PART I. CHAPTER II. Div. II. SECT. 1. kin, if the purchaser bought with notice or knowledge that the transaction amounted to a devastavit or misapplication of the assets (2). However the power of the executor or administrator over the estate is extremely ample both at law and in equity; and necessarily so, in order to the due discharge of their duties; and the court will require a very strong case to be established, before it will interfere to question a disposition of the assets by a person filling either of those situations (a). We have seen, that in some cases, such as in transactions with an Fraud presumed expectant heir, or between guardian and ward, trustee and cestui que trust, or solicitor and client, the relation between the parties is of itself sufficient to raise a presumption against the propriety of the transaction, so as to throw upon the parties, who endeavour to support it, the burden of establishing its validity (b). in some cases. But in general the fraud must be proved. In other cases however where no such presumption exists, those, who seek to displace the claim of the persons, in whom the legal title is vested, on the score of fraud, must establish by sufficient evidence, the facts, on which they rest their title to relief. With regard to the mode of proving the fraud, it was laid down by Parol evidence Lord Hardwicke, "that the court has adhered to this principle, that the Statute of Frauds should never be understood to protect fraud; and therefore wherever a case is infected with fraud, the court will not suffer the statute to protect it, so as that any one should run away with a benefit not intended '" (c). Therefore wherever a case of fraud is made by the bill, parol evidence will be admitted for the purpose of establishing that case; even though the effect of such evidence be to alter or vary a written instrument, and although the benefit of the statute be insisted upon by the defendant (d). For as was said by Lord Thurlow, "The moment you impeach a deed for fraud, you must either deny the effect of fraud on a deed, or you cannot but be under the necessity of admitting parol (a) Ibid; Crane v. Drake, 2 Vern. 616; Ewer v. Corbet, 2 P. Wms. 148; Newland v. Champion, 1 Ves. 105; Jacomb v. Harwood, 2 Ves. 268; Emlslie v. M'Aulay, 3 Bro. C. C. 626; Utterson v. Maire, 4,ib. 270; and 2 Ves. jun. 95; Scott v. Tyler, 2 Dick. 725; Bonney v. Ridgard, 1 Cox, 145; Dickenson v. Lockyer, 4 Ves. 42, 3; Doran v. Simpson, ib. 665; Hill v. Simpson, 7 Ves. 152; M'Leod v. Drummond, 14 Ves. 353, and 17 Ves. 172. (b) Davis v. D. of Marlborough, 2 Sw. 141; Hunter v. Atkins, 3 M. & K. 135, vide supra. (c) In Reech v. Kennegate, 1 Ves. 125; and see Hutchins v. Lee, 1 Atk. 448; Montacute v. Maxwell, 1 P. Wms. 620; Walker v. Walker, 2 Atk. 98; Young v. Peachy, 2 Atk. 258. (d) Sellack v. Harris, Vin. Ab. 521; Thyn v. Thyn, 1 Vern. 296; Oldham v. Lichford, 2 Vern. 506; Drakeford v. Wilks, 3 Atk. 539; Reech v. Kennegate, 1 Ves. 125, and Ambl. 67; Irnham v. Child, 1 Bro. C. C. 93; Cripps v. Jee, 4 Bro. C. C. 475; Filmer v. Gott, 7 Bro. P. C. 70; Pember v. Mathers, 1 Bro. C. C. 52; Wilkinson v. Bradfield, 2 Vern. 307; Young v. Peachy, 2 Atk. 257. admissible to prove the fraud. v. Drummond, 14 Ves. 361. Although this distinction was doubted by Lord Eldon in the same case of McLeod v. Drummond, when it came before him on appeal, 17 Ves. 169, 170: and see 1 Mad. Ch. Pr. 382. PART I. evidence to prove it" (e). But in all these cases the bill must contain CHAPTER II. allegations of fraud (f). SECT. 1. Or to prove mistake or surprise. But such evi dence not regarded with favour. And confined strictly to proof of fraud. Declarations subsequent to the deed are And the same rule prevails, where relief is sought on the ground, that through mistake surprise or accident the instrument is framed contrary to the intention of the parties. In such cases parol evidence will be received to establish the plaintiff's title to the relief prayed. "How" observed Lord Hardwicke in Baker