Wayne County MI Archives Court.....McLean, V. Barton 1837
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Source: Cases In Chancery
Written: 1837

CASES IN CHANCERY.
FIRST CIRCUIT

Agnes McLean and others v. Jacob L. Barton and others.

Repeal of limitation acts. Whether by section three of the repealing act 
contained in the Revised Statutes of 1838 it was intended to continue in force 
the provisions of the acts of limitation repealed by that act, where the time 
had "begun to run," or whether the time prescribed in the Revised Statutes was 
intended as the period at the expiration of which the suits should be barred, 
quoere. (a.)

Lapse of time, how taken advantage of. The statutes of limitation and lapse of 
time may be taken advantage of on demurrer. (b.)

Laches a bar to relief. Where the action was not commenced for upwards of 
twenty years after the right of action accrued, and no disability or excuse 
for the delay was pretended, or new discovery of facts suggested, and both the 
person charged with committing the fraud and his grantee were dead, the court 
refused to sustain the suit, by reason of the lapse of time, and held that the 
case could not be aided by proof of facts which were not put in issue by the 
pleadings. (c.)

A court of equity will lend its aid to detect and redress a fraud, 
notwithstanding the lapse of time; but when the fraud is discovered the 
parties must act upon that discovery within a reasonable time. The party 
seeking redress should not wait until all those who were cognizant of the 
transaction have paid the debt of nature, and until no one is left to deny or 
explain the allegations, unless satisfactory excuse can be given for the delay.

The bill in this case stated that in 1816 Robert Smart, now deceased, obtained 
by fraud a deed of conveyance of lots numbers 61 and 62 in section three in 
the city of Detroit, falsely representing himself to be the assignee of 
Catharine Bailey, the assignee of John Murphy, the assignee of David McLean, 
to whom the lots had been granted by the governor and judges of the Territory 
of Michigan, acting as a land board, but that the deed making said grant was 
not delivered by the governor and judges to said McLean.

The bill prayed for a conveyance of the lots to the complainants, the widow 
and legal representatives of David McLean. 

The defendants put in a general demurrer.

A. D. Fraser, in support of the demurrer.

1. Agnes McLean, the widow of David McLean, has no apparent interest in the 
controversy, nor any equity as against the defendants or any of them, and 
therefore a general demurrer will lie to the whole bill. (3 Paige, 336.)

2. Under this demurrer, we rely on the statute of limitations as a bar to any 
relief. "From the earliest ages, courts of equity have refused their aid to 
those who have for an unreasonable length of time neglected to assert their 
claims, especially when the property in controversy has passed to subsequent 
purchasers. Although statutes of limitations do not extend to suits in 
chancery, yet courts of equity will acknowledge their obligation." (5 Peters, 
470; 6 Ib., 71.)

The bar from lapse of time need not be set up by demurrer, answer or plea, but 
may be suggested at the hearing. (1 Baldwin, 418, 419.)

The statute of limitations may be urged as a bar of the remedy in the form of 
a demurrer. (4 Wash., 639; 3 P. Wm's, 287; 2 Mad. Ch., 246.)

In 1 Peters, 360, and 3 Peters, 44, the court say, "that the statute ought to 
receive such a construction as will effectuate the beneficial objects which it 
intended to accomplish—the security of titles and the quieting of 
possessions." (7 Johns. Ch., 90, 122.)

And courts give effect to its regulations upon equitable titles. (5 Mason, 
112; 2 Jac. and Wal., 137, 191; 1 Sch. and Lef., 413, 428.)

This suit should have been instituted within ten years from the fifth of 
November, 1829. (Laws 1833, pages 408, 409.)

Now, if David McLean ever had any rights, they accrued, as appears by the 
bill, on the execution of the deed by the governor and judges to Smart, dated 
5th November, 1816. No new right accrued to the party subsequent to that time.

3. It does not appear that McLean ever acquired title to the property, for it 
is expressly stated that the deed was never delivered.

4. It is not shown by the bill that McLean was entitled to a deed for a lot in 
Detroit. (Laws 1820, page 14.)

Backus and Seaman, contra.

