#### *John W. Smith vs. Jesse Smith.*

The complainant and defendant are sons of Jesse Smith, who died intestate, about the year 1828. Defendant administered on the estate of his father. About the year 1814, intestate gave to his son (the complainant,) a tract of land containing 321 acres, put him in possession, and assisted him in making his improvements. Shortly after com. plainant took possesion, his father procured a resurvey of his lands, and the tract occupied by complainant, was distinguished, and marked off, on the plat of resurvey, by red lines. Complainant continued to use the land and retained possession, until the filing of the bill. Complainant’s father never executed during his life time any titles to complainant of the land. After the death of complainant’s father, the lands belonging to his estate, were partitioned in the Court of Common Fleas, and when the commissioners were on the land for the purpose of making partition thereof, both complainant and defendant objected to this tract being partitioned. The land was notpartition-ed, but recommended by the commissioners to be sold, which was done; the tract on which complainant resided with the rest, and bid off by defendant. Defendant promised to convey to complainant this land, if complainant would pay $31, a part of the widow’s distributive share (which he agreed to be do,) and would join defendant in the bond, for the purchase money, to the sheriff. This complainant also did. Defendant took titles, from the sheriff of Horry District, and ordered a deed to be drawn to complainant for his part; which deed was drawn; but defendant refused to execute it until the $31, which complainant had promised, was credited or allowed, by way of discount, in an action of assumpsit which complainant had against defendant. This credit complainant did allow, and again defendant ordered his counsel to prepare another deed, which was done, and again defendant refused to execute the same, but procured another deed from the then Sheriff of Horry District for the land, and commenced an action of “trespass to try to titles” against the complainant, and upon this second sheriff’s deed recovered the premises and $60 damages. On a bill, by the complainant, for the purpose of enjoining the proceedings of the court at law, and arresting the writ of habere facias possessionem, and for a specific performance of the contract, it was held that the statute of limitations (which had been pleaded as bar to complainant’s recovery) was inapplicable to the claim of the complainant,[and that the lapse of time, under the circumstances of the case, is not such as to prevent the equitable relief of the Court of equity.

2. The statute of limitations does not apply in terms to proceedings in Courts of Equity, it applies to particular actions at common law, and limits the time within which they shall be brought, according to the nature of those actions; but it does not say there shall be no recovery in any other mode of proceeding.

3. In regard to equitable titles, courts of equity are to be considered as affected only by analogy to the statute of limitations. Nothing is better established in Courts of equity than that where a title exists in conscience, though there be none at law, relief should ; though in a different mode, be given in equity.

4. If the party be guilty of such laches in prosecuting his equitable title as would bar him, if his title were solely at law, he shall be barred in equity; but that is all the operation *127thestatute has, or ought to have, in proceedings in equity. One acknowledged princi. pie on which Courts of Equity give relief, is to prevent an advantage gained by law from being used against conscience.

*Before*Johnson, Chancellor.

Georgetown,

*January*Term, 1841.

This was a bill for the specific performance of a verbal agreement to convey lands, and for an injunction to restrain the defendant from enforcing a writ of *habere facias posses-sionem,*founded on a judgment obtained by defendant, against the complainant, in an action of trespass to try titles to the lands in question. Amongst other things, the defendant relies on the statute of limitations, as a bar to the relief sought.

The circumstances on which the complainant rests his claim, are set out with great precision and minuteness in his bill; but for the question arising under the statute, it will be sufficient to state, that it is alleged that at the Fall- Term of the Court of Common Pleas, in 1831, an order was obtained in a proceeding in partition, to which both complainant and defendant were parties, for the sale of all the lands whereof Jesse Smith (the father of the parties,) was seized at the time of his death, for partition among his heirs; and that at the July term, by S. Sessions, then the sheriff of the district, they were all, including the lands in question, bid off by the defendant. That the defendant being unable to give the security required by the terms of the sale, it was agreed between the parties, that if complainant would join in the -bond for the money, and contribute $31 towards the widow’s distributive share, that sheriff Sessions should execute titles to the defendant for all the lands, and that defendant should afterwards make titles to the complainant for the land in question; that in pursuance of this agreement, the complainant did join in the bond, and the sheriff executed titles to the defendant, which, together with a plat of the land, was delivered by defendant to complainant’s friend, Mr. Bryan, with a request that he would prepare a deed from him to complainant, for the land in question. This was on the 9th May, 1832. The deed was prepared accordingly, but defendant *128refused to sign it. That on the trial of an action of as-sumpsit, on a note by the complainant against the defendant, in 1833, the defendant again agreed that if complainant would consent that defendant should discount against that demand the {$31 which he had agreed to contribute towards the widow’s distributive share, he would make the titles according to the original agreement. To this complainant consented, and the discount was allowed. The defendant again gave instructions to prepare a deed, but refused to execute it, after it was prepared.

