known or discovered: provided that nothing in this clause contained shall enable any owner of lands or rents to have a suit in equity for the recovery of such lands or rents, or for setting aside any conveyance of such lands or rents, on account of fraud against any bonâ fide purchaser for valuable consideration, who has not assisted in the commission of such fraud, and who at the time that he made the purchase did not know and had no reason to believe that any such fraud had been committed (r).

(r) An ejectment bill may properly be filed in a court of equity on the ground of fraud under this section. (Chetham v. Hoare, L. R., 9 Eq. 571.) But a case of concealed fraud cannot be set up on petition. (Ex parte Breach, 12 W. R. 769.)

3 & 4 Will. 4,

c. 27, s. 26.

Concealed fraud may be set up by equity, but not on

ejectment bill in

petition.

what is concealed

This section does not mean the case of a party entering wrongfully into possession, but it applies to a case of designed fraud, by which a party, fraud within this knowing the rightful owner, conceals the circumstances giving the right, and section. who by means of such concealment is enabled to enter and hold. (Petre v. Petre, 1 Drew. 397. See Dean v. Thwaite, 21 Beav. 621.)

In 1825, A., on his insolvency, omitted from his schedule (which he verified on oath) an estate to which he was entitled. In 1853, his assignee filed a bill against the assignees under a subsequent bankruptcy and others for the recovery of the property. It was held, that there had been a concealed fraud within this section. (Sturgis v. Morse, 24 Beav. 541.) This decision was affirmed on grounds independent of the question of concealed fraud. (3 De G. & J. 1.)

To prove that a fraud was concealed within the meaning of this section, it is not sufficient to show that the party was in such an imbecile or uncultivated condition of mind that it was scarcely possible, though the alleged fraud was by an open act, that he should have discovered the fraud, if the condition of his mind was not that of actual lunacy; for the court cannot possibly estimate for this purpose the chance which the state of mind and education of a man may afford of his making such discovery, and is therefore compelled to assume that every one, not actually a lunatic, is competent to judge of and to obtain advice concerning his rights, and to assert them if necessary. Therefore a suit cannot be maintained in equity, to set aside a compromise of an action to recover large estates made eighty years before, upon the ground that the compromise was a fraud upon the plaintiff in the action, and that he was a man of such dull intellect, that, though cognizant of all the facts, it was necessarily a concealed fraud as to him. (Manby v. Bewicke, 3 Kay & J. 342.)

It is the duty of the court, when transactions of long standing are brought before it, most anxiously to weigh all the circumstances of the case, and to consider what evidence there may have been, which from lapse of time may be lost. But beyond this, in cases of fraud, time has no effect. (Charter v. Trevelyan, 4 L. J. (N. S.) Chanc. 209; 11 Cl. & Fin. 740.) Circumstances of a fraudulent nature relating to a sale were not discovered until thirty-seven years after the date of the conveyance, and it was held that they furnished an answer to the objection arising upon the length of time during which the transaction had remained unimpeached. (Ib.)

The procuring instruments of conveyance and devise to be executed by a person of unsound mind is a fraud within this section of the act. (Lewis v. Thomas, 3 Hare, 26.) As to conveyance by a lunatic, see Price v. Berrington, 3 Mac. & G. 486.

As to what constitutes reasonable diligence in the discovery of concealed Reasonable dilifraud within this section, see Chetham v. Hoare, L. R., 9 Eq. 571; Vane gence in discovering fraud. v. Vane, 21 W. R. 66.

Though courts of equity will interpose in order to prevent those mischiefs When time bars which would probably result from persons being allowed at any distance of in cases of fraud, time to disturb the possession of another, or to bring forward stale demands; yet as its interference proceeds upon principles of conscience, it will not encourage nor in any manner protect the abuse of confidence, and therefore

S.

P

c. 27, s. 26.

