90 Mass. 130 | Mass. | 1864
The writ is dated June 17, 1862, and the trespasses which it alleges were committed in 1849 and 1850. The defendant relies on the statute of limitations, (Gen. Sts. c. 155,) and, in avoidance of this defence, the plaintiff relies on the 12th section of the statute, which provides that “ if a person liable
The question in the present case is, whether the facts stated amount to a fraudulent concealment, and in the case of Farnam v. Brooks the question of what constitutes a fraudulent concealment is discussed. It is there held that it is necessary to prove a concealment, and a discovery of the fraud within six years ; but that there is no concealment if the party possesses the full means of acquiring knowledge of the facts, and that the fraud must be actual and not merely constructive. The court cite the case of Cole v. McGlathry, 9 Greenl. 131. In that case the defendant had received of the plaintiff funds to pay certain debts, and falsely affirmed that he had paid them. It was held that though he was guilty of a breach of moral and legal duty, having added falsehood to his neglect to pay, yet it was not such a fraudulent concealment as would take the case out of the statute, because
In Way v. Cutting, 20 N. H. 187, a doctrine was held which must be regarded as limiting the doctrine of the cases cited above, if it be not inconsistent with that doctrine. It was held that in a case where the plaintiff had a right to rely upon the representations of the defendant, the fraudulent misrepresentation of the defendant amounted to a concealment, although the plaintiff had the means of testing the truth and detecting the fraud. But there is nothing in the facts stated in the present case which makes it necessary to discuss such a limitation of the doctrine, because here was no concealment by false representations, and there was no fiduciary relation between the parties.
The general ground of policy upon which all statutes of limitation stand is stated in the old maxim, Vigilantibus non dormientibus jwra subveniunt. Broom’s Max. (3d ed.) 694. While on the one hand it is important that the law should protect every citizen against fraud and wrong, on the other hand it is equally important that those who seek the aid of judicial tribunals should not sleep over their rights, but ascertain and prosecute them with vigilance. The statute of limitations therefore shuts the doors of the courts against a party unless he brings
In Farnam v. Brooks, ubi supra, the court say that full means of detecting the fraudulent concealment are the same as knowl edge.
Applying these principles to the evidence stated in the report, we find nothing to take the case out of the operation of the statute. The-plaintiff was one of the heirs of Winslow Parker and the locus in quo was part of a tract of woodland, the whole of which contained thirty-nine acres and a half. The commissioners appointed by the probate court to make partition of the estate of Winslow Parker among his heirs set off to the plaintiff in the year 1825 about seventeen acres of the northeasterly part of this tract, and a part of the remainder to her sister Nabby Parker, who afterwards married David Hale. The partition was by metes and bounds. In November 1848 the defendant and one Nutting purchased of Hale and wife the wood and timber standing on their lot, and took a lease till April 1851, to enable them to cut and remove the same. While getting it, during the years 1849 and 1850, they cut off the wood and timber from nearly seven acres of the plaintiff’s adjoining land. The evidence tends to show that Hale sold it to them, but that they were informed that he had sold a part of the plaintiff’s wood, and had some reason to believe that this was the fact, and that they were trespassers. But assuming that they were wilful trespassers, a mere wilful trespass not committed by stealth is not legally a fraud, however wrong and unjust it may be. While the defendant was cutting the wood, one Reed expressed to him the opinion that he was cutting upon the plaintiff’s land; but the defendant made no request that the fact should be concealed, and did no act to prevent the plaintiff from obtaining knowledge of it. The plaintiff was at that time
Exceptions sustained.