If a demurrer is general to the whole bill, as in this case, and there is any 
part either as to the relief or the discovery to which defendant ought to 
answer, the demurrer, being entire, must be overruled. (Mitf. Pl., 3d Am. ed., 
214.)

The deed executed by the governor and judges, and their assigning and 
designating the lots as lots to be deeded to McLean, was in pursuance of the 
statute of the United States, and of his assignment to them, and also in full 
payment for his lot, and was therefore for a valuable consideration, and 
though not good in law for want of delivery, was good in equity to pass an 
equitable title to the premises to McLean. (Wadsworth v. Wendell, 5 Johns. 
Ch., 224.)

We have alleged fraud on the part of Smart, and brought notice of the fraud 
home to the defendants, which vitiates and renders null and void the 
defendant's title. Equity grants relief not only against deeds, writings and 
solemn assurances, but also against judgments and decrees obtained by fraud 
and imposition. (Reigal v. Wood, 1 Johns Ch., 402; Barnesly v. Powell, 1 Ves., 
287; Heirs of Ware v. Brush, 1 McLean, 534-538.) The statute of limitations of 
November 6th, 1829, on which the defendants rely to bar our action in ten 
years, was repealed April 6th, 1838, which repeal took effect August 31st, 
1838. The second section of the repealing act, R. S., page 697, substituted 
the Revised Statutes, and the limitation therein provided. (R. S., page 573, 
section 1.) We come within the first section, within the twenty-five years.

The eighth section of Revised Statutes, page 575, does not subject us to the 
act of November 5th, 1829, because by the express terms of that section, " all 
causes of action accruing previous to the 31st day of August, 1838, shall be 
determined by the law under which such right of action accrued;" and our 
action accrued long prior to the passage of the act of November, 1839. (See 
Tupper v. Tupper, 3 Ohio, 387.)

We do not deny the position that courts of equity will carry into effect 
statutes of limitation (though they do not expressly apply to them) in all 
cases where the statute would be a bar at law, if an action at law was brought 
for the same subject matter. The decisions in 2d Jacobs & Walker, 191, 192; 7 
Johns. Ch., 114-126; 5 Peters, 470; 6 Peters, 71; are all put expressly upon 
the ground of the statute of limitations, and that the statute would be a bar 
to a recovery at law for the same subject matter.

A case cannot be found where mere lapse of time has been held a bar in equity, 
unless the lapse of time has been so great that the statute of limitations 
could be pleaded at law for the same subject matter, or a court of law would 
presume an extinguishment of the claim. Such was the express decision in 3 
Peer Williams, 287; and such seems to have been the grounds of the decision in 
all the cases, and particularly that in 7 Johns. Ch., 118, 122.

If the statute were a clear bar, and could be pleaded as such, it is possible 
the defendants might take advantage of it by demurrer; but they can take 
advantage of mere lapse of time, not coming within the statute of limitations, 
only on the hearing upon answer as evidence that the plaintiffs' rights have 
been extinguished by a conveyance. (14 Peters, 152.)

As to the lapse of time being presumptive evidence of the extinguishment of 
the plaintiffs' claims, see the case of Livingston v. Livingston, 4 Johns. 
Ch., 287; such presumptive evidence plaintiffs have a right to rebut, which 
they would be precluded from doing if the lapse of time could be taken 
advantage of on demurrer. The demurrer also admits the plaintiffs' claims and 
rights as stated in the bill; and the defendants are guilty of the 
inconsistency of admitting the plaintiffs' rights by the demurrer, and at the 
same time insisting that the lapse of time is presumptive evidence of an 
extinguishment of these very rights which are thus admitted.

Fraser, in reply.

It is incontrovertible that the legislature, by the provisions of the Revised 
Statutes, intended to reserve to suitors the benefits of the statutes of 1820 
and 1829 and all rights accruing under them. (Revised Laws, page 575, secs. 7 
and 8; Laws of 1833, 571, sec. 6; Laws of 1833, 408, 409.)

A reference to the provisions in regard to personal actions clearly manifests 
this intention. (Revised Laws, page 580, secs. 25, 27.)