3 & 4 Will. 4, no length of time will bar a fraud. (1 Fonbl. Eq. 331; Cotterill v. Purchase, Forrest, 61; Alden v. Gregory, 2 Eden, R. 230; Whalley v. Whalley, 1 Mer. 436; S. C., 3 Bligh, 1. As to length of time being no bar in cases of fraud, see also Deloraine v. Browne, 3 Br. C. C. 633; Smith v. Clay, Ib. 639, n.; Hercy v. Dinwoody, 4 Br. C. C. 258; 2 Ves. jun. 87; Yate v. Moseley, 5 Ves. 480; Moth v. Atwood, 5 Ves. 845; Purcell v. Macnamara, 14 Ves. 91; Beckford v. Wade, 17 Ves. 87; Hovenden v. Lord Annesley, 2 Sch. & Lef. 607, 630; Moore v. Blake, 1 Ball & B. 62; Medlicott v. O'Donnell, Ib. 156; Gould v. Okenden, 4 Br. P. C. 198, Toml. ed.; Morse v. Royal, 12 Ves. 355; Pickering v. Lord Stamford, 2 Ves. jun. 272; Byrne v. Frere, 2 Molloy, 176; Hatch v. Hatch, 9 Ves. 292.) An agreement on settlement of family disputes, where one party had been guilty of gross fraud and concealment of the rights of the other, was set aside after a great length of time. (Gordon v. Gordon, 3 Swanst. 400.) As to frand in the case of levying fines, see Langley v. Fisher, 9 Beav. 90; 15 L J., Ch. 73. A court of equity will not impeach a transaction on the ground of fraud, where the fact of the alleged fraud had been within the knowledge of the party many years: but held that every new right of action in equity which accrued to the party must be acted on at the utmost within twenty years, except in the case of a trustee whose possession was consistent with the title of the claimant. (2 Sch. & Lef. 637.) Where a party is to be constituted a trustee, by the decree of a court of equity, founded on fraud or the like, his possession is adverse, and the Statute of Limitations will run from the time the circumstances of the fraud were discovered. (2 Sch. & Lef. 633; 2 Ball & B. 129; Brooksbank v. Smith, 2 Y. & Coll. 58.) Thus, where the facts constituting the fraud had been in the knowledge of the party, and he had laid by for twenty-five years, relief was refused. (Blennerhasset v. Day, 2 Ball & B. 118.) But a party who had received money under a misapprehension of his rights was held not bound by it, as in the case of a contract for a disputed title, or the compromise of a litigated right. (lb. 128.) The filing a bill within twenty years, although there has been some delay in prosecuting it, prevents time from operating as a bar. (Cas. temp. Talbot, 63.)

Saving the jurisdiction of equity

on the ground of acquiescence or otherwise.

Acquiescence imports knowledge.

Acquiescence generally.

Acquiescence.

27. Provided always, and be it further enacted, that nothing in this act contained shall be deemed to interfere with any rule or jurisdiction of courts of equity in refusing relief, on the ground of acquiescence or otherwise, to any person whose right to bring a suit may not be barred by virtue of this act (s).

(s) If a party, having a right, stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word acquiescence. (Duke of Leeds v. Earl Amherst, 2 Phill. C. C. 123.) Parties cannot be said to acquiesce in the claims of others, unless they are fully cognizant of their right to dispute them. (Marker v. Marker, 9 Hare, 16.) Where executors took upon themselves to distribute the personal property of a testator, in thirds, without consulting a legatee, and the shares were paid without her authority, upon her supposition that their construction of the will was right, it was held, that the legatee was not precluded from relief on the discovery of the mistake of the executors. (Newton v. Ayscough, 19 Ves. 539; Brooksbank v. Smith, 2 Y. & C. 59. See Knatchbull v. Fearnhead, 3 My. & Cr. 122.) Every presumption that can be fairly made will be raised against a stale demand. It may arise from the acts of the parties, or the very forbearance to make the demand affords a presumption either that the claimant is conscious it is satisfied, or intended to relinquish it. (Pickering v. Lord Stamford, 2 Ves. jun. 583.)

Acquiescence for nearly fifty years in a mortgage transaction, liable to have been impeached, was held a bar to relief. (Hicks v. Cooke, 4 Dow.

17.) Long acquiescence by a party acquainted with the facts is a bar to equitable relief for setting aside a lease, upon the ground of fraud or mistake, although it might have been otherwise if the parties interested had questioned the lease recently after the transaction. (Selsey v. Rhodes, 2 Sim. & Stu. 41; 1 Bligh, N. S. 1.) An heir at law has also been held not entitled to an issue devisavit vel non after twenty years' acquiescence in his ancestor's will. (Tucker v. Sanger, M'Clel. 424; 13 Price, 119.) An acquiescence of twenty-three years, with a knowledge of the will, is a good bar to a claim by a residuary legatee against an exccutor for an account, on the ground of neglect or misfeasance, and that independently of the stat. 3 & 4 Will. 4, c. 27. (Portlock v. Gardner, 11 L. J. (N. S.) Ch. 313.) A wife was held to be bound by the declaration of her husband alone of the uses of a fine levied of her lands after having acquiesced fifteen years from his death. (Swanton v. Raven, 3 Atk. 105.) Where the shareholders of a canal had acquiesced for forty-seven years in an agreement for letting tolls not warranted by an act of parliament, it was held, that it was not competent for the shareholders to impeach such agreement in respect of the public interest. (Gray v. Chaplin, 2 Russ. 126.) Acquiescence will not be held to have taken place, so long as the same circumstances of undue influence on one side, and distress on the other, in which the oppression commenced, continue to operate. (Purcell v. Macnamara, 14 Ves. 106, 121, 122.)

