#### *Joseph Parham*vs. *Samuel McCravy and others.*

Bill to enforce a parol trust in land and negroes against a purchaser, alleging that defendant knew of the trust when he bought: *JSeldt*that plaintiff was barred by the statute of limitations — more than four years having elapsed since the purchase.

It is not enough to prevent the bar of the statute of limitations that plaintiff did not discover evidence by which he could establish the fraud until within four years. It is the knowledge of the fraud within four years which prevents the bar.

*Before*Dunkin, Ch., *at Spartanburg, June,*1853.

The decree of his Honor, the Circuit Chancellor is as follows:

Dunkin, Ch. Drury Parham, being the owner of a tract of land on Dutchman’s Creek, containing some two hundred and eighty acres, on 23d July, 1836, made a deed of gift of the same to his son, Young Parham, reserving the use and possession during the life of the donor and his wife. The deed was duly proved and recorded on 25th October, 1836. In the will of Drury Parham, executed sometime afterwards, this deed is referred to, and the gift recognized and confirmed. The will was proved in solemn form on 11th July, 1842. The widow survived until the early part of 1844, when *James M. Harrison*was employed by Young Parham to go and take care of the plantation, and of two negroes, Ned and Priss, and also of’ Young Parham’s sister, (of infirm mind,) who were living there. In October 1844, Young Parham being on the eve of removal to the West, sold the place for four hundred dollars to the defendant, Samuel McCravy. On 25th February, 1845, McCravy brought an action at law *(trespass quare clausum*fregit) against the complainant, and judgment was rendered for the plaintiff, McCravy, Spring, 1846. On 24th April, 1850, this bill was filed, in which it is alleged that Young Parham held this land, as well as a negro, Ned, on a secret trust for the complainant, who had been a person of intemperate habits, and that the defendant, McCravy, had purchased the land, and become possessed of the negro, with a knowledge of the trust. *141The complainant excuses his *laches*in pursuing his rights, on the ground that “ heretofore, he has not known that the said Samuel McCravy was informed of the trust which was' attached to the property, but that he has recently been informed that he did know all about it.”

The defendant denies all knowledge of the fiduciary holding of his vendor, if any such trust ever existed, which he in no manner admits; and he interposes the plea of the statute of limitations to the plaintiffs’s supposed equity.

It is very difficult to determine what the the terms of the parol trust, and still more dif terms of the trust as *testified*to by the witnij leges that a deed was made of the land Young Parham, *“*with a parol trust' that kept for use and benefit of the plaintiff, and f!^ *plaintiff;*have the profits arising from the rent of the of the negro, *or,*that the plaintiff should have the use of them in such mode as might be thought most advisable.”

This is very indefinite; but the evidence to sustain the allegation is still more vague. From the evidence of *Lewis Bolo,*in whom the plaintiff places great reliance, it would amount to little more than an understanding that the plaintiff was to have a home on the premises, and this witness, in concluding his evidence, says: “he thought that Young Parham had a good right to the tract of land, and that it was as he pleased, whether he sold the land or not.” And he was actually, an attesting witness to the deed from .Young Parham to the - defendant. So whatever may have been the loose declarations of Young Par-ham, it is very difficult, in opposition to the evidence of Maj. Smith, who was intimately acquainted with testator’s views, to infer that any parol trust existed in contradiction to the plain language of the will and deed.

On the subject of -the Statute, too, the plaintiff encounters difficulties — more than four years had elapsed since the recovery against him at law- — nearly six years since the alleged fraud between Young Parham and the defendant, McCravy, to defeat *142plaintiff’s rights. Plaintiff avers that he only recently ascertained that McCravy was aware of the alleged trust. *Charles Bogan*is the principal witness to prove McCravy’s knowledge. He is the brother-in-law of the plaintiff — the husband of his sister — he deemed it important in October, 1844, to fix McCravy with the knowledge of what Young Parham had said. Can it be supposed that until 1850, he never told the plaintiff? He did not say so in his testimony, nor was anything said to create a belief that the plaintiff had obtained any information recently which he had not in 1844. But on 10th June, 1845, while the defendant, McCravy, was prosecuting his action of trespass against the complainant, he (the complainant) was arrested under an execution at the instance of a creditor, E. J. Adicks. In order to entitle himself to the benefit of the prison bonds Act, he filed a schedule, in which was included as follows : “ All the interest which I have, which is legally assignable, in the tract of land whereon I now live, as also in a negro man named Ned, the interest as I understand it, is that the said tract of land and negro, were given in trust for my use and benefit. I have heretofore assigned to William Pollard my interest in said negro, for and on account of his standing my security to Thomson-& Tucker for *$25,*and *for $8 or $10 more,*which I owe said Pollard.” This schedule was filed on oath on 20th June, 1845, and on 30th June, the assignment was duly executed to the plaintiff in the execution — E. J. Adicks — and the defendant was discharged. The interest thus assigned was sold by the sheriff under the assignment, 5th August, 1845, for inconsiderable sums, as appeared by the evidence upon this subject as adduced the by plaintiff himself. No suggestion is made that E. J. Adicks was in any manner implicated in this matter. Whatever equity the plaintiff may be supposed to have possessed, passed to his assignee on 30th June, 1845, and when the defendant McCravy recovered a verdict at law, in 1846, the plaintiff may well have supposed that he thenceforth had no cause of action. But in conclusion, the Court can perceive no ground to inpugn the evidence of the witness *Thomas Taylor.**143He proves that prior to the sale by Young Parham to defendant McCravy. in 1844, the defendant was importuned by the plaintiff to conclude the bargain with Young Parham. He insisted on it, that the defendant would get a bargain, and gave his reasons why he wished defendant to purchase rather than another, &c., and that during this time, he, the witness, never heard the plaintiff say a word about any claim to the land in his own behalf.

