to state as a general proposition what length of time will bar relief from the consequences of a fraud. It is necessarily subject to the equitable discretion of the court, and must depend upon the nature of each case and the circumstances of the parties.

stated as a limit In several cases

§ 229. Therefore no certain time can be beyond which relief will not be given. twenty years has been held to be a bar; and so where one had acquiesced for twenty-five years,2 and twenty-one years, and in another case the lapse of eighteen years was Hare, 2 R. & M. 675; Norris v. Neve, 3 Atk. 38; Pryce v. Byrn, 5 Ves. 681, cited Campbell v. Campbell, ib. 678, 682; Morse v. Royal, 12 Ves 355; Medlicott v. O'Donnell, 1 B. & B. 156; Hatfield r. Montgomery, 2 Porter, 58; Bond v. Brown, 1 Harp. Eq. 270; Edwards v. Roberts, 7 Sm. & M. 544; Peacock v. Black, Halst. Eq. 535; Steele v. Kinkle, 3 Ala. 352; Smith v. Clay, Amb. 645; Bond v. Hopkins, 1 Sch. & Lef. 413; Hovenden v. Annesley, 2 Sch. & Lef. 630-640; Stackhouse v. Barnston, 10 Ves. 466; Ex parte Dewdney, 15 Ves. 496; Kane v. Bloodgood, 7 Johns. Ch. 93; Dexter v. Arnold, 3 Sumn. 152; Decouche v. Savetier, 3 Johns. Ch. 190; Murray v. Coster, 20 Johns. 576; Prevosť v. Gratz, 6 Wheat. 481; Hughes v. Edwards, 9 Wheat. 489; Elmendorf v. Taylor, 10 Wheat. 168; Miller v. McIntire, 6 Pet. 61; Sherwood v. Sutton, 5 Mason, 143; Williams v. First Pres. Soc. 1 Ohio St. 478.

1 Smith v. Clay, 3 Bro. Ch. 639, n.; Hovenden v. Annesley, 2 Sch. & Lef. 636; Stackhouse v. Barnston, 10 Ves. 466; Pryce v. Byrn, 5 Ves. 681; Ward v. Van Bakkelen, 1 Paige, 100; Thompson v. Blair, 3 Murph. 593; Farr v. Farr, 1 Hill, Eq. 391; Field v. Wilson, 6 B. Mon. 479; Bruce v. Child, 4 Hawks, 372; Perry v. Craig, 3 Miss. 525; Ferris v. Henderson, 12 Pa. St. 54; Bank of U. S. v. Biddle, 2 Pars. Eq. 31; Walker v. Walker, 16 Serg. & R. 379; McDowell v. Goldsmith, 2 Md. Ch. 370; Norris's App. 71 Pa. St. 124. In Paschall v. Hinderer, 28 Ohio St. 568, it is said: The statute does not apply in equity to bar a trust except in three classes of cases: first, where there is a concurrent remedy at law to which there is a fixed limitation; second, where there is an open denial of the trust, with notice which requires action by the cestui que trust and afterwards a lapse of time which would amount to a bar in law; and third, where there are circumstances shown which with lapse of time raise a presumption that the trust has been extinguished.

2 Blennerhassett v. Day, 2 B. & B. 118. 8 Selsey v. Rhoades, 1 Bligh (N. s.), 1.

3

9

4

held to be a bar. So a delay of thirty years, of thirty-eight years, of forty-six years, of fifty years, of twenty-seven years, and of seventeen years,7 has been held to be such laches, if unexplained, as would be a bar to a bill for relief. Under the circumstances of other cases, a delay of twelve years, of eleven years, of eighteen years, was held to be no bar.10 In Michoud v. Girod the law was elaborately examined and stated by Mr. Justice Wayne as follows, "that within what time a constructive trust will be barred must depend upon the circumstances of the case. There is no rule in equity which excludes the consideration of circumstances, and in a case of actual fraud, we believe no case can be found in the books in which a court of equity has refused to give relief within the lifetime of either of the parties upon whom the fraud is proved, or within thirty years after it has been discovered or becomes known to the party whose rights are affected by it." 12 If there is no fraud chargeable on any party,

1 Gregory v. Gregory, Coop. 201; Jac. 631; Champion v. Rigby, 1 R. & M. 539; Roberts v. Tunstall, 4 Hare, 257.

2 Harrod v. Fountleroy, 3 J. J. Marsh. 548; Phillips v. Belden, 2 Edw. Ch. 1; Page v. Booth, 1 Rob. Va. 161; Bond v. Brown, Harp. Eq. 270. Powell v. Murray, 10 Paige, 256.

