#### James Beck, Ex’or. and others, *vs.*T. E. Searson and wife and others.

Bill filed In February, 1852, to set aside, on tho ground of fraud and undue influence, conveyances made in February 1844, *held,*barred by the statute of limitations. The bill contained no allegation that the undue influence was continued until a period within four years before the filing of the bill,* and, therefore, the Court refused to consider, whether such an allegation, if proved, would prevent the bar of the statute.

BEFORE BUNKIN', OH., AT BEAUFOBT, FEBRUARY, 1855.

DUNKIN, Oh. A brief of the pleadings is indispensable to a proper understanding of this case — an outline is to this effect: The wife of the defendant, T. E. Searson, is the daughter of Stephen W. Blount, of the State of Georgia. On 3d Januarj, 1844, Blount executed a deed, purporting to transfer, in cash, the sum of four thousand dollars,' to Z, Z. Searson, brother of the defendant, T. E. Searson, *ltin*trust, to suffer and permit the said T. E. Searson to take the said sum of money, and invest the same in any kind of property he may see fit, (the title thereto being taken in the name of the said trustee, Zachariah Z. Searson,) and from time to time, as he the said Thomas E. Searson may see fit, to sell, alien, exchange, re-invest, and otherwise change the same, (the title thereto being always taken to the said trustee, and he making title in all cases of sale or exchange.)”

The uses declared were, (among others,) for the joint use of husband and wife, and of the survivor, and then for the issue, &c. Z. Z. Searson formally accepted the trust in writing, an’d the deed was recorded in the Register’s Office on 5th February, 1844. On 3d February, 1844, Eliza H. Searson, (the mother of Thomas E. and Z. Z. Searson,) reciting a consideration of three hundred dollars paid to her “ by Z. Z. Searson, trustee *131for Thomas E. Searson and Elizabeth M. his wife,” conveyed to the said trustee the tract of land on which the said Thomas E. Searson then resided, containing four hundred acres; and by another deed of the same date, reciting the consideration of two thousand dollars to her in hand paid by Z. Z. Searson, trustee for Thomas E. Searson and Elizabeth M. his wife, she, the said Eliza H. Searson, bargained and sold ten negroes (by name) to the said Z. Z. Searson, trustee as aforesaid. Both these deeds were executed in the presence of two witnesses, and recorded on the 10th April, 1844.

It is alleged in the bill that, at the time of the execution of the deed of February, 1844, Eliza H. Searson was “ residing in the same house, or on the same plantation, with the said Thomas E. Searson;” that in July, 1851, Eliza H. Searson voluntarily removed to the residence of one of the plaintiffs, Z. Z. Searson, and then and there required him to write, at her dictation, a will, a copy of which is exhibited, which will was duly executed on the 19th July, 1851, and the testatrix died on 18th August of the same year. This instrument is preceded by a declaration on the part of the testatrix, that the deeds of February, 1844, were “an act of fraud committed by her (the testatrix) through the persuasion of her son Thomas E. Sear-son ; that the fraud was committed by her (the testatrix) to shield the land and negro slaves from being sold under a decree that was likely to be had against her, as security on bond for her son, Z. Z. Searsonthat the said Z. Z. Searson knew nothing of the matter, but that “ the bills of sale were delivered by her to the said Thomas E. Searson in the presence of two witnesses, who said, the said Thomas E. Searson gave her in payment a small roll pertaining to be value received, but which roll she (the testatrix) then solemnly vowed and declared that she returned, the day after, to the said Thomas E. Searson, by his request, without opening the said roll, or knowing what was the contents, and that she had never received one cent in payment for the said land and negroes.” The testatrix devises and be-*132queathes fifty dollars a piece to her sons Thomas E. and Z. Z. Searson, and directs the residue of her estate to be divided among her grand-children, (the children of said Thomas E. Searson and Z. Z. Searson,) and her grandson James Beck. Thomas E. Searson was directed to have the management of his children’s portion, giving to each his portion when arriving at the age of twenty-five years. Z. Z. Searson and James Beck were appointed executors of the will; the latter of whom alone qualified thereon, to wit, on the 29th August, 1851.

This bill was filed on 20th February, 1852, by James Beck and by Z. Z. Searson, for himself, and as next friend of his children. The plaintiffs *charge*that no consideration was paid to Eliza H. Searson for the deeds of February, 1844; or that, if any, it was very small, and inadequate, and paid merely as a form to cover the character of the transaction; and that even this small sum was restored by the said Eliza H. Searson to the said Thomas E. Searson, the day after the execution of the deeds, and that the said deeds were utterly fraudulent and void.

