Evening star. [volume] (Washington, D.C.) 1854-1972, 1894-02-22
NOT BARRED BY STATUTE
An Interesting Opinion by the Court of
Appeals.
In Case of Fraud the Statute of Limi-
Time the Fraud Is Discovered.

Inc court or Appeals recently decided
case Of more than ordinary interest TO real
estate men and lawyers. The case was
that of James p. Lewis, appellant. versus
William o. Denison, appellee, in which
Lewis sued