4 Maxwell v. Kennedy, 8 How. 210.

5 Anderson v. Barwell, 6 Gratt. 405.

Hayes v. Goode, 7 Leigh, 486.

Baker v. Read, 18 Beav. 398; Emerick v. Emerick, 3 Grant, 295. 8 Butler v. Haskell, 4 Des. 651; Newman v. Early, 3 Tenn. Ch. 714. Rhinlander v. Barrow, 17 Johns. Ch. 538; Mulhallen v. Murum, 3 Dr. & W. 317.

10 Bell v. Webb, 2 Gill, 263; Grisby v. Mousley, 4 De G. & J. 78. 11 Boone v. Chiles, 10 Pet. 177; Trafford v. Wilkinson, 3 Tenn. Ch. 701. 12 Michoud v. Girod, 4 How. 561; Trevelyan v. Charter, 11 Cl. & Fin. 714; Pryn v. Byrne, 5 Ves. 681; Malony v. L'Estrange, Beat. 406; Carpenter v. Canal Co. 35 Ohio St. 307. Lapse of time is no bar to a trust clearly established; and in cases where fraud is imputed and proved length of time ought not, upon principles of eternal justice, to be admitted to repel relief. On the contrary it would seem that the length of time during which the fraud has been successful is rather an aggravation, and calls more loudly for decisive and ample relief. Per Story, J., in Prevost v. 19

VOL. I.

but a simple mistake or accident is made by which a title is changed, more diligence is required, and acquiescence for a less time will bar the suffering party of his relief. An acquiescence for seventeen years,1 or for nineteen years, has been held to be fatal to an application for relief.

§ 230. The statute of limitations is not necessarily controlling, as to the time within which relief is to be sought, in the case of a constructive trust by reason of fraud. A demand may be stale, and not entitled to relief under the circumstances of the case, although much less than the time allowed by the statute of limitations has elapsed; and so a party may be entitled to relief although much more than the statute limit has gone by. In some States, however, the statute is applied to constructive trusts, unless they are concealed or undiscovered. In such States, relief must be sought within six years if it is sought by bill in equity to set aside a deed, or to establish a trust. In Pennsylvania the limit is five years.5 In other States, it has been decided, in analogy to the statute which bars a real action after twenty years, that relief must be sought within the twenty years named in the statute.6 In South Carolina, it is held that an

Gratz, 6 Wheat. 481. In this case forty years and the death of all the parties was held sufficient to warrant the presumption of the discharge and extinguishment of a trust, proved to have existed by strong circumstances. 1 Hite v. Hite, 1 B. Mon. 177; Emerick v. Emerick, 3 Grant, 295. 2 Bruce v. Child, 4 Hawks, 372.

8 Mason v. Crosby, 1 Wood. & M. 342; Piatt v. Vatier, 1 McLean, 146; 9 Pet. 405; Juzan v. Toulmin, 9 Ala. 662.

4 Farnham v. Brooks, 9 Pick. 212; Sears v. Shafer, 2 Seld. 268; Williamson v. Field, 2 Sandf. Ch. 534; Pilcher v. Flinn, 30 Md. 202.

Miller v. Franciscus, 40 Pa. St. 335; Rider v. Maul, 46 Pa. St. 376; Ashurst, App. 60 Pa. St. 290.

• Ware v. Van Blakkelen, 1 Paige, 100; Walker v. Walker, 16 Serg. & R. 379; Ferris v. Henderson, 12 Pa. St. 54; Bank of U. S. v. Biddle, 2 Pars. Eq. 31; Thompson v. Blair, 3 Murph. 593; Farr v. Farr, 1 Hill, Eq 391; Perry v. Craig, 3 Mis. 525; Field v. Wilson, 6 B. Mon. 479; Bruce v. Child, 4 Hawks, 372; McDowel v. Goldsmith, 2 Md. Ch. 370.

action to set aside a deed as fraudulent is equivalent to an action for deceit, and must be brought within the limit of the statute for personal actions. But if the fraud is unknown to the injured party, or is concealed, or he is under disability, or out of the country, or the delay is caused by the defendant, the lapse of time will not be laches which bar relief. If a party has knowledge of the fraud, a want of evidence will not excuse his delay, nor will poverty and an inability to prosecute the action. If there has been great delay, courts will require very clear evidence to impeach a transaction as fraudulent, and to convert the fraudulent party into a trustee. So, if a great length of time has elapsed, courts will sometimes grant the relief prayed for by setting aside the conveyance, but will decree an account for only six years, or from the time of filing the bill, and without costs.8

Parkam v. McCravy, 6 Rich. Eq. 143; McDonald v. May, 1 Rich. Eq. 91; Bradley v. McBride, Rich. Eq. Ca. 202, is overruled.

