81 Ky. 436 | Ky. Ct. App. | 1883
delivered the opinion op the court.
The important and controlling question to be determined in this case is whether an action to set aside a deed as fraudulent against antecedent debts, because it was voluntary, can be maintained against the plea of limitation more than ten years after the execution, delivery,.and recording of the-deed?
Pending a suit begun in 1857, against Thomas L. Phillips, administrator of Samuel Phillips and his sureties, Murray Phillips being one of the sureties,' on the 8th day of February, 1861, in consideration of one dollar, and the further consideration of provision for his -wife, America Phillips, and her children, conveyed by deed to John A. Shrader in trust for their sole usé and benefit, the home farm on which Murray Phillips lived, containing three hundred and sixty-seven acres.
That suit was contested by the administrator and his sure
Section 6 of article 3, chapter 71, General Statutes, provides: "In actions for relief for fraud or mistake, or damages for either, the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake; but no such action shall be brought ten years after the time of making the contract, or the perpetration of the fraud.”
Section 2, Ibid., prescribes that "an action for relief, on the ground of fraud or mistake, shall be commenced within five years next after the cause of action accrued.”
These sections relate to the same character of fraud and mistake, and must be construed together in ascertaining the time at which the cause of action accrues, and also the length of time which will bar relief in the two specified states of case named in section 6 of the statute.
By section 6, discovery of the fraud or mistake is the fact
The legislature, knowing that great contentions would arise as to the time of discovery, when limitation should be pleaded, and that old and stale transactions, deemed fraudulent or the result of mistake, might therefore vex the courts long after the facts are presumed to have passed out of memory, or beyond the ability of the parties to establish or explain them, prescribed a period within which discovery and the institution of the action should both occur. The language used for this purpose is plain, direct, and forcible. It is this: “But no such action shall be brought ten years, after the time of making the contract or the perpetration of the fraud.”
Counsel for appellees affirm that this clause of section 6 refers to actual frauds, and not to that class of frauds commonly denominated constructive or legal frauds. And we are presented with a learned philological discussion of its terms, and an array of authorities to prove their proposition, which are quite persuasive; but in view of the manifest intention of the legislature, the previous adjudications of this court, and the reason for a different construction, we are bound to hold that section 6 applies to actual and constructive frauds both.
In the case of Cotton v. Brown (MS. opinion, March.
And we think this class of legal frauds may be multiplied by the legislature to the utmost limit of the mischief where it is the same as result from acts and contracts done malo animo. The principle that every man is bound to be just before he is generous, embodied in our law of descent and distribution, is the underlying stone of our statute which places all volunteers, be they strangers or kindred, on the same footing with reference to pre-existing debts which must be discharged by the grantee, like an heir, before he is entitled to the estate. The legislature, in passing the law, saw the mischief which grew out of the selection of those whose blood and affection constituted a good consideration, and embraced them as well as mere strangers, and destroyed the temptation to select them as volunteers for a bad or dishonest purpose. It is clear, looking at the reason of the statute and the mischief it was intended to remedy, that it embraces a class of cases which belong strictly to the category of constructive frauds. It follows, therefore, that the limitation provided by section 6 of article 3, chapter 71, General Statutes, applies to this case, and nothing is left us but to enforce the plain provision of the statute, which forbids the bringing of any action for relief for fraud or mistake ten years after the time the mistake shall be made or the fraud perpetrated.