Length of time, when it does not operate as a statutory or positive bar, operates simply as evidence of acquiescence. A bar by length of time and by acquiescence are said not to be two distinct propositions. They constitute one proposition, and that proposition, when applied to a question of a breach of trust, is, that the cestui que trust assented to the breach of trust. A cestui que trust, whose interest is reversionary, is not bound to assert his title until it comes into possession, but the mere circumstance that he is not bound to assert his title does not bear upon the question of his assent to a breach of trust. He is not less capable of giving such assent when his interest is in reversion than when it is in possession. But where the trust is definite and clear, it seems that a breach of trust will not be held to have been sanctioned or concurred in by the mere knowledge and non-interference on the part of the cestui que trust before his interest has come into possession. (Per Turner, L. J., Life Association of Scotland v. Siddal, 3 De G., F. & J. 72, 74. See Brown v. Cross, 14 Beav. 105; March v. Russell, 3 M. & Cr. 31.) Acquiescence imports knowledge, for a man cannot be said to have acquiesced in what he did not know; and in cases involving a breach of trust, acquiescence imports full knowledge. It is a settled rule that a cestui que trust cannot be bound by acquiescence, unless he has been fully informed of his rights, and of all the material facts and circumstances of the case. (Per Turner, L. J., Life Assurance of Scotland v. Siddal; Cooper v. Greene, 3 De G., F. & J. 74.) Acquiescence may have the same effect as an original agreement, and may bar the right of the party to relief in equity. But to fix acquiescence upon a party, it should unequivocally appear that he knew the fact upon which the supposed acquiescence is founded, and to which it refers. The doctrine of acquiescence does not apply where all the parties are under the influence of a common mistake. (2 Mer. 362.) In the case of a trustee's purchasing the trust property, the question of acquiescence cannot arise until it is previously ascertained that the cestui que trust knew that his trustee had become the purchaser, for while the cestui que trust continues ignorant of that fact there can be no laches in not quarrelling with the sale upon that ground. (Randall v. Errington, 10 Ves. 427, 428; Morse v. Royal, 12 Ves. 335.) Lord Chancellor Eldon said, "It is established by all the cases, that if the cestui que trust joins with the trustees in that which is a breach of trust, knowing the circumstances, such a cestui que trust can never complain of such a breach of trust, and either concurrence in the act, or acquiescence without original concurrence, will release the trustees; but that is only a general rule, and the court must inquire into the circumstances which induced concurrence or acquiescence; recollecting, in the conduct of that inquiry, how important it is on the one hand to secure

3 & 4 Will. 4,

c. 27, s. 27.

Acquiescence in breaches of trust.

3 & 4 Will. 4, c. 27, s. 27.

Laches.

the property of the cestui que trust, and on the other not to deter men from undertaking trusts." (3 Swanst. 64.) All cestui que trusts, who (being of age and under no incapacity) have had full information of the conduct of their trustees, which was liable to objection, and openly or tacitly acquiesced in it during a considerable time, are held to have authorized or adopted such conduct, and precluded themselves from all remedy in that respect. (Brice v. Stokes, 11 Ves. 319; Walker v. Symonds, 3 Swanst. 64; Ryder v. Bickerton, Ib. 83, n.; Underwood v. Stevens, 1 Mer. 712; Trafford v. Boehm, 3 Atk. 444.) See further, as to acquiescence in breaches of trust, Lewin on Trusts, 661, et seq., 5th ed.