2 Sears v. Shafer, 2 Seld. 268; Richardson v. Jones, 3 G. & J. 163; Doggett v. Emerson, 3 Story, 700; Callender v. Calgrove, 17 Conn. 1; Phalen v. Clarke, 19 Conn. 421; Hallett v. Collins, 10 How. 174; Rider v. Bickerton, 3 Swans. 81, n; Blennerhassett v. Day, 2 B. & B. 118; Trevelyan v. Charter, 11 Cl. & Fin. 714; Bowen v. Evans, 2 H. L. Ca. 257; Warner v. Daniels, 1 W. & M. 111; Murray v. Palmer, 2 Sch. & Lef. 487; Aylewood v. Kearney, 2 B. & B. 263; Pickett v. Loggan, 14 Ves. 215; Purcell v. NcNamara, ib. 91; Ferris v. Henderson, 12 Pa. St. 49; Michoud v. Girod, 4 How. 561; Henry County v. Winnebago, &c., 52 Ill. 299.

3 Parkam v. McCravy, 6 Rich. Eq. 114.

4 Roberts v. Tunstall, 4 Hare, 357; Maxwell v. Kennedy, 8 How. 210; Locke v. Armstrong, 2 Dev. & Bat. 147; Perry v. Craig, 3 Mis. 516.

Chalmers v. Bradley, 1 J. & W. 59; Powell v. Murray, 10 Paige, 256; Bowen v. Evans, 2 H. L. Ca. 257; Westbrook v. Harwell, 2 McCord, Eq. 112; Phillips v. Belden, 2 Edw. Ch. 1; Jennings v. Broughton, 3 De G., M. & G. 126; Chandos v. Brownlow, 2 Ridg. P. C. 397; Montgomery v. Hobson, Meigs, 437; Page v. Booth, 1 Rob. 161.

Pearce v. Newlyn, 3 Madd. 189.

Pickett v. Loggan, 14 Ves. 215; Malony v. L'Estrange, Beatt. 406; Mulhallan v. Murum, 3 Dr. & W. 317.

Pearce v. Newlyn, 3 Madd. 189; Attorney-General v. Dudley, Coop.

CHAPTER VII.

TRUSTS THAT ARISE BY EQUITABLE CONSTRUCTION IN THE ABSENCE OF FRAUD.

§ 231. Trust by equitable construction. Illustration.

§ 232. Vendor's lien for the purchase-money of this description. States in which it exists.

§ 233. This lien does not contravene the statute of frauds.

§ 234. The nature of the interest of the vendor under this lien.

§§ 235-237. When the lien exists and when not.

§§ 238, 239. The parties between whom the lien exists.

§ 240. Trust by construction where a conveyance is made that cannot operate at law. § 241. Constructive trust where trust property is transferred by gift from the trustee.

§ 242. Constructive trust where a corporation distributes its capital stock without paying its debts.

§ 243. A person holding the legal title as security is a constructive trustee.

§ 244. Executor indebted to the testator's estate is a constructive trustee.

§ 245. A person may become a trustee de son tort by construction.

§ 246. An agent may become a constructive trustee.

§ 246 a. Other equitable trusts.

§ 247. A person holding deeds or papers or property belonging to another may be a constructive trustee.

§ 247 a. Other equitable trusts.

§ 231. Ir frequently happens that courts of equity construe a trust to arise from the contracts and dealings of parties, although a trust is not within their contemplation, and there is no fraud, actual or constructive. In this respect, courts of equity proceed in a manner and upon principles entirely unknown to courts of law. Thus, if parties enter into a valid contract for the sale and conveyance of lands, and the vendor neglects or declines to convey, courts of law can only give the vendee an action for damages for a breach of the contract, but the legal title to the property will not be affected; it will still remain in the vendor. A court of equity, however, looks upon that as already done, which was agreed to be done. From the date of the contract it looks

1 Fonbl. Eq. Tr. B. 1, c. 6, § 8.