#### Alice Hamilton, Ex’x of Ferdinand Hamilton v*.*James Shepperd, Adm’r of Oliver Smith.

-n, b rom ^a^nc'

In an action on the case to recover damages for a fraud in the sale of a Laird Warrant, the Defendant pleaded the statute of limitations; to ■which plea the Plaintiff replied specially, that the fraud was not disco- ■ vered until within three years next before the bringing of the suit.—

Replication overruled and plea sustained.

The cause of action accrued when the fraud was committed; and three years having run from that time before the bringing of the suit, the Plaintiff is barred; for he is not within any of the savings of the statute.

The common saying, that the statute of limitations does not run where there is a fraud oí a trust, is founded in mistake. Where there is a pure trust, in which Equity exercises exclusive jurisdiction, or where there is a fraud, in wliich Equity exercises the like jurisdiction, the Court of Equity will permit, or not, at its discretion, lapse of time to bar an investigation. That Court is bound by no statute on the subject; for the *subject jnatter*is not one of the cases barred by the statute of limitations. It is a pure Equity, not within the letter or spirit of the statute. But if it were on a subject matter cognizable at law, and within the cases provided for in the statute, that statute is as positive a bar in a Court of Equity, as in a Court of Law. The maxim is, not that Equity-respects time, but that Equity follows the Law.

This was an action on the case to recover damages for a fraud in the sale of a land warrant. The Plaintiff offered in evidence, a deed proved to have been executed by Smith, conveying to Ferdinand Hamilton *“*all his right, title and *“*interest in a land warrant transferred to Nancy Shep- “ perd, for 640 acres of land, No. 1751, which was supposed to be in the Secretary’s office in the State of North- *“*Carolina *•,*which warrant was for lands on the Cumber- *“*land River, above the mouth of Roaring River This deed purported to convey the right of Smith and of Nancy Shepperd, whom he had married, and was dated 4th J une, 1806. On this deed was endorsed a certificate of Registration in Jackson County, *Tennessee;*but there was no other evidence that the registration was an official act. The words and figures “640 acres, No. 1751/’ were inter*116lined after the deed was executed, and in the absence of Smith. To account for this interlineation, the Plaintiff produced a letter written by Smith to Hamilton, in 'which be informed Hamilton that the No. of the warrant sold to him was 1751, and that he might insert that No. in the deed. Other evidence was also offered shewing that Smith had sold a land warrant to Hamilton, and specially pointing out its location, which as described by him and in the deed, and in the note hereafter mentioned, would cover the land on which Hamilton Jived. This note was given to Smith by Hamilton, to secure the residue of the purchase money, and was produced by the Defendant under a notice from the Plaintiff. In this note, the lands were described as lying *“*on Cumberland River, at the upper end of the “ first bluff above the mouth of the first big Creek above *“*the mouth of Roaring River” — and the warrant as being located on the 19th February, 1787.

The Plaintiff then proved, that on the 24th January, 1786, the warrant No. 1751, was located on the east fork of Stone’s River ; and that after the marriage of Smith with Nancy Shcpperd, a grant issued to her from the State of North-Carolina for these lands. That previously to the' sale to Hamilton, to wit, on the 25th January, 1798, Smith and his wife sold the lands so granted to her to John Gray Blount. Their deed to Blount, the execution of which was proved on the trial, was acknowledged in Pitt County Court, by Smith, and the privy examination of his wife taken. There was also a certificate of the presiding Justice of the Court, that George Evans, who attested the probate, was Clerk of the Court. A certificate of registration in Sumner County, in Tennessee, was endorsed on the deed ; but there was no other evidence that the registration in Tennessee was an official act. This suit was instituted in November, 1811 *$*and it appeared that the Plaintiff had not discovered the alleged fraud until a year before the suit was brought. Smith died, and the admin*117istrator qualified more than two years before the bringing of this suit.

The Defendant pleaded *“*the general issue, the act of If 89, and the statute of limitations.”

On the first plea, it was insisted, 1st. That Hamilton, by inserting the figures and word *“*640 acres” in Smith’s deed, had so vitiated it that the Jury should not regard it, nor enquire whether such an insertion was made with a fraudulent intent or *not;*and of this opinion was the Judge before whom the case was tided : but he directed the Jury that if, from any other evidence in the case, it appeared satisfactorily to them that a sale had been made, they were at liberty to regard such evidence. 2d, That it did not judicially appear’ that the deed from Smith to Hamilton, and the deed from Smith and wife to Blount, had been registered. But no evidence-was offered that by the laws of Tennessee, registration was necessary.

To support the plea of the act of 1789, the Defendant pi’oved that Smith died in August, 1807, and .that in the next month, the Defendant having taken out letters of administration on his estate, advertised at the court-house and two other public places in the county where Smith had usually resided next before his death, for creditors to present their claims or that they would be barred. To this plea there was a replication : and the Judge instructed the Jury that the Defendant had done all that was required of him by the act of 1789, and that the Plaintiff was bai’red.

As to the plea of the statute of limitations, that the suit had not been brought within three years after the cause of action accrued,' the Plaintiff replied specially, that the fraud was not discovered until , and that this suit was brought within three years after the discovery — and on this point the Judge instructed the Jury, that if they were satisfied of the facts, the replication was good.

The Jury found for the *Plaintiff;*and a new trial was ihoved for, 1st, Because the deeds did not judicially appear to have been registered. 2dly, Because the Jury found con-*118frary to tho charge of the Court upon the' plea of- the act • 1789,

The motion-for a new trial was sent to this *Court;*and

Henderson, Judge,

delivered the opinion of the Court.

It is unnecessary to decide any other point in' this case' than the statute of limitations. More than three years had-elapsed from the time the cause of action accrued, to- the bringing of this suit, and the Plaintiff is not within any of the savings of the act. But he alleges, that this was a transaction founded in fraud,- and that he brought the action within less than three years after he made the discovery. Were it not for the difficulty of ascertaining the fact, when the discovery was made, and we were now legislating on the subject instead of expounding the law, we might make such an exception. But it is not in the act, nor is there any thing like *it;*and we cannot put it there. It is neither in its letter nor spirit.

But it is said, the statute of limitations does not run where there is a fraud or trust. It is true, where there is a pure trust, in which case Equity has exclusive jurisdiction, also in eases where there is a fraud in which Equity has the like jurisdiction, the Court of Equity will permit or not, at its discretion, lapse of time to bar an investigation : but that Court is bound by no statute on the subject *;*for the *subject matter*is not one of the cases barred by the statute of limitations. It is a pure Equity, not within the letter or spirit of the act. It is neither an action on the case, nor any other action mentioned in the statute 3 nor does it embrace tho subject matter of any such action. The Court is free, therefore, to exercise its discretion in the application of the maxim in Equity respecting time. But if it were on a subject matter cognizable at law, and within tbe cases provided for in the act of limitations, that act is as positive a bar in a Court of Equity, as in a Court of Law. For the maxim is, not that Equity respects time, but that Equity follows the *119law. It is from these rules in Equity that a common saying lias gone abroad, that the statute of limitations does not run where there is a trust or a fraud : and J.udge Williams said it on the bench more than once. ¡But it ,is very clear that it was a mistake. For, except a case in Massachusetts, and a few *nisi prius*cases in this state, not a case can be found where such *k*rule is established ; nor do I know how any should be expected. When the words of the . act and of its sayings are so explicit, we are not at liberty to travel out of them. The Court are therefore of opinion, that the rule for a new trial should be .made absolute.