7 N.C. 115 | N.C. | 1819
The plaintiff then proved, that on 24 January, 1786, the warrant No. 1751, was located on the east fork of Stone's River; and that after the marriage of Smith with Nancy Shepperd, a grant issued to her from the State of North Carolina for these lands, That previously to the sale of Hamilton, to-wit, on 25 January, 1798, Smith and his wife sold the lands so granted to her to John Gray Blount. Their deed to Blount, the execution of which was proved on the trial, was acknowledged in Pitt County Court, by Smith, and the privy examination of his wife taken. There was also a certificate of the presiding Justice of the Court, that George Evans, who attested the probate, was Clerk of the Court. A certificate of registration in Sumner County, in Tennessee, was endorsed on the deed; but there was no other evidence that the registration in Tennessee was an official act. This suit was instituted in November, 1811; and *92 it appeared that the Plaintiff had not discovered the alleged fraud until a year before the suit was brought. Smith died, and the administrator qualified more than two years (117) before the bringing of this suit.
The Defendant pleaded "the general issue, the act of 1789, and the statute of limitations."
On the first plea, it was insisted, 1st That Hamilton, by inserting the figures and word "640 acres" in Smith's deed, had so vitiated it that the Jury should not regard it, nor enquire whether such an insertion was made with a fraudulent intent or not; and of this opinion was the Judge before whom the case was tried: but he directed the Jury that if, from any other evidence in the case, it appeared satisfactorily to them that a sale had been made, they were at liberty to regard such evidence.2d. That it did not judicially appear that the deed from Smith to Hamilton, and the deed from Smith and wife to Blount, had been registered. But no evidence was offered that by the laws of Tennessee, registration was necessary.
To support the plea of the act of 1789, the Defendant proved that Smith died in August, 1807, and that in the next month, the Defendant having taken out letters of administration on his estate, advertised at the court house and two other public places in the county where Smith had usually resided next before his death, for creditors to present their claims or that they would be barred. To this plea there was a replication; and the Judge instructed the Jury that the defendant had done all that was required of him by the act of 1789, and that the Plaintiff was barred.
As to the plea of the statute of limitations, that the suit had not been brought within three years after he cause of action accrued, the Plaintiff replied specially, that the fraud was not discovered until ______, and that this suit was brought within three years after the discovery — and on this point the Judge instructed the Jury, that if they were satisfied of the facts, the replication was good.
The Jury found for the Plaintiff; and a new trial was moved for, 1st. Because the deeds did not judicially appear to have been registered.2dly. Because the Jury found contrary to the charge of the Court upon the plea of the act of 1789. (118) The motion for a new trial was sent to this court. It is unnecessary to decide any other point in this case than the statute of limitations. More than three years had elapsed from the time the cause of action accrued, to the bringing of this suit, and the Plaintiff is not *93 within any of the savings of the act. But he alleges, that this was a transaction founded in fraud, and that he brought the action within less than three years after he made the discovery. Were it not for the difficulty of ascertaining the fact, when the discovery was made, and we were now legislating on the subject instead of expounding the law, we might make such an exception. But it is not in the act, nor is there anything like it; and we cannot put it there. It is neither in its letter nor spirit.
But it is said, the statute of limitations does not run where there is a fraud or trust. It is true, where there is a pure trust, in which case Equity has exclusive jurisdiction, also in cases where there is a fraud in which Equity has the like jurisdiction, the Court of Equity will permit or not, at its discretion, lapse of time to bar an investigation: but the Court is bound by no statute on the subject; for the subject matter is not one of the cases barred by the statute of limitations. It is a pure Equity not within the letter or spirit of the act. It is neither an action on the case, nor any other action mentioned in the statute; nor does it embrace the subject matter of any such action. The Court is free, therefore, to exercise its discretion in the application of the maxim in Equity respecting time. But if it were on a subject matter cognizable at law, and within the cases provided for in the act of limitations, that act is as positive a bar in a Court of Equity, as in a Court of Law. For the maxim is not that Equity respects time, but that Equity follows the law. It is from these rules in Equity that a common saying has gone abroad, that the statute of limitations does not (119) run where there is a trust or a fraud: and Judge Williams said it on the bench more than once. But it is very clear that it was a mistake. For except a case in Massachusetts, and a few nisi prius cases in this State, not a case can be found where such a rule is established; nor do I know how any should be expected. When the words of the act and of its savings are so explicit, we are not at liberty to travel out of them. The Court are therefore of opinion, that the rule for a new trial should be made absolute.
Cited: Barnes v. Williams,