v. Paine, "can a mistake in an agreement be proved but by parol evidence?" (g)*. However even in the case of fraud, parol evidence is not regarded with favour, and the court will not act upon it, if it be not strong irrefragable evidence (h); or if it be contradicted or controverted by other testimony (i). And where an important provision in a deed was omitted intentionally by the parties (h), whether through a mistake of the law (l); or through carelessness or inattention at the time of executing the deed (m); and no fraud is charged, or proved against the defendant, who denies by his answer the existence of any such provision, parol evidence will not be admitted to add to or vary the instrument. It has been decided also that where a deed is sought to be impeached on the ground of fraud in obtaining it, declarations by the not admissible. party, who executed the deed, subsequently to its execution and after it became a subject of dispute, cannot be received to prove the fraud (n). We have seen that a plaintiff is entitled to an answer to allegations of fraud contained in the bill (o); and that if the case be admitted by the answer, the court will act on that admission without other proof (p). And though those allegations are positively denied by the answer, parol evidence will be admitted to prove them; and if the case be thus sufficiently established relief will be decreed (9), and it has been Proof where the fraud is admitted by defendant's answer. Where it is denied. (e) In Shelburne v. Inchiquin, 1 Bro. C. C. 350; and see Hare v. Shearwood, 1 Ves. jun. 243; Townshend v. Stangroom, 6 Ves. 333; Pym v. Blackburn, 3 Ves. 38, n. (a), where the cases are collected; but see contra, Conolly v. Lord Howe, 5 Ves. 701. (f) Irnham v. Child, 1 Bro. C. C. 94; Potmore v. Morris, 2 ib. 219. (g) Baker v. Paine, 1 Ves. 457; Towers v. Moor, 2 Vern. 98; Langley v. Brown, 2 Atk. 203; Barstow v. Kilvington, 5 Ves. 593; Taylor v. Radd, 5 Ves. 595, cited Jenkins v. Quinchant, 5 Ves. 596, n.; Henkle v. Royal Assurance Company, 1 Ves. 318; Marquis of Townshend v. Stangroom, 6 Ves. 328; Rogers v. Earl, 1 Dick, 294. (h) Shelburne v. Inchiquin, 1 Bro. C. C. 341; Marquis of Townshend v. Stangroom, 6 Ves. 334. (i) Barrow v. Greenhough, 3 Ves. 154. (k) Leman v. Whitley, 4 Russ. 423. Irnham v. Child, 1 Bro. C. C. 92; Potmore v. Morris, 2 Bro. C. C. 219. (m) Rich v. Jackson, 4 Bro. C. C. 514, and 6 Ves. 334, n.; Anon. Skin. 159, and 1 Sugd. V. & P. 167, 8; Hare v. Shearwood, 1 Ves. jun. 241; Jackson v. Cator, 5 Ves. 688. (n) Conolly v. Lord Howe, 5 Ves. 700. Ves. 67. (p) Cottington v. Fletcher, 2 Atk. 155, vide supra. (4) See Podmore v. Gunning, 7 Sim. 654; but see Mortimer v. Shortall, 2 Dr. & W.363. * But the relief will be refused on the ground of mistake, where the case of the plaintiff depends entirely on parol evidence, and is contradicted by the defendant's answer. Mortimer v. Shortall, 2 Dr. & W. 363. See Alexander v- Crosbie, Ll. & G. 145. decided that the court will act upon the parol testimony of a single witness unless the denial in the answer be positive, and goes to the whole case made by the bill (r). It may be observed, that where fraud is set up as a defence against a suit, brought for the purpose of enforcing the execution of a deed or agreement; parol evidence will in all cases be admitted in support of the defendant's case (s). And according to the universal rule of evidence, where parol proofs are admitted on the one side to establish a case of fraud, they will also be received on the other for the purpose of rebutting it (t). PART I. Div. II. CHAPTER II. SECT. 1. Where fraud is relied upon as a defence against a claim. founded on fraud not favoured in equity. It is one of the first principles of courts of equity, that a party, who Laches in proseeks to establish a constructive trust in his favour, even on the secuting a claim ground of fraud, must use due activity and diligence in the prosecution of his claim; for as Lord Camden said in his celebrated judgment