Зображення сторінки

sumes a very different aspect. From unreasonable delay on the part of the vendor to pursue his claim, a presumption arises either that the fraud charged never existed, or that after it was committed, the party, for valuable consideration, had confirmed the purchase, had released his equity, or had consented to abandon it(1). And if it can be shown, that the vendor was acquainted with the fact of the imposition, and has been since free from the purchaser's control, -under these circumstances, a lapse of twenty years where the property is land(a) (2), and of six years, as it should seem, where it is personal estate(6), will extinguish his right to equitable relief (3).

The period from which acquiescence is calculated where the bargain is obtained through undue advantage of the pecuniary difficulties of a vendor aware at the time of the sacrifice of his interests, is the completion of the purchase(c). The subsequent con

(a) Townshend v. Townshend, (c) Hovenden v. Lord Annesley; 1 Bro. C. C. 550 ; 1 Cox, 28, S. Medlicott v. O'Donnell, supra ; C. ; Hovenden v. Lord Annesley, Western v. Cartwright, Sel. Cha. 2 Scho. and Lefr. 607-610, 636 ; Ca. 34 ; Earl of Deloraine v. Medlicott v. O'Donnel, 1 Ball and Browne, 3 Bro. C. C. 633 ; Hickes Beat. 156, 165-6 ; Whalley v. v. Cooke, 4 Dow. 16. See also Whalley, 3 Bli. 1.

Bicknell v. Gough, 3 Atk. 538, (6) Booth v. Earl of Warring- and Lord Redesdale's observations ton, 4 Bro. P. C., by Toml. 163; thereon, 2 Scho. and Lefr. 635; South Sea Company v. Wymond- Morony v. O'Dea, 1 Ball and Be. sell, 3 P. Wms. 143.

609 ; likewise 2 Ball and Be. 118;

(1)Bunce et al. v. Walcott, 2 Conn. R. 27. Prevotz v. Gratz, 6 Wheat. 481.

(2) Ward v. Van Bakkelen, 1 Pagie, Ch. 100. Prevotz v. Gratz, 6 Wheat. 481.

(3) Walker v. Walker, 16 Serg. & Rawle, 379.

tinuance [*]of his difficulties forms no excuse(a); for, generally speaking, the court does not consider the embarrassments of its suitors as any legitimate reason for their neglect. “ If it did, there would be an end of all limitation to actions in cases of distressed persons; should relief be given after twenty years on the ground of distress, so it might after thirty, forty, or fifty years; there would be no restriction whatever, and all property 'would be thrown into confusion(6). Another argument is, that Parliament has not thought fit to admit poverty into the class of legal disabilities ; and equity, in dispensing its aid, adheres in this as in other particulars, as nearly as possible to the provisions of legislature.

[*]So long as the vendor remains ignorant of the fraud which has been practised upon him, no lapse of

and Winchcombe v. Hall, 1 Cha. 637-8. That notwithstanding the Rep. 40. It is observable that, above decision by Lord Thurlow, although in Deloraine v. Browne, and the decision in Gregor v. where the bill was demurred to on Molesworth, by Lord Hardwicke the ground of time, Lord Thurlow (2 Ves. 109,) laches by a plainoverruled the demurrer, thinking tiff may be taken advantage of by the length of time could not be demurrer, see Lord Redesdale's taken advantage of in that way, 'Treatise on Pleading, 3d Edit. 173; though it might perhaps at the his Lordship’s remarks, 2 Scho. hearing, -and the principle ques. and Lefr. 637; and Mr. Belt's tion therefore between the parties note, 3 Bro. C. C. 633. remained undecided ; yet this case (a) An exception to this rule has always been considered, and occurs where the sale is of a rehas been even judicially cited, as versionary interest. See Gowland an authority to show that the long v. De Faria, 17 Ves. 20; Roche forbearance of a plaintiff consti- v. O'Brien, 1 Ball and Be. 330 ; tutes an answer to his demand. and infra 398. See per Sir R. P. Arden, M. R., (6) Per Lord Redesdale, 2 Scho. 4 Bro. C. C. 268. and per Lord and Lefr. 640. See also Hickes v. Redesdale, 2 Scho. and Lefr. Cooke, 4 Dow. 16.

time will render the purchaser's title valid; for until discovery the right of the party does not completely arise(a), and to presume a release or dereliction before such discovery would be absurd. As the conscience of the purchaser moreover is affected by the fraud, he cannot set up the remoteness of the transaction as a bar in his favour, since it is an invariable rule in equity that frauds unknown shall not be barred by time.