It is ordered and decreed that the bill be dismissed.

The complainant appealed, and now moved this Court to reverse the circuit decree on the grounds :

1. Because the case was fully made out by the complainant, that Young Parham had taken the title from his father, D. Par-ham, for the land and negro referred to, with a trust for the use and benefit of the complainant.

1. That complainant was put upon the land by Young Par-ham in obedience to, and in pursuance of the trust.

II That the defendant, Samuel McCravy, had notice of it, and the case made, shows that he purchased subject to the trust.

III. That the statute of limitations or lapse of time, had no proper application to the case.

2. Because the defendant purchased the land subject to the complainant’s right, and he submits that the case made goes clearly to show that fact.

*Bobo*& Edwards, for appellant.'

Dean, contra.

The opinion of the Court was delivered by

Johnston, Ch.

We concur generally in the views of the Chancellor. On one point, only, is it deemed necessary to add anything to what he has said in the decree. I allude to the statute of limitations.

The plaintiff’s counsel has brought to our view the case of *Bradley*vs. McBride, decided in April, 1832; and recently *144reported in Richardson’s Equity Cases, 202. The Court, consisting of two Judges, says *in*that case : “The statute of limitations begins to run against a fraud from the time it is discovered. The time within which the statuory bar against a fraud is complete, must be - governed by the nature of the claim against which it is set up. If it is for the enforcement of a parol contract, or the recovery of personal property, the time within which the statute has directed that actions of assumpsit, trover or detinue, shall be brought, is the rule in Equity. If it is for the recovery of land, then the time limited for the bringing of actions at law, for its recovery, is the time within which a bill in Equity, to be relieved from a fraud defeating the complainant’s title, must be filed. The sale in this case, was made in 1822; and the fraud, if any, was then consummated. In 1824, the statute of limitations as to lands, was extended to ten years. (6 Stat. 238). The complainant, not being barred at the time the statute was extended, was entitled to the benefit of its ¡extension ; and could, at any time within ten years of the sale, have brought this suit.”

A note is appended to this case of *Bradley*vs. McBride, (Rich. Eq. Cases, 202,) in the following-words : “ In *McDonald*vs. May, (1 Rich. Eq. 91,) it was held that the plaintiff, in such a bill, was entitled to but four years. But that decision was made, seemingly, without much consideration, and without knowledge of the case of *Bradley*vs. McBride.”

I do not know how it appears that the decision referred to was made upon sight consideration : unless the inference is drawn from an omission to argue the point or refer to authorities in the judgment of the Court.

The fact is, that whatever doubts might have existed on the subject, (and I conceive there was very little room for any) had been cleared up in two cases, at least, decided after that of *Bradley*and *McBride*and before that of *McDonald*and *May ;*which decisions ruled the very point to the hand of the Court before which the last mentioned case came up, and rendered it unnecessary to enter upon an elaborate examination of it.

*145The first of these cases was that of *Eigleberger*vs. *Kibler,*reported in 1 Hill, Ch. 113. This .was heard on Circuit in July, 1832, and brought up by appeal in January, 1833, before the two Judges who had decided *Bradley*vs. *McBride,*and before Chancellor Harper, who did not sit in that case. The subject was a fraudulent deed for land. It was held on the circuit that ten years were not necessary to bar the remedy; but that four years were sufficient. The judgment, on appeal, was delivered by Mr. Justice O’Neall, who had delivered the opinion in *Bradley*vs. *McBride.*He says: *“*The statute runs from the discovery of the fraud ; and the relief sought is not to recover the land, but to be paid a debt out of it. It is in the nature of an action of deceit. The injury of which the creditor complains, is, that by the fraud of his debtor, he cannot be paid. This is purely a personal, and not a real action: and the statute runs from the discovery of the fraud, as the accrual of the cause of action ; and at the expiration of four years, its bar is complete.” The whole Court concurred.

The second case subsequent to that of *Bradley*vs. *McBride,*was that of *Farr*vs. *Farr,*reported 1 Hill, Ch. 387. A deed had been made of realty and personalty. The complaint was, that it had been obtained by fraud, misrepresentation and concealment, of material facts. It was held to have been sanctified by the statute of limitations: and on appeal, the judgment was delivered by Chancellor Harper (the whole Court concurring). He said *“*the complainants come to be relieved against a fraud : to set aside a deed, &c. I am not aware that there is any doubt about the rule, that a party coming to be relieved against a fraud, must come within four years, (in England six years) from the time the fraud is discovered. In *South Sea Company*vs. *Wymondsell,*(3 Pr. Wms. 143,) it is ruled that the bill must allege that the fraud was discovered within six years before exhibiting it; and the fact must correspond with the allegation.” “The subject is fully considered by Lord Redesdalé in *Hovenden*vs. *Annesley,*(2 Sch. & Lef. 607)”.

*146The Court which decided *McDonald*vs. *May*in 1843, merely followed these decisions : which were reported and well known : and though they may never have kno'wn, or have forgotten, *Bradly*vs. McBride, lost nothing by their ignorance of it.

The Chancellor infers from the evidence that the plaintiff in the present case had notice of the transaction of which he complains as a fraud more than four years before he filed his bill: and the circumstances render his conclusion reasonable. Indeed, he does not aver in his bill that he came to the knowledge of the fraud within four years : but only that (though he may have known it) he did not discover evidence by which he could establish it until within four years.(a)

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

Dunkin, DargaN and Wardlaw, CG., concurred.

*Appeal Dismissed.*

(a)

*Prescott*vs. *Hubhell,*1 Hill, Ch. 217.