And this view is fortified by the fact that the Revised Statutes are positive 
in their operation upon this subject, except so far as the old statutes are 
declared to be the governing rule as to past cases.

In putting a construction upon the provisions of the Revised Statutes, the 
court must compare all the parts of the statute, and the different statutes in 
pari materia, to ascertain the intention of the legislature. And may even 
recur to the situation and history of the country to ascertain the reason as 
well as the meaning of many of the provisions of a statute law.

It was clearly competent for the legislature to pass the act of 1829 now 
relied upon, and its provisions are reasonable and proper, expedient and just, 
and are fully sustained by the highest authorities. (8 Mass., 430; 2 Gallis., 
141; 3 Peters, 290, 276; 5 Ib., 464; 3 Ib., 54.)

But independent of the statute of limitations, which, it is insisted, 
constitutes a perfect bar here, this court will refuse its aid to those who 
have for an unreasonable length of time neglected to assert their rights, 
especially when the property has passed to subsequent purchasers. (10 Wheaton, 
152; 9 Peters, 416.)

This court will not entertain stale or antiquated demands, nor encourage 
laches and negligence. (1 Story on Equity, 503, and notes.)

There is no time fixed when it operates in equity. (Baldwin, 419; 2 Sumner, 
212.)

It appears by the bill that the deed was never delivered by the governor and 
judges to the complainant's ancestor (McLean), and consequently no title 
vested in him in his lifetime. (5 Mason, 60; 12 Wend., 107, 108; 6 Cowen, 619.)

The Chancellor.—This bill is filed to obtain the conveyance of lots Nos. 61 
and 62 in section 3 in the city of Detroit.

The bill alleges that the lots in question were granted to David McLean by the 
governor and judges of the then Territory of Michigan, acting as a land board; 
but that the deed making said grant was not delivered.

That Robert Smart, now deceased, in December, 1816, obtained a deed of 
conveyance of the lots in question, representing himself as assignee of 
Catharine Bailey, assignee of John Murphy, assignee of said David McLean.

It denies that McLean ever made any such assignment, and avers that the 
representations of Smart to the governor and judges were made to deceive them 
and to defraud the complainants. The first question raised under the demurrer 
is the statute of limitations.

The statute of the 5th November, 1829, required all actions of this kind to be 
commenced within ten years from the passage of the act.

This act was repealed by the Revised Statutes, the repeal to take effect on 
the 31st day of August, 1838.

The statute of the 15th May, 1820, required all suits of this character to be 
commenced within twenty years. The suit in this case was commenced on the 14th 
May, 1840.

The existing law, section 1st, part 3d, title 6, Revised Statutes, provides 
that "no person shall commence an action for the recovery of any lands, nor 
make any entry thereupon unless within 20 years after the right to make such 
entry, or bring such action, first accrued, or within twenty-five years after 
he or those from or under whom he claims, shall have been seized or possessed 
of the premises, except as hereinafter provided."

But by the 8th section of the same statute, it is provided that "where the 
cause or right of action or entry shall have accrued before the time when this 
chapter shall take effect as law, the same shall not be affected by this 
chapter, but all such causes of action shall be determined by the law, under 
which such right of action accrued."

The last section of the repealing act provides that "in any case where the 
limitation or period of time prescribed in any of the acts hereby repealed, 
for the acquiring any right or the barring any remedy, or for any other 
purpose, shall have begun to run, and the same or any similar limitation is 
prescribed in the Revised Statutes, the time of limitation shall continue to 
run and shall have the like effect as if the whole period had begun and ended 
under the operation of the Revised Statutes."

Whether this section, intended to continue in force the provisions of the acts 
of limitation thereby repealed, where the time had "begun to run," or whether 
the time prescribed in the Revised Statutes was intended as the period at the 
expiration of which the suits shall be barred, is perhaps doubtful.

What time of limitation shall continue to run? I am inclined to the opinion, 
from the whole of the provisions of the statutes, that the intention of the 
legislature was to preserve the benefit of the statutes of limitation which 
were repealed. But whichever construction may be given, will not, from the 
view I have taken of the case, change the result.

