#### Field *vs*Wilson, &c.

•Error to the Bullitt Circuit.

Chancery.

*Case '102.*

The case stated.

*Fraud. Limitation.*

*June*12.

Jdhge Marshall

delivered the opinion of the Court.

E. K. Wilson having purchased Caleb as a slave under am execution in favor of Murphey and against T. Q. Wilson and others, iepresentatives of J. and C. Quertemus, the two Wilsons afterwards sold Caleb to Field by written bill of sale with warranty of title. Some years after•terwards, Caleb in a suit against Field and the Wilsons, •established his freedom under the will of E. Quertemus, and Field then filed his bill to recover from Murphey or from the Wilsons and Murphey the purchase money, paid for Caleb with interest. The bill alledges the non-residence of E. K. Wilson, and the insolvency of T. Q. Wilson, and also thati the judgment of Murphey was fraudulently obtained, upon a fictitious claim set up for the purpose of depriving Caleb of his freedom, and by a bill of ievivor against the heirs of T. Q. Wilson it is al•ledged that he co-operated in this fraud. Murphey relies upon the statute of limitations, and also denies the fraud and alledges the indebtedness of T. Q: Wilson, to him, in an amount equal to the purchase money paid by Field for Caleb.

Conceding that the alledged fraud in Murphey’s judgment is established, and that by reason of this fraud and of his reception of the purchase money, raised by the sale of Caleb under execution, he was responsible to the purchaser, E. K. Wilson, who is not alledged to have participated in the fraud, fstill as the right of action for enforcing this responsibility did not pass from Wilson, to •his vendee, Field, he can only enforce that responsibility to the extent and on the same ground that Wilson himself could, and his only ground for enforcing it in equity is, that by the non-residence of Wilson, his legal remedy upon the warranty in the bill of sale is prevented. The *480case stands solely upon the statutes authorizing a credit- or to subject the choses in action of his non-resident debtor to his demand. And although on this ground the claim against Murphey may be asserted in equity, yet as it is in itself purelya legal demand, we apprehend that the application of the statute of limitations is to be determined according the principles which prevail in a Court of law. Even in cases of concurrent jurisdiction it has been decided that equity will in this respect follow the law, *(Steeles executors*vs *Moxly,*9 *Dana,*137,) and this seems to be still more proper when the Court by reason of some extrensic circumstance, is called on to enforce a legal demand, and thus in effect comes into the place of a Court of law.

If legal rights are pursued in equity the legal operation of the stalutemust prevail.

The right of action for a fraud in the sale of a slave without title, accrues upon the sale, and the statute of limitation then commences to run.

If legal rights are pursued in equity, the legal operation of the statute must prevail. And the rule at law is well settled, that the statute begins to run so soon as the cause of action accrues. This rule has been' repeatedly'applied to aelions brought upon the implied covenant of title or right to sell, arising on the sale of a chattel, and the action has been defeated, though brought within five years after eviction or loss of the chattel by suit, without referrence to the time when the defect of title may have been discovered. These cases would decide the one before us, if it were founded on any implied contract arising out of Murphey’s 'relation to the execution and the sale under it; and they bear a strong analogy to the action for fraud in selling a chattel without title. But there are other cases more directly to the point.

In the case of *Singleton*vs *Lewis,*(Hardin, 258,) which was an action for fraud in selling an unsound slave, the Court decided that the fraud was the gist of the action, that the cause of action accrued on the sale, and that the Circuit Court erred in instructing the jury, that the statute of limitáton did not begin to run until the death of the negro. The necessary implication is that it began to run from the date of the sale. And in *Pile*vs *Beckwith,*(1 *J. J. Marshall,*445,) which was an action for fraud in the sale of land of which the vendee was afterwards evicted, it was expressly decided that the cause of action accrued on the sale, and the statute com' *481■menced running from the time the fraud was commit■ted •

proceeding equity, _ for a where is*a£ ]t^b,|;.e after the contract in which it was perpetrated, tinctly1 aUedged ^at ¡t was no.t discovered until within 5 ;.yeaxs brought.016 SUlt

*Jiiley*for plaintiff-; *Grigsby*for defendants.

The present suit though 'brought immediately -after Field’s loss of Caleb, by the establishment of his Tree- ■ dorn, was not commenced until fourteen years after his -purchase from the Wilsons, and a still longer period after the sale under Murphey’s execution. And it does not , . ... . . ... . ,TT., ■ appear that either the present-complainant or the Wil■sons, or either of them, remained ignorant of the alledged fraud, until within five years before this bill was filed. It , . would seem, therefore, that the-case does not come properly within the equitable rule, which would save the remedy for five years after the discovery of the injury. If, as alledged, T. Q. Wilson participated in the fraud of Murphey, 'then tbereds no pretext for asserting a responsibility of one of these parties to the other for the same fraud; and i-f -it be assumed that they combined to defraud Ca■leb ofhis freedom, thatthey thereby became jointly liable, and that the enforcement of this liability is a-matter of -concurrent jurisdiction, still the cause of action accrued "ío E. K. Wilson, if he was an innocent-purchaser, as soon as the sale to him was complete; -or i’f he was participant dn the fraud, the cause of action accrued to Field when be made his purchase, and according to the case of *Steele’s executors vs Moxly supra,*the statute then began to run against it. And if its application could be avoided or postponed,-on the ground of ignorance of the fraud, •such ignorance is not even alledged to have continued until within five years prior to the commencement of this -suit.

In every view-of the case, therefore, we are of-opinion that whatever may have been' the original liability of Murphey, or of all, or any of the defendants, on the ground -of the alledged fraud, that liability is not enforcible against the plea of the statute of limitations, but the complainant must seek -his remedy upon the warranty contained in the bill of -sale.

Wherefore the deeree dismissing the bill is affirmed.