As a further ground of equity, it is stated in the bill, that the; sheriff (Sessions,) died not long afterwards, and that defendant fraudulently procured Beaty, his successor in office, also to make him titles to the land, which was given in evidence on the trial of the action of trespass to try title, at Fall Term, 1838, and upon which he recovered, the title of Sessions being at that time in the possession of the defendant.

The answer denies many, and some of the most important allegations in the bill; but the evidence was not gone into, as the facts out of which the question, as to the bar of the statute arises, are founded on the bill itself, and admit of no controversy. From them it appears that in 1833, the defendant, for the second and last time, promised to make titles to the complainant for the lands in controversy, and received and accepted the consideration on which that promise was founded. The bill was filed the 6th May, 1839, so that more than four years had elapsed between the promise and the filing of the bill.

That the statute of limitations operates as a bar in eqity, as well as at law, where the demand is purely legal, is a proposition that will not be controverted; and it is equally clear that it will not when the demand is purely equitable ; and the question is, to which class does this case belong *1*

It would, perhaps, be difficult to lay down any universal rule by which to distinguish between demands that are purely legal, and those that are equitable; but as a general rule, those demands are legal for which the party injured might have an action at law, although lie might maintain a bill in equity, and in that Court obtain a different remedy *129
      *from*that which the law Court would award; and those are merely equitable where the party injured could not, under any circumstances, obtain a remedy at law. As an •example, falling within the first class of cases, one makes his promissory note, but the buyer is unable to prove his •signature, and therefore cannot recover at law; he has, therefore, the right to come into this Court for a discovery, and the Court having possession of the case, will give the relief that the law Court would have done, if the buyer could have proved the case there; and it will not be insisted that this demand will not be barred in equity as well as at law.

As an example falling within the second class, the case of a trustee may be referred to, against whom the remedy •is only in equity, where the trust is only a continuing one. His exclusive jurisdiction is founded on the presumption ■that the evidence of the extent of the trustee’s liability is known only to the trustee, and that statute will not bar, because the demand does not arise until the trust is violated, or terminated.

What is this case ? The defendant, for a valuable consideration, promised to make and deliver to the complainant, titles to a tract of land, which promise he refused to perform.

• Now, if we suppose that the defendant, before filing this bill, had conveyed the land to a stranger, what would have been his remedy ? This Court could have afforded him no relief. The stranger must be protected ; and the only remedy which the complainant would have, would be by an action at law, for money had and received, or money paid on a consideration which had failed. And can there be a question that, in such an action, the statute would be a bar? The right and the remedy are often confounded, and there cannot be a question that the right may be purely legal, and the remedy only attainable in this Court"; and the statute, being a positive law of the land, must prevail here as well as at law.

The bill charges that defendant fraudulently procured a title from sheriff Beaty, after he had procured one from sheriff Sessions, by means of which he recovered at law ; and this is relied on as a fraud, which was not discovered *130until the trial at law, in 1838; and it is insisted that the statute could not run until then.

The rule in this Court is, that if one is deprived of his rights Jby fraud, that the statute will not begin to run until the fraud is discovered. But fraud is sometimes imputed to acts which are not so in fact, or in law. If Sessions did, as is alleged in the bill, execute titles to the defendant, which is denied in the answer, that invested him with all the rights he acquired under the title from Beaty. If it did not, then the title from Beaty was proper and necessary ; and I cannot perceive in what the complainant was injured, or that his rights were in any manner compromitted by Beaty’s title; for whether the defendant had given Sessions’s or Beaty’s deed in evidence, on the trial at law, the result must have been the same.' If there was a fraud in the matter, it was in the complainant’s suppressing the true deed. From the facts stated in the bill, and I have no doubt they are true, there can hardly be a doubt that the title was in the complainant; and as little, that he was barred by the judgment in partition. And I suppose on that ground the defendant recovered at law; if not, it was his misfortune or folly ; he did not put the matter at issue; but having neglected to do so, he cannot be relieved in this Court.