Whatever right David McLean possessed accrued in 1809. All of his right and 
title became vested in the present complainants, upon his decease, and before 
the deed from the governor and judges to Smart in December, 1816. Their right 
of action then must have accrued at that time. No new or other right has since 
accrued.

There is no allegation of any disability or excuse made or attempted for the 
delay.

The second ground urged upoh the hearing is the presumption arising from the 
lapse of time.

There seems to be now no doubt that the statute of limitations may be taken 
advantage of upon demurrer; but whether the same rule holds in this case, 
there seems to have been much diversity of opinion. One of the earliest cases 
upon the subject is the case of Deloraine v. Browne, 3 Brown C. C., 635. The 
authorities are there collected in a note to the case made by Lord Keddesdale. 
The same learned judge afterwards in commenting on this case in Hovenden v. 
Lord Annesley, 2 Schoales & Lefroy, 637, says: "In the case of Lord Deloraine 
v. Browne, an attempt was made to take advantage of the length of time by 
demurrer. The decision of that case as reported by Brown, does not convey much 
satisfaction to my mind; and perhaps the note which follows will account for 
the judgment of the court being delivered somewhat in a hurry.

"The first judgment as reported is hardly intelligible, and then there is an 
explanation given nextday; it is however, rather contrary to what Lord Kenyon 
determined in Beckford v. Close, which is cited in that case. This arose 
perhaps from Lord Thurlow not having, under the peculiar circumstances in 
which he stood, sufficiently considered that this was matter of the law of a 
court of equity. Lord Kenyon held that a demurrer to a bill, because it did 
not show a good title to redemption within twenty years, was a good demurrer. 
Why? Because it was a rule of the court that no redemption should be allowed 
after twenty years, and therefore the party should be put to bring his case 
within that rule. Lord Thurlow's opinion was given in a hurry; and many cases 
were then pending, in which much injury might have arisen to the parties if 
the judgments had not then been given; but it seems to me that Lord Kenyon's 
opinion was perfectly tenable on Lord Thurlow's own qualification; that is, 
that when a party does not, by his bill, bring himself within the rule of the 
court, the other party may by demurrer demand judgment, whether he ought to be 
compelled to answer. If the case of the plaintiff as stated in the bill will 
not entitle him to a decree, the judgment of the court may be required by 
demurrer whether the defendant ought to be compelled to answer the bill; that 
I take to be the matter of the law of a court of equity to be decided 
according to its rules and principles. However it is clear that in this case 
of Lord Deloraine v. Browne, Lord Thurlow was anxious that his overruling the 
demurrer should not be considered as deciding upon the case; and the cause 
never came on again, Lord Deloraine being advised that the length of time was 
a bar."

In the case of Cholmondeley v. Clinton, 4 Bligh, 1, it is held that where 
there has been an adverse possession, not accounted for by some disability, 
for more than twenty years, a court of equity ought not to interfere.

In the case of Tuttle v. Willson, 10 Ohio, 26, it is said: "It is indeed well 
settled, that a statute of limitations will now be applied in equity where it 
would bar the claim at law. (1 Story's Eq., 502; 2 Story's Eq., 735; 6 Peters, 
66.) The complainant filed her petition in 1838, a period of twenty-three 
years having elapsed after her cause of action arose, and, in our view, the 
statute is a bar to her claim. But if it were otherwise, the staleness of the 
demand would be fatal to its farther prosecution, and, independent of the act 
of limitation, affords a complete defense. Where rights are unreasonably 
neglected, the presumption is legitimate of an intention to abandon 
them. 'Nothing,' says Lord Camden in Smith v. Clay, 3 Brown Ch. Cases, 
640, 'can call forth this court into activity, but conscience, good faith and 
reasonable diligence: where these are wanting the court is passive, and does 
nothing. Laches and neglect are always discountenanced, and therefore, from 
the beginning of this jurisdiction, there was always a limitation of suit in 
this court.'

