may occur in which there may be such a degree of imbecility of mind, not amounting to lunacy, as to make it a question of considerable importance and difficulty for a court to determine (h). In Sturgis v. Morse (i), the Master of the Rolls considered that under the circumstances of the assignee under the insolvency in 1831, there was nothing which put him upon the knowledge, or showed that, "with reasonable diligence," he might have ascertained the fraud which had been committed upon him; but that his successor in 1840 was put upon inquiry, which, if made, would have led to ascertaining the real facts, and in truth that he had notice at that time of the fraud, and from that time the right first accrued. His Honor also said, he treated the words "reason to believe" very much as he treated those in the former part of the section," with reasonable diligence might," &c. Protection, however, is given to a purchaser for value who has not assisted, and, when he purchased, did not know of, and had no reason to believe, in the commission of the fraud. The substitution here of or for and seems to be necessary. Assistance would involve knowledge, but there might be the latter without the former, and actual knowledge supersedes mere belief, but the latter may exist without the former. If the dealings be such as fairly to lead a reasonable His obligation man to believe that fraud must have been used, he is to inquire. bound to make inquiry, and cannot shelter himself under the plea that he was not called on to ask, and did not ask, any questions on the subject. In some cases wilful ignorance is not to be distinguished in its equitable consequences from knowledge. If a person abstain from inquiry because he sees that the result of inquiry will probably be to show that a transaction in (h) Manby v. Bewicke, 3 Kay (i) Supra. & J. 342. Meaning of sect. 26; which he is engaging is tainted with fraud, his want of knowledge of the fraud will afford no excuse (k). The meaning of this provision, as regards purchasers for value, is, that in addition to being such, they must have neither assisted in, nor known of (1), nor had reason to believe in, the commission of the fraud, and that, under the general provision (m), after the expiration of twenty years from the time when the fraud is, or with reasonable diligence may be first known or discovered, such a purchaser is not to be disturbed. In Sturgis v. Morse, a person became insolvent in 1825, and made the usual conveyance of his estate to the provisional assignee, and stated in his schedule that which was false; namely, that he had no reversion. The reversion of the property in question came into possession in 1826. The insolvent mortgaged the property in 1829, and was declared bankrupt in 1831. Sir J. Romilly, M. R., held, the false statement in the schedule to be a concealed fraud, within the section 26; that the mortgagee had direct notice of it, and that, therefore, he was not entitled to priority over the assignee in insolvency. The legal estate, however, was in a trustee (n), so that the mortgage was only equitable, and qui prior est tempore potior est jure. On appeal to the lords justices they considered the case one of express trust between trustee and cestui que trust, and therefore not within the Statute of Limitations; and decreed the assignee in bankruptcy, who had obtained a conveyance of the legal estate from the heir at law of the surviving trustee in whom the property had vested, and so become the express trustee, to account for the rents accordingly without allowance of payments made to the official assignee in the bankruptcy. Considering the case as one between trustee and cestui que trust, (k) Owen v. Stoman, 4 H. L. C. 997. (1) See Sturgis v. Morse, 24 Beav. 541. (m) Sect. 24. the possession of the assignee in bankruptcy, as such trustee, was the possession of the assignee in the insolvency, as the cestui que trust, and therefore not adverse (o). The effect of the alteration made in the law by this and its effect. provision, as the law stood at the time of the passing of this statute, is to impose upon a claimant of land or of rent, on the ground of concealed fraud, more vigilance in ascertaining, and more diligence in asserting, his claim. Where the fraud is constructive only, or arises by Accruer of construction of law upon acts not done malo animo, fraud construcright when but tending to produce injury, the time runs from the tive only. period when the acts themselves were done (p); as in contracts between persons in fiduciary relations, as attorney and client (7), or trustee and cestui que trust, even under an express trust (r), not involving actual fraud. claimant's part of the In these cases length of time (of twenty years and Effect of upwards) is a bar, if the person to be barred has become ignorance of within any reasonable period cognizant of the facts; facts during for if there is the full period of twenty years, it is im- time. material that during much of