It is therefore ordered and decreed, that the bill be dismissed with costs.

The complainant gives notice that he will move the Court of Appeals to reverse the decree of his Honor, Chancellor Johnson, on the following grounds, to wit:

1st. That as the plea of the statute of limitations had been over-ruled by his Honor, Chancellor Dunkin, at Jan’y. Term, 1840, and the defendant ordered to answer, and that decree not appealed from, the case should have been heard at the present Term on the bill, the answer, and the evidence only.

2d. That the long uninterrupted possession of the land, by the complainant, the payment of the amount stipulated in the agreement of 1832, together with the delivery of sheriff Sessions’s deed, and the original papers by the defendant, vested in complainant such an equitable title to *131the land, to enforce the specific performance of which, as between him and the defendant, no laches on the part of complainant, or length of time, could operate as a bar.

3d. That if the statute of limitations be at all applicable to cases of this character, it can only be in analogy to the statutory bar at law, in relation to real estate, and not to the statute of four years, which is exclusively applicable to personal contracts.

4th. That by the agreement of the 9th May, 1832, the defendant was merely constituted the special agent, or trustee, for complainant and the other heirs; and the attempt to secure to himself an undue advantage, by virtue of the legal character with which he had been clothed by his principal, was such a fraudulent breach of trust, as is wholly unprotected by the statute of limitations.

5th. That, as the real object of this bill is to restrain the defendant from enforcing a judgment at law, obtained by fraud, the statute of limitations cannot be plead in bar to it, inasmuch as it is a case of purely equitable cognizance.

Curia, *per*Dunkin, Chancellor.

The complainant and defendant are sons of Jesse Smith, who died intestate, about the year 1828. It is stated in the bill, which, for the purposes of this case, must be taken as true, that in 1814, the father of complainant gave him a tract of land, containing 321 acres, of which he put him in possession, and assisted him in erecting a dwelling house, and other improvements on the land, which the complainant has continued to occupy from that time, as absolute owner, and without interruption; that in the following year, his father caused a re-survey of his lands to be made by W. Hemingway, a surveyor, in which the tract given to the complainant was distinctly marked out and shaded with red lines. His father, however, never executed titles to him for the land, although his possession and enjoyment was uninterrupted from the time of the gift. After the father’s death, and in the year 1828, proceedings in partition were instituted in the Court of Common Pleas for Horry district, among the several heirs, and a writ was issued, after much delay, in 1831. The commissioners met, and both *132the complainant, and the defendant, who was the administrator of his father, were also present. The complainant informed the commissioners of the gift, and the defendant also forbade them from including these lands, and the complainant left the commissioners under the impression that his lands were not to be included. The commissioners made no division, but recommended a sale of all the lands of the intestate, including those given to the complainant, which return wasconfirmed at the Fall Term, 1831. At the sale by the sheriff, the defendant attended, and made the same objections, (not to have the land of complainant sold,) which he had urged to the commissioners in partition. All the lands, including2,364 acres, were, however, sold by the sheriff,, and bid off by the defendant, for $490 25 cts. That the complainant was ignorant of all the proceedings after the meeting of the commissioners until he was informed that -the lands had been sold, and the whole purchased by his brother, the defendant. The defendant was unable to give the security required, and the sheriff was about to re-sell the lands. During the interval, the complainant saw the defendant, who assured him that he had not bid off the lands on his own account, but for the benefit of the heirs, to whom they had been given, and agreed, if the defendant would become his surety on the bond, and pay $31, which was his share of the sum necessary to pay the widow, he wrould execute a title to him for his tract. The complain» ant accordingly became surety on the bond, and afterwards paid the $31. On 9th May, 1832, the sheriff, Sessions, executed a title to the defendant for a body of land, including in the deed that of the complainant. As soon as the deed was executed and delivered to the defendant, he placed it, together with Hemingway’s plat, in the hands of Mr. Bryan, as the friend of the complainant, for the purpose of having a conveyance prepared, which the defendant promised to execute so soon as it was ready, directing Mr. Bryan, when the deed was prepared, to give it, together with Sessions’s deed and Hemingway’s plat, to the complainant. The deed was accordingly prepared and placed in the complainant’s hands, with the sheriff’s deed and the plat. The deed was tendered to the defendant for his signature, but he refused to execute it.