in Smith v. Clay (u), "A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his right, and acquiesced for a great length of time "(u). Accordingly it was laid down by Sir William Grant, M. R., in the A constructive case of Beckford v. Wade (x), that though no time bars a direct trust trust barred by as between cestui que trust and trustee, a constructive trust will be barred by long acquiescence, although the ground of original relief was clear and even arose out of fraud (x). acquiescence. And both before and since that case bills for relief on the ground of fraud, whether actual or constructive, have repeatedly been dismissed solely on account of long acquiescence on part of the plaintiffs; and this, though the circumstances were such, as would no doubt have originally entitled the parties to the relief prayed (y). However it has But a general been decided, that a bill charging fraud in obtaining an estate cannot be demurred to on the ground of long acquiescence; for the operation of delay as a bar to the relief is a conclusion from facts, and is not a matter of law (z). But mere length of time of itself will not be a bar to relief on a Time will not constructive trust originating in fraud. (r) Reach v. Kennegate, 1 Ves. 125. (a) Jorques v. Statham, 3 Atk. 388; Woolam v. Hearm, 7 Ves. 211; Marquis of Townshend v. Stangroom, 6 Ves. 328; 1 Sugd. V. & P. 137. (t) Vide supra, p. 74. (u) Smith v. Clay, 3 Bro. C. C. 639, n. ; and see Marquis of Cholmondley v. Lord Clinton, 2 J. & W. 141, 151; Chalmer v. Bradley, 1 J. & W. 59; et vide post, Application of Stat. of Limitation. (x) In Beckford v. Wade, 17 Ves. 97; and see Portlock v. Gardner, 1 Hare, 594, 607. (y) Bonny v. Ridgard, cited 4 Bro. C. C. The party entitled to the 138; Andrew v. Wrigley, 4 Bro. C. C. 124; (z) Earl of Deloraine v. Browne, 3 Bro. demurrer will not hold to a bill on the ground of delay. run until the party has knowledge of his rights. PART I. CHAPTER II. SECT. 1. Defendant who on the acquiescence, must prove that benefit of such a trust must also be aware of his rights, and acquiesce in being deprived of them; and time in order to bar the remedy, will not begin to run until he acquires, or might have acquired, the knowledge of the fact on which the trust is founded (a). However it seems, that the mere poverty of a party is not sufficient to do away with the effect of laches in prosecuting his claim (b). This doctrine was established previously to the recent statute 3 & 4 Will. IV. c. 27, and was acted upon in numerous decisions, where relief was afforded notwithstanding very long intervals since the accruer of the title (c). And in this sense and to this extent the dicta, which are to be found in the books, are undoubtedly true, that "no length of time will sanctify or cover a fraud” (d). And now by the 26th section of the statute 3 & 4 Will. IV. c. 27, it is expressly enacted, that in cases of concealed fraud time shall not begin to run, until the fraud shall, or with reasonable diligence might, have been known or discovered saving the rights of bona fide purchasers for valuable consideration. Upon the same ground it has been decided, that lapse of time will not be a bar to the relief, where from the obscurity of the transaction the plaintiff was unable to obtain full information of his rights (e); or where the party entitled is of weak understanding, or he continues under the influence of the defendant (f). And in order to displace the title of a party to relief on the ground rests his defence of his delay and acquiescence, it lies upon the defendant by distinct and explicit evidence, to bring home to the plaintiff the knowledge of the fact, on which the acquiescence is founded, and to which it refers (g). knowledge. After great length of time evidence of fraud must be very clear. Decree limited to a retrospec However where a party comes to the court after a great distance of time to impeach a transaction for fraud, very clear and strong evidence will be required to establish the