91 Ala. 467 | Ala. | 1890
The uncontroverted facts — defendant’s purchase of the lands sued for, in March, 1863, from Thomas Hollingsworth, who was then in possession, receiving a conveyance with covenants of warranty; and his open, notorious and continuous possession ever since, claiming the land as his own,, in independent right, under color of title, for a period of more than twenty years before the commencement of the suit — fully justified the affirmative charge in defendant’s favor, unless there is evidence reasonably tending to bring the case within the exception provided by section 2630 of the Code, which, in actions seeking relief on the ground of fraud, allows the aggrieved party one year after the discovery of the facts constituting the fraud, within which to prosecute his suit. It appears from the evidence that plaintiffs were not informed of the issuance of a patent to the lands until March, 1887, about six months before the commencement of the suit. The patent was issued June 1, 1845, to William 8. Tillison, one of the-.plaintiffs, and his brother, Frank M. Tillison, who died December 29, 1845, the plaintiffs deriving title to his interest as his heirs. The fact constituting the fraud is alleged to consist in the fraudulent concealment of the patent by Hollingsworth, of which it is claimed defendant had knowledge, and in which he participated or connived.
Section 2630 being a statutory affirmation and application to legal remedies of the rule which previously prevailed in equity, where fraud had been concealed by á party against-whom a cause of action existed, with the mere modification that the suit shall be prosecuted within a specified and limited time after discovery of the facts constituting the fraud; a proper construction of the statute requires that the character of the fraud sufficient in such cases shall be determined on the same principles applicable and established under the rule in equity. Accordingly, in Underhill v. Mo. Life Ins. Co., 67 Ala. 45, it is said : “Ignorance of right, tliere being no more than mere passiveness, mere silence, on the part of his adversary, can not. be engrafted as an exception on the statute of limitations, without a destruction of its wise policy, and without an encouragement of mere negligence.” The ignorance must be superinduced by the fraud of defendant. In the absence of a fiduciary relation between the parties, imposing the moral and legal duty to disclose, there must be some act- or conduct calculated to mislead, or deceive, or to lull inquiry. Porter v. Smith, 65 Ala. 169; Holt v. Wilson, 75 Ala. 58.
The land in controversy was entered by Hollingsworth, April 1, 1843, who, on the same day, transferred and assigned the certificate of entry to William Tillison and Frank Tillison.
Affirmed.