*133In the following year, 1833, the complainant sued the defendant on a note of $123 68, which had been given to him by the defendant, as administrator of his father.

In a settlement of the personal estate, at that time, the $31 had not been paid by the complainant, and the defendant then agreed, that if the complainant would allow this discount, he would make him the title to the land. The matter was arranged by their counsel. . The discount was allowed, and so appears on the verdict. The defendant, so soon as the verdict was signed, instructed his counsel to prepare a deed to the complainant for the land, which he agreed to do, and the defendant (so soon as the Court adjourned,) was to call at his lodgings and execute it, and that the defendant, however, left the Court, and after-wards positively refused to execute the title.

The complainant still hoped that the defendant would comply; and as he was in possession of the land, which he had then, for twenty years, and the counsel was also in possession of the sheriff’s deed to the defendant, he apprehended no serious danger from the want of a conveyance from the defendant. But on 4th September, 1835, (the sheriff, Sessions, being then dead,) the defendant applied to his successor, Col. Beaty, and falsely and fraudulently representing to him, that his predecessor, Sessions, had executed no title, prevailed on him to execute a deed, pursuant to the provisions of an Act of Assembly, in such case made and provided. The defendant then instituted an action of trespass to try title, against the complainant, and obtained a verdict at Fall Term, 1838, with $60 damages and costs, and has lodged with the sheriff of Horry District, a writ of *Habere facias possessionem cum fi. fa.*

The bill was filed on 6th May, 1839, to compel a specific performance of the agreement, and an injunction against further proceedings on the judgment at law. The defendant relies on the plea of the statute of limitations, or, in the language of the plea, that the right to call on him for the specific performance existed more than four years previous to the time of exhibiting the bill, and that the defendant had not, at any time within four years before the filing of the bill, made any promise or agreement to execute titles to the said lands. The plea was allowed, *134and the bill dismissed. From which decree, the complainant appealed, on the grounds stated in the notice. The remedy which the complainant seeks, is purely of an equitable character. So soon as the defendant refused to execute a title, he might, perhaps, have instituted a suit at law for damages, but if the complainant had never been disturbed in his possession, the damages would, probably, have been nominal. The serious cause of complaint, and the first direct invasion of his rights, was the institution of the proceedings at law, to try the title.

How far, and in what manner, this court is governed by the statute of limitations, has been often discussed. It is well stated by Lord Redesdale, in *Bond*vs. *Hopkins,*1 Sch. *&*Lef. 428. “ The statute of limitations, does not apply in terms, to proceedings in courts of equity. It applies to particular actions at common law, and limits the time within which they shall be brought, according to the nature of those actions, but it does not say, there shall be no recovery in any other mode of proceeding”. In regard to equitable titles, courts of equity are to be considered as affected only by analogy, to the statute of limitations. It is afterwards said. “ Nothing is better established in courts of equity, than that, where a title exists in conscience, though there be none at law, relief should, though in a different mode, be given in equity.” If the party be guilty of such laches in prosecuting his equitable title as would bar him, if his title was solely at law, he shall be barred in equity; but that is all the operation the statute has, or ought to have, in procedings in equity. One acknowledged principle on which courts of equity give relief, is to prevent an advantage gained by law, from being used against conscience. In the same case, the Lord Chancellor remarks, “ but it is said that the bar arising from lapse of time, ought not to be removed; why not, as well as a satisfied term, if used against conscience'! But it is contended that the bar arising from the statute of limitations ought not to be removed, because the enactment of the statute is positive. The answer is, the positive enactment has nothing to do with the case. The question is not whether it shall operate in a case provided for by the positive enactment of the statute, but whether it shall operate in a case not pro-*135Tided for by the words of the Act, and to which the Act can only apply, so far as it governs decisions in the courts of equity; that is, whether it shall prevent a court of equity from doing justice according to good conscience, where the equitable title is not barred by the lapse of time, although the legal title is so barred.”