"This language of Lord Camden is cited with approbation by the supreme court 
of the United States. (9 Peters, 416.) In 7 Ohio, 62, the same principle is 
also recognized by this court."

Demurrers have been uniformly allowed to bills to redeem after the lapse of 20 
years.

In the case of Hovenden v. Lord Annesley, before mentioned, Lord Reddesdale 
says:

"This brings me to consider the case finally in another point of view, 
supposing the plaintiff might have had relief on the ground of fraud, if he 
had pursued his title with due diligence, the answer is, it appears that the 
alleged fraud was discovered by the party at least so long ago, that, in 1735, 
a bill was filed, imputing fraud, and impeaching the transaction on the same 
ground. Therefore, the position that fraud is not within the statute, because 
it is a secret thing, which cannot be discovered, is not applicable to this 
case; for the fraud imputed in this case is represented in the bill of 1735; 
that is, it is there stated that the release was a release which the party 
conceived he had a right to impeach on the ground of fraud, and for that 
purpose to obtain from the opposite party a discovery of all the facts and 
circumstances demonstrating the fraud. This was known to the person claiming 
in 1735. Therefore, whatever right of action might have accrued on discovering 
any particulars of the fraud different from what were apparent in 1726, must 
be taken to have accrued in 1735; but was not pursued in 1794, a period of 
near sixty years after the first bill filed. I hold it utterly impossible for 
the court to act in such a case. A court of equity is not to impeach a 
transaction on the ground of fraud, where the fact of the alleged fraud was 
within the knowledge of the party sixty years before. On the contrary, I think 
the rule has been so laid down, that every right of action in equity that 
accrues to the party, whatever it may be, must be acted upon at the utmost 
within twenty years."

That the presumption arising from lapse of time may be taken advantage of upon 
demurrer, is settled also in the case of Livingston v. Livingston, 4 Johns. 
Ch., 299; where Chancellor Kent says: "The difference between this case and 
the one decided yesterday is very material; here is a demurrer to the whole 
bill, and the great lapse of time taken as one ground in support of it, 
whereas in the other case the defendant, by his answer, admitted the covenants 
to pay and put his defense on counter claims." And effect was given to this 
defense under the demurrer. The bar from lapse of time is a conclusion from 
acquiescence, an inference from facts, which need not be set up by demurrer, 
answer or plea. (J. Baldwin, 418.)

Where there are such conflicting authorities, I feel myself at liberty to 
adopt the rule that appears to me the most reasonable and convenient. What is 
the case now presented to the court? Here has passed by a period of upwards of 
twenty-three years. No disability or excuse for this delay pretended; no new 
discovery of fraud suggested.

The parties lie by, until, as appears from the bill, Smart, the party charged 
with having committed the fraud, is dead. Campbell, his grantee, is also dead. 
No one is left to answer these charges. If the lapse of time ought to bar this 
stale claim, I see no reason or propriety in compelling these parties further 
to pursue this litigation. If any disabilities existed, it would have been 
easy to have stated them. If fraud has been recently discovered, it should 
have been so alleged.

And this allegation not having been made, the case cannot be aided by proof, 
for the proof to be admissible must be founded on some allegation in the bill 
and answer. (1 McLean's Rep., 489.)

A court of equity will lend its aid to detect and redress a fraud, 
notwithstanding the lapse of time, but when the fraud is discovered, the 
parties must act upon that discovery within a reasonable time. The party 
seeking redress should not wait for a period of between twenty-three and 
twenty-four years, until all those who were cognizant of the transaction shall 
have paid the debt of nature, and no one is left to deny or explain the 
allegation, without giving any excuse for this delay. 

Demurrer allowed.


-----------------------
(a.) Statutes of limitation are to be construed to operate prospectively only, 
unless the contrary intent clearly appears. Harrison v. Metz, 17 Mich., 377. 

(b.) Followed in Campau v. Chene, 1 Mich., 400.

(c.) See Campau v. Van Dyke, 15 Mich., 371; Disbrow v. Jones, supra, 102, and 
cases cited in note.

Additional Comments:
CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN
BY ELON FARNSWORTH, Chancellor 

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