"Where there is a Statute of Limitations the objection of simple laches does not apply until the expiration of the time allowed by the statute. But acquiescence is a different thing, it means more than laches. If a party who could object lies by, and knowingly permits another to incur an expense in doing an act under a belief that it would not be objected to, and so a kind of permission may be said to be given to another to alter his condition, he may be said to acquiesce: but the fact of simply neglecting to enforce a claim for the period which the law permits him to delay without losing his right, I conceive cannot be any equitable bar." (Per Lord Wensleydale, Archbold v. Scully, 9 H. L. 383.) A testator bequeathed to his widow a pecuniary legacy and a life annuity. She survived him twenty-eight years, and after her death her executrix filed a bill for their recovery. No explanation was given of the circumstances, and no proof of any intermediate payment. The bill was dismissed on the ground of great laches. (Pattison v. Hawkesworth, 10 Beav. 375.) See Sibbering v. Earl of Balcarras, 3 De G. & Sm. 737, where the court refused to entertain a suit for setting aside the sale of a reversionary interest after the lapse of several years; and see the remarks of Lord St. Leonards in Spackman v. Evans, L. R., 3 H. L. 220.

Though the rule as to limitation by time does not apply in cases of express trust, yet as to them the general rule in equity is that stale demands are not to be encouraged. (M'Donnell v. White, 11 H. L. C. 570.)

Mortgagor to be barred at the end of twenty years from the time when the mort

gagee took posses

sion, or from the last written

acknowledgment.

7. Limitation of Time between Mortgagor and Mortgagee. Time of Limitation fixed-Twenty Years.

28. When a mortgagee shall have obtained the possession or receipt of the profits of any land, or the receipt of any rent, comprised in his mortgage, the mortgagor, or any person claiming through him, shall not bring a suit to redeem the mortgage but within twenty years next after the time at which the mortgagee obtained such possession or receipt, unless in the meantime an acknowledgment of the title of the mortgagor or of his right of redemption shall have been given to the mortgagor, or some person claiming his estate, or to the agent of such mortgagor or person, in writing signed by the mortgagee or the person claiming through him; and in such case no such suit shall be brought but within twenty years next after the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given; and when there shall be more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors or persons, or his or their agent, shall be as effectual as if the same had been given to all such mortgagors or persons; but where there shall be more than one mortgagee, or more than one person claiming the estate or in

terest of the mortgagee or mortgagees, such acknowledgment, 3 & 4 Will. 4, signed by one or more of such mortgagees or persons, shall be c. 27, s. 28. effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage-money or land or rent by, from or under him or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the person or persons entitled to any other undivided or divided part of the money or land or rent; and where such of the mortgagees or persons aforesaid as shall have given such acknowledgment, shall be entitled to a divided part of the land or rent comprised in the mortgage, or some estate or interest therein, and not to any ascertained part of the mortgaged money, the mortgagor or mortgagors shall be entitled to redeem the same divided part of the land or rent on payment, with interest, of the part of the mortgage-money which shall bear the same proportion to the whole of the mortgagemoney as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage (t).

(t) Doubts were entertained whether a mortgagee, who was not proved to have been in possession or receipt of the profits within twenty years, and to whom no acknowledgment in writing had been given according to the 14th section (ante, p. 182), was not barred of his ejectment by the 2nd and 3rd sections, inasmuch as the mortgagee's right had accrued more than twenty years previously. (Doe d. Jones v. Williams, 5 Ad, & Ell. 291.) These doubts have been removed by the following enactment.

Lege mortgage.

c. 28.

in the definition in 3 & 4 Will. 4, bring actions to

Mortgagees with

c. 27, s. 1, may

recover land within twenty years

after last payment of principal or

interest.

By statute 7 Will. 4 & 1 Vict. c. 28, reciting that, "doubts 7 Will. 4 & 1 Vict. have been entertained as to the effect of a certain act of parliament made in the third and fourth years of his late Majesty King William the Fourth, intituled An Act for the Limitation of Actions and Suits relating to Real Property, and for simplifying the Remedies for trying the Rights thereto,' so far as the same relates to mortgages; and it is expedient that such doubts should be removed:" it is declared and enacted, "that it shall and may be lawful for any person entitled to or claiming under any mortgage of land, being land within the definition contained in the first section of the said act, to make an entry or bring an action at law or suit in equity to recover such land at any time within twenty years next after the last payment of any part of the principal money or interest secured by such mortgage, although more than twenty years may have elapsed since the time at which the right to make such entry or bring such action or suit in equity shall have first accrued, any thing in the said act notwithstanding."

Where a man by his will creates particular estates and remainders and Cases as to mortthen mortgages his estate, of course he and his devisees have only in com- gagor's rights.

mon the period of time to claim against the mortgagee in possession, and Sect. 28.

the will cannot give to the devisees successive rights. (Browne v. Bishop of Cork, 1 Dru. & Wal. 700; Sugd. R. P. Stat. 38. See Raffety v. King, 1 Keen, 601.)