So, in the case of a sale obtained through abuse of influence,-until that influence ceases, the lapse of time will not operate to the advantage or prejudice of either party.

The acquiescence of the seller, while he is prevented from showing his repugnance, clearly cannot be presumed; and the continuance of the controul is a fact which tends only more strongly to

prove the reasonableness and necessity of the principle(6).

When, however, the vendor becomes conusant of the fraud, and is freed from the controul of the purchaser, he no longer continues an object of extraordinary favour. It follows, that for any delay which then takes place, he alone must suffer. Indeed, if under these circumstances long quiescence did not preclude redress, the very imputation of fraud might be the means of committing a fraud; for in the interim [*]that evidence may be lost, by which such imputa

(a) Roche v. O,Brien. 1 Ball and (6) Alden v. Gregory, 2 Eden, Be. 330 ; Dunbar v. Tredennick, 280 ; «Roche v. O'Brien, 1 Ball 2 Ib. 304. See also 2 Ball and and Be. 330; Hatch v. Hatch, 9 Be. 129.

Ves, 292.

tion might at first have been repelled(a). After a lapse of twenty years, therefore, to use the words of Lord Redesdale(b), the opposite party has a right to say,-You shall not bring this matter into discussion now, when it is only through your own neglect that you did not do so within the time limited by the statute(1).

In this place, as serving further to illustrate the principle under consideration, it may be remarked, that titles to leasehold property, which have been fraudulently obtained from an executor, have on some occasions been held unimpeachable after long unmolested enjoyment. Executors, it is notorious, have a right by virtue of their office, to sell or mortgage any part of the personal estate,-even such part as may have been specifically bequeathed ; and the purchaser or mortgagee, under ordinary circumstances, is not obliged to inquire whether the sale or mortgage be necessary. But this rule obtains only where the object of the executor is unknown. For should the purchaser or mortgagee proceed after having notice that the act intended is a fraud on particular legatees, he then becomes implicated ; and equity, on the ground of his participation in the fraud, will hold him to take only as trustee(2). The case, it is obvious, is still stronger where the transaction originated in a

(a) i Fonbl. on Equity, 5th Edit. 331 ; 3 Atk. 39.

(6) 2 Scho, and Lefr. 634. See also 1 Ball and Be. 166.

(1) Prevotz v. Gratz, 6 Wheat. 481.

(2) Graff dci v. Castleman, fc. 5 Rand. 195. Knight v. Yarborough, 4 Rand. 566. Dodson fe. v. Simpson, 2 Rand. 294.

collusive arrangement between the executor and the purchaser (*Jor mortgagee, for their mutual benefit. Nevertheless, in both these cases it has been held, that the persons beneficially interested must, in order to obtain the assistance of the court, pursue their rights within a reasonable time ; otherwise that the long delay will furnish such a presumption of acquiescence as, unless satisfactorily accounted for, the purchaser or mortgagee may sucoessfully use in defence. And it seems that for this purpose, supposing the defrauded parties are aware of the fact, twenty years will be sufficient. We may, add, that it is indifferent whether the interests of the legatees be immediate or reversionary(a)(1).

II. As to Purchases by Trustees. With a view to prevent as far as possible the abuse of confidence. Equity has laid down the rule (from which rule, except under its own superintendence, or in certain cases where the consent of the cestui que trust being sui juris is expressly given, no deviation is ever made), that no person, who as trustee or through any confidential employment relative to an estate which is about to be sold has acquired a knowledge of its peculiar advantages, shall be permitted either directly or indirectly to become the purchaser(2). The per

(a) Bonney v. Ridgard, 1. Cox, 125. See also per J. Leach, V. 145; 17 Ves. 97, 98, cited, S. C.; C., 5 Mad. 55. Andrew v. Wrigley, 4 Bro. C. C.

(1) Bunce et al. v. Walcott, 2 Conn. Rep. 27. (2) McCarts v. Bee, 1 McCord, Ch. 389.

« НазадПродовжити »