plaintiff's case (h). In some cases, although the court has granted the main relief prayed by setting aside the transaction, yet on account of the length and made with- of time, that had elapsed before the claim was preferred, the account has been directed to be taken only from the time of filing the bill (i), tive account, out costs on account of delay. (a) Ryder v. Bickerton, 3 Sw. 81, n.; (c) Stackpole v. Davoren, 1 Bro. P. C. 9; June, 1835. (d) Mulcahy v. Kennedy, 1 Ridg. P. C. 337; Pickering v. Lord Stamford, 2 Ves. jun. 280. (e) Murray v. Palmer, 2 Sch. & Lef. 487. (f) Aylward v. Kearney, 2 Ball & B. 463; Pickett v. Loggan, 14 Ves. 215; Purcell v. M'Namara, id. 91. (g) Randall v. Errington, 10 Ves. 427, 8; Downes v. Grazebrook, 3 Mer. 208. (h) Chandos v. Brownlow, 2 Ridg. P. C. 397; Chalmers v. Bradley, 1 J. & W. 59. (i) Pickett v. Loggan, 14 Ves. 215; Ma. lony v. L'Estrange, 1 Beatt. 406; Mulhaj: len v. Marum, 3 Dr. & W. 317. And the decrce has been made without costs (k), and arrears of rents received will be given for only six years (7). PART I. Div. II. CHAPTER II. SECT. 1. will bar the It is difficult to lay down as a general proposition, what length of acquiescence will be a bar to relief on the ground of fraud. This must What length of necessarily be a matter of equitable discretion, depending on the acquiescence nature of the transaction, and the circumstances of the parties in each title to relief? individual case. In many of the cases indeed, where relief was given after a long interval, the question of acquiescence does not appear to have been raised; so that they can scarcely be considered as authorities on the point. The legal bar of twenty years appears to have been treated as the proper limit on several occasions (m); and it was distinctly decided in one case, that equity will not relieve, where the facts constituting the fraud are in the knowledge of the party, and he lies by for twenty-five years (n), and in another case twenty-one years' acquiescence was held to be a bar to the relief (o). In Gregory v. Gregory Sir William Grant, M. R., dismissed a bill, to set aside a purchase by a trustee after a lapse of eighteen years, upon the length of time only, and the decision was affirmed on appeal by Lord Eldon (p). And And in the case of Champion v. Rigby (q), Sir John Leach, M. R., refused to set aside a purchase by a solicitor from his client after an acquiescence on the part of the plaintiff for eighteen years (q). in a late case acquiescence for eighteen years in a purchase by a trustee was held by Vice-Chancellor Wigram to bar the right to relief (r). In such cases however, unless the case of acquiescence is extremely strong, the bill will usually be dismissed without costs (s). In Pryce v. Byrn, Lord Alvanley, M. R., dismissed a bill to set aside a purchase by trustees made twenty years before (t). But in Molony v. L'Estrange (u) relief was given against a purchase by an agent after an acquiescence of thirty years (u). And in a late case in Ireland relief was given against a lease fraudulently obtained by a person, who filled the character of guardian and agent and receiver, where there had been a delay of eleven years in instituting the suit (x). Where the right is vested in a large body of persons, such as creditors, it has been decided, that acquiescence is no argument against decreeing the relief (y). Although in the instances, where (k) Att. Gen. v. Ld. Dudley, Coop. 146, 8; Pearce v. Newlyn, 3 Mad. 189. (1) Pearce v. Newlyn, 3 Mad. 189. (m) Smith v. Clay, 3 Bro. C. C. 639, n.; Hovenden v. Ld. Annesley, 2 Sch. & Lef. 636, 7; Stackhouse v. Bamston, 10 Ves. 466. (n) Blennerhasset v. Day, 2 Ball & B. 118. (0) Selsea v. Rhodes, 1 Bligh, N. S. 1. (p) Gregory v. Gregory, Coop. 201; S. C. Jac. 631. (9) Champion v. Rigby, 1 R. & M. 539. (r) Roberts v. Tunstall, V. C. Wigram, 27th Feb. 1845, MS. (8) Gregory v. Gregory, Coop. 201; (t) Pryce v. Byrn, cited 5 Ves. 681. Large bodies of creditors, not barred by acquiescence. persons, such as L |