After citing the case of *McKenzie*vs. Powis, 4 Bro. C. 328, in which, in an appeal to the House of Lords, it was held, not only that the statute should not run, pending the cause in equity, but that; from the circumstances of the case, it should be removed wholly out of the way; and in *Pincke*vs. Thornycroft, 1 Bro. C. C. 289; and 4 Bro. Parl. Ca. 92, on an analogous principle, he declares the practice of the courts to be well settled. The same principle he adds, is also established by what the court does upon the statute of frauds. The statute of frauds says, that no action or suit shall be maintained, in an agreement relating to lands, which is not in writing, signed by the party to be charged with it; and yet, the court is in the daily habit of relieving, where the party, seeking relief, has been put into a situation which makes it against conscience in the other party to insist on the want of writing so signed, as a bar to his relief. Courts of equity decide on equitable grounds, in contradiction to the positive enactment of the statute of frauds, though their proceedings are, in words, included in it; whereas, they are not included in the words of the enactment of the statute of limitations. In the case then, under consideration, the Lord Chancellor concluded, that, under the circumstances, he has no difficulty in holding, that the statute of limitations, in the manner it had been insisted on, should not operate as a bar, if the lapse of time, since the title to equitable relief began, did not prevent relief in equity on that title.

It is very questionable, whether the principle of the statute of limitations has any application to this case. The reason of the statute, may, perhaps, be recognized in what is said by the court, in *Smith*vs. Henry, 2 Bail. 118, that it is inconsistent with the ordinary conduct of men, having a moderate regard to their own interest, to permit another to enjoy without hire or compensation, that which belongs to them. When a right to recover a debt, or the *136possession of property has been suffered, for years, to remain dormant, and another has been permitted to enjoy the money or property, it is presumed that the debt has been satisfied, and that the right of property has been transferred or relinquished. It is not intended as a punishment to the one, or a reward to the other. It has been called a statute of Repose, and its office is to protect, and not to disturb, the apparent ownership. How can this principle avail the complainant'? or why should it prejudice the claim of the defendant'? The latter has been always in the enjoyment of that which is his, or which he alleges to be his. His possession of the land has never been disturbed. Under his agreement with the defendant, he was entitled in this court, to a specific performance — to the execution and delivery of a deed of conveyance. The plea is, that this right existed more than four years prior to the filing of the bill, and that the defendant did not promise to execute a title at any time within four years. The statute protects the defendant, because it presumes he has complied with his promise, but has, perhaps, neglected to preserve the means of proving it. Admit this presumption, and the defendant must be held to have executed the title, which has been lost, and in consequence of which loss, he now seeks to avail himself of an unconscientious advantage by his verdict at law. The legal right of the complainant, was damages for non-performance of the agreement. So long as he was in possession of the land, he had sustained no damages. His equitable right, was to a deed of conveyance. Then, in the language of Lord Redesdale, is the complainant’s title to this equitable relief barred by the lapse of time *1*Many cases are to be found in the books, in which the court has refused to decree a specific performance, in consequence of delay to enforce the agreement, where much less time has elapsed than would bar the action at law. But it is believed that none can be found in which this objection was sustained, where the vendee has continued in possession under the agreement to convey.^ When a debt has been acknowledged, or a payment has been made, without any new undertaking, the statute is not permitted to bar the demand. When the original agreement to convey is admitted, the continued *137possession of the vendee, may he regarded as a constant acknowledgment on the part of the vendor of his right to a conveyance. It, at least, precludes the presumption that his right has been waived, and repels the inference of a want of right to the land, from his omission to compel the execution of a conveyance.

Munro, for motion;

*Ifarllee,*contra.

In the judgment of the court, the statute of limitations is inapplicable to the claim of the complainant, and the lapse of time, under the circumstances of the case, is not such as to prevent the equitable relief of this court.

The decree of the Circuit Court is reversed, and the cause is remanded for a hearing on the merits.

BENJ. F. DUNKIN.

We concur.

David Johnson, Wm. Harper, J. Johnston.