The defendant, Thomas E. Searson, answers fully and circumstantially all the allegations of the bill, but he insists that the plaintiffs occupy no more favorable position than Eliza H. Searson, if alive, could assume; and that if she ever had any cause of suit against the defendant, arising out of the deeds of February, 1844, (which he in no sort admits,) the same occurred more than seven years before the filing of the bill in this case, and is therefore barred by lapse of time in analogy to the Statute of Limitations, and he craves the benefit of the same. The cause was heard on this issue alone, the Court entertaining an opinion that Eliza II. Searson, if she had ever any claim to the aid of the Court of Equity, arising out of the transaction of 3d February, 1844, was precluded by the plea; and that her executor, or those claiming as volunteers under her, were in no better situation, and were also bound.

Assuming as true the allegations of the bill, that the consid*133eration of the deeds of February, 1844, was so grossly inadequate as to shock the conscience and warrant the inference of fraud; *or*that the consideration, trifling as it was, was returned the next day by the grantor; all this was well known at the time the deeds were put on the public records of the country. The plaintiff, Z. Z. Searson, too, resided within a mile or two of the parties, and admitted his knowledge of the deeds within seven months after their date. No circumstance of fraud alleged in the bill as invalidating the deeds was unknown, or could from necessity have been unknown to the testatrix at the time of the transaction. Then, in February, 1848, her right to impeach the deeds was gone. She lived until 1851, and died without adopting any proceedings to annul the deeds. It was said the deeds of February, 1844, were not known to the trustee, Z. Z. Searson, until some months after their execution. But Blount’s deed expressly provides that the money shall be paid to Thomas Ei Searson, who was to make the investments in the name of the trustee, who was specially exempted from liability for any property which did not actually, and *not constructively,*pass into his own possession. In this Z. Z. Searson acquiesced when he became a party to the deed executed by Blount, and he admits that he was aware that Eliza H. Searson had executed the deed of February, 1844, some seven months afterwards. It is not suggested in the bill that the character and effect of the deeds was not understood by Eliza H. Sear-son ; or that, in this respect, any imposition was practised upon her; much less that she awoke to the knowledge of such imposition at a subsequent, or recent date. As was intimated by the Court in *Arnold*vs. *Mattison,*3 Bich. Eq. 154, (to which, in other respects, this case is not dissimilar,) no decree could be made upon a case not made by the bill, although the evidence might sustain it. According to the case as presented, the claim of the testatrix to relief, or to the aid of this Court, if any existed, was barred in her lifetime, and no right passed to her representatives.

It is ordered and decreed that the bill be dismissed.

*134The Complainants appealed and moved this Court to reverse the decree on the grounds:

1. Because the bill sets forth that the deeds were obtained by undue influence, and without consideration; and further, that at the time of the execution of them by Mrs. Searson, she was residing with Thomas E. Seai’son, and that he had exclusive control of all her property as her agent; which facts raised a presumption of undue influence in obtaining the deeds, and so long as said relations continued, the Statute of Limitations could not begin to run.

2. Because Mrs. Searson’s declaration in her will, that the purpose of the deeds was to protect the property from creditors, does not rebut the presumption of undue influence arising from the relations of the parties, because she ■ states that the deeds were executed by the persuasion or influence of her son Thomas E. S.earson.

3. Because the Statute was not pleaded, but only set up in the answer; and the evidence should have been heard.

4. Because the Statute was no bar to the suit.

*Tillinghast,*for appellants.

*jTreville,*contra.

The opinion of the Court was delivered by

WaRDlaw, Ch.

This Court concurs with the Chancellor. Whatever may be our opinion as to the application of the Statute of Limitations to a case where the pleadings and proofs show that the undue influence, constituting the fraud, continued to a date within four years from filing the bill; it is suflicient for this occasion to say, that the bill in this cause makes no *135such allegation. The plaintiff’s statement of fraud and undue influence is confined to the date of the execution of the deed; and the plaintiff Z. Z. Searson admits his discovery of the fraud seven years before filing the bill, and the plaintiff Beck has no equity superior to that of his testatrix. It is always safer to limit the relief of complainants to the claims regularly made by them, and not to permit the introduction of evidence foreign to their allegations, which might greatly surprise their adversaries.

It is ordered and decreed, that the appeal be dismissed, and the Circuit decree be affirmed.

Joi-iNSTON, Dunkin and DaRGAN, CO., concurred.

*Appeal dismissed.*