that time he had no notice of the fraud. It is a common mistake that the time begins to run from only the notice of the fraud. If the full twenty years are run, and the party has during a reasonable period within that time been cognizant of the facts constituting the fraud, always sup (0) Vide Book II. Chap. V. See also In re Butler's Estate, 13 Ir. Eq. R., N. S. 451. (p) 2 Sch. & Lef. 634; Beckford v. Wade, 17 Ves. 96; Gregory v. Gregory, Cowp. 201; Jac. 631; Whalley v. Whalley, 3 Bli. 1; Champion v. Rigby, 1 Russ. & M. 539; 19 L. J., N. S., Ch. 211; Portlock v. Gardner, 1 Hare, 594; Roberts v. Tunstall, 4 Hare, 257; Marquis of Clanricarde v. Henning, 30 Beav. 175; Byrne v. Freer, 2 Moll. 176; Langley v. (4) Gregory V. Gregory, (r) Roberts v. Tunstall, supra, and cases cited. Bar in con how, and from what time. posing no disability proved, that is, legal disability, and not want of means or poverty, he is barred. The court will give him no aid, will refuse to be active, even to the extent of compelling a discovery (s). In these cases of constructive fraud, the bar is not structive fraud, imposed by, but only by analogy to, the Statute of Limitations, and the period from which the time begins to run is when the person aggrieved knew of the fraud, and was able to institute a suit to set aside the transaction involving the fraud (†). On concealed fraud as to property not In case of concealed fraud involving property other than land or charges thereon, or rent, courts of equity, within sect. 27, although not bound by this provision, ought, in the exercise of a sound discretion, to adopt, and will adopt, as a guide, the rule given by this provision (u); but, where the time it has fixed has not elapsed, subject to the exercise of their jurisdiction and powers to refuse relief on the ground of acquiescence or otherwise, for any shorter period, in accordance with the provision to be presently noticed. -the old doc trine in equity ble. The cases of fraud contemplated by this provision are still applica- only those within the jurisdiction of equity, and involving land, including charges thereon (v) and rent. Other cases of the same nature, but involving property other than land and rent, remain subject to the old doctrine, under the general jurisdiction of the courts of equity (w). And that doctrine is that, unless the person defrauded, having full information of his injuries and rights, allows time to elapse without seeking relief, time is no bar, for otherwise justice would be defeated; not because the case was not a proper one for the interference of the court, but because the deception was con (s) Byrne v. Freer, 2 Moll. 176. (t) See Blair v. Bromley, 5 Hare, 542, on app. 2 Phill. 354; Marquis of Clanricarde v. Henning, 30 Beav. 175. (u) See Brooksbank v. Smith, 2 You. & C., Ex. C. 58; Denys v. Shuckburgh, 4 Ib. 53. (v) Supra, pp. 350, 351. (w) Allfrey v. Allfrey, 1 M. & G. 87; Blair v. Bromley, 5 Hare, 542; 2 Phill. 354; Dean v. Thwaite, 21 Beav. 621. tinued by the author of the fraud so long as to enable him to reap the berefit of it (x), and the clearest title cannot be used by a person cognizant of any fraud affecting it (y).. accruer of cealed or any Courts of law make no distinction between concealed No distinction or any other fraud, and in the former kind hold the at law as to time to run, not from the discovery of a concealed right, on confraud, but, as in any other kind, from the time when the cause of action first accrues (z), and the section 26 would not be available for a claimant of land or of rent in a court of law. other fraud. 27 of c. 27 saving the courts of An important provision, in relation to rights which Effect of sect. are to be asserted in equity, is contained in the 3 & 4 Will. 4, c. 27. The section 27 of that statute is a jurisdiction of proviso that nothing in the act contained is to be equity in deemed to interfere with any rule or jurisdiction of certain cases. courts of equity in refusing relief to claimants, on the ground of acquiescence or otherwise, whose right to bring a suit may not be barred by the statute. This provision involves an ambiguity. The meaning may be either to preserve the jurisdiction in only those cases within the act, namely, those of express trust and concealed fraud involving land, including charges thereon, and rent, or merely to exclude any inference from the act to affect the jurisdiction in cases not within the act, namely, those of such trust and fraud not involving such subjects. The precise meaning of this provision has not hitherto come into question. In Thompson v. Simpson (a), the right was to land, (x) Moore v. Royal, 12 Ves. 355; Roche v. O'Brien, 1 Ball & B. 338; Blennerhassett v. Day, 2 Ib. 104; Aylward v. Kearney, Ib. 463; Copis v. Middleton, 2 Mad. 410; Trevelyan v. Charter, 4 L. J., N. S., Ch. 209; Charter v. Trevelyan, 11 Cl. & F. 714. (y) 1 Dow, 30; Allfrey v. Allfrey, 1 M. & G. 87; Rolfe v. (z) Short v. M' Carthy, 3 B. & (a) 1 Dru. & War. 459. |