, intermarried in 1765, with Thomas Blair, and they executed a deed for the lands to James Archer, who, it is charged, had full notice of the preceding circumstances. James Archer died in 1799, after having made bis will, and devised the lands to certain of his children. This is the statement made in the bill.

*590The history of the transaction is altogether different as §ffven i» the answer of Thomas Blair and Jane his wife ; who say, I hat Moses Ruth did not purchase the lands for the Complainants, Ruth and Jane, and that no money was paid to them, or any other person, for that purpose ¿ but that the lands had been entered and surveyed by Robert M’Cuistion, in his life time, but the title not completed, nor was there any money paid by him. That upon the sale of his effects after his death, this entry was purchased by his widow Jane, who, in endeavouring to procure a grant upon it, discovered that it had lapsed, and she was therefore obliged to re-enter it in her own name : that by a mistake of the agent, the entry was made in the name of the heirs of Robert M’Cuistion, which mistake the widow tried to get rectified, but was told it was immaterial, and that the grant would be issued in her own name, which was accordingly done: that the land was sold to James Archer, and the price paid, before her intermarriage with Thomas Blair, but that afterwards, she and her husband executed the deed to him jointly. It is further stated, that the Complainant, Ruth, was of age in 1774, and unmarried, aud that Jane was of age in 1776, and that before her marriage with the Complainant, Short, she had been married to Alexander Nelson, who, together with the Complainants, Robert Thompson and wife, set up a claim to the land, about the year 177 9.

The devisees of Archer, in their answer, say that their testator was a purchaser of the lands for a valuable consideration, without notice of Complainants’ claim.

Some additional statements appeal- in the bill of revivor, which are, that Jane, the Defendant, not having been privily examined when she executed the deed to Archer, the title, upon her death, devolved upon her heirs, who are her issue, by Thomas Biair. These issue, in their answer, rely upon the answer filed by Thomas Blair and wife, and require the Complainants to be put to the proof of the illegality of their mother’s conveyance.

*591The Jury have found, that the conveyance from Lord Granville to Jane M’Cuistion, was fraudulently obtained upon an entry to which the Complainants, Ruth and Jane, were entitled ; and the questions before this Court are, 1st. Whether as the grant forms a part of Defendants’ title, and shews upon the face of it, to have been made according to the certificate of survey annexed to it, such survey being in the names of the Complainants, Ruth and Jane, amounts to notice of their equitable title ? 2d. Whether the Complainants are barred of relief by length of time ?

As to the first question. Where land is sold without warranty, or with warranty only against the feoffor and his heirs, the purchaser is entitled to ail the deeds as incident to the land, to enable him to defend it.* The special warranty which Blair and his wife made to James Archer, entitled him to the possession of the grant; it fanned part of his title, and it is to be presumed he received it. It is a well established rule in this Court, that where a purchaser, in the necessary dtdurtion of his title, must use a deed which leads to a fact shewing an equitable title in another, he will be affected with notice of that fact. As where a person took a mortgage, from one who claimed the land under a will, by which it was encumbered with legacies, the mortgagee could not deduce his title without the will, and therefore shall be chargeable with notice, although the devisee had levied a fine to the use of himself and his heirs.

He shall be presumed to know it, although in fact he may be ignorant of it; for his ignorance must be the effect of gross negligence. Hence this kind of constructive notice is founded upon evidence of so satisfactory a kind, that it is held to be, incontrovertible: so that if a man, upon the purchase of land, has a deed put into his hands, which recites a title in some other person, he will not be allowed to prove that he did not read the deed, or that he was ignorant of the recital. And even if a person purchase lands with notice that they are contracted to be sold to another, *592and take the deed to his son and his heirs, though the son *)at"1 no notice of the contract, yet the notice to the Father shall affect him.*

The rule may be applied to many cases, in which it would probably produce much hardship ; as where many deeds were to be examined in the investigation of a complicated title, a person might overlook or forget the fact, with the knowledge of which ho is charged. But when James Archer purchased from Blair and his wife, the only title they had, was contained in the grant from Earl Gran-ville, and it was impossible to inspect that without knowing or having reason to suspect, that it. ought to have issued in the names of Ruth and Jane M’Cuistion. When to this is added, that Archer had an immediate right to the possession of the grant, no regret can be felt at the application of the rule to his case, since it so fully accords with its justice.

As to the second question. James Archer having, then, purchased the land with notice of this combination of trust and fraud, he and all volunteer claimants under him, must take the land, subject to the Equity to which it was liable in the possession of Blair and wife; and if the lapse of time would bar the Complainants against them, it must do so against the Defendants. They claim under a purchase made by their ancestor fifty, years ago, during part of which time, one of the Complainants was of full age and unmarried, and forty years have elapsed since she arrived at age : the other Complainant reached her full age nearly forty-five years ago, and has been twice married. About the year 1779, the Complainants, Ruth and Jane, with their husbands, set up a claim to the lands, and soon after-wards abandoned it, or remained silent about it. No reason is given in the bill, why they have slept so long upon their rights, nor is their acquiescence in the Defendants’ possession for the rest of this long period, in any wise accounted for. In this view of the case, it would be entirely *593just that the Complainants should be denied relief, unless they are protected by the rule that trust and fraud are not within the statute of limitations. The rule with res-pert to a trust is, that if it be constituted by the act of the parties, the possession of the. trustee is the possession of the cestui que trust, and no length of such possession will bar : but if a party is to be constituted a trustee by the decree of a Court of Equity, founded in fraud or the like, his possession is adverse, and the statute of limitations will run from the time that the circumstances of the fraud were discovered. A fraudulent transaction, from the se-cresy with which it is usually conducted, may remain for a long1 time unknown to the injured party j and it would be unconscientious to allow the Defendant to avail himself of the statute during1 such a period. But after the discovery of the fraud, a new right of action is given to the party affected by it, and there is no reason requiring a suit to be prosecuted at law, and barring the Plaintiff if he neglects it, which does not equally apply to a Court of Equity. In 3 Peere Wins. 143, it is said, “ If the fraud “ was known and discovered above six years before exhi- “ biting the bill, this, though a fraud, would be barred by “ the statute of limitations.” In Weston v. Cartwright,* it was held, that notwithstanding a fraud, the Court, after a length of time, ought not to investigate the subject. It is said by a great Chancellor, that Courts of Equity have constantly guided themselves by this principle, that wherever the legislature has limited a period for Daw proceedings, Equity will, in analagous cases, consider equitable rights as bound by the same limitations.† The hardships and injustice with which a contrary rule might operate against executors, administrators, legatees, and innocent persons claiming under a fraudulent party, is much considered in 2 Ves. jun. 92.

Upon this ground, therefore, the Complainants must fail, because the discovery of the fraud was made many years *594since, and, indeed, it was of a nature that could not be concealed. Tt would be a most alarming precedent to investigate transactions after so great a lapse of time, when the fraud imputed was committed before the birth of those who are now called upon to answer it, and when no reason is shewn for the delay. The bill must be dismissed.

*

1 Co. 1,

*

1 Ch. Ca. 38. 2 Vern. 662. 2 Anstruther 438.

*

Select Cas. in Ch. 34,

†

2 Schl. & Lef. 632.