53 Ga. 371 | Ga. | 1874
Lead Opinion
It was not upon the ground that the plaintiff was under disability : Lord Redesdaee, in Hoveden vs. Lord Annesley, 2 Sch. and Lef. R., 634, lays down the rule and the reason of it as follows: “That the statute ought not i;n conscience to run; the conscience of the party being so affected that he ought not to be allowed to avail himself of the lapse of time.” Judge Story in the case of Pratt vs. Northam, 5 Mason Rep., 110, enunciates a similar doctrine. That was a case where an administrator had got into his hands, assets, bonds, etc., belonging to the intestate in England, which were not known by the heirs to have belonged to him, and the heirs had only lately discovered the fact, the administrator having made no return of such bonds, and fraudulently concealed, not only that he had them, but that they, in fact, existed. The suit was against the administrators of the security on his bond, and Judge Story says: “It is said here is a case of fraud, and fraud constitutes, in equity, a good exception to the statutes of limitation. But then the fraud must be the fraud of the party setting up the bar of the statute. If this statute is to be avoided by any fraud it must be the fraud of the parties themselves, and not of third persons with whom they have no connection or privity. There is no pretence in this case of any fraud on the part of the testator of these defendants, the security.” As I have said, the rule does not turn on the disability of the plaintiff, but on the fraud of the defendant. He, the guilty party, shall not be allowed to say that his own concealment of the plaintiff’s rights shall work in his favor. And the very -words of this section of the Code indicate this idea. It is not put or classed with disabilities, but under the head of exceptions, and the language is not
Judgment affirmed.
Dissenting Opinion
dissenting.
It appears from the record in this case that William Bond was the owner of a city lot in the city of Macon, and died in the possession thereof, leaving one child, Mrs. Kah, formerly Mrs. O’Connor, who had two children by O’Connor, her former husband, named William ancl Bridget. William died in 1860; Bridget intermarried with Dillard, and died in 1863. Bond, the father of Mrs. Kah, died in 1851. In September, 1852, Mrs. Kah conveyed the city lot in dispute, by deed, to Thompson. In 1859, Thompson conveyed the lot, by deed, to Blake.. In 1869, Blake conveyed the lot, by deed, to Jones, and in December, 1869, Jones conveyed the lot, by deed, to the Central Railroad and Banking Company, the present defendant. Within a year or two after the death of Bond, Dillard, the husband of Bridget, who is now in life, took out
Was the plaintiff in this case excepted from the operation of the statute of limitations, or prescription, until the discovery of the fraud? The 2931st section of the Code declares that if the defendant, or those under whom he claims, has been guilty of a fraud by which the plaintiff has been debarred or deterred from his action, the period of limitation shall run only from the time of the discovery of the fraud. The 2688th section declares that a prescription does not run in cases of fraud debarring or deterring the other party from his action, until the fraud is discovered. This section relating to prescription, it will be observed, does not restrict the fraud by which the plaintiff has been debarred or deterred from his action, to the fraud of the defendant, or those under whom he claims, but declares in general terms that a prescription does not run in cases of fraud debarring or deterring the other party from his action. The defendant claims the benefit of the prescription as running in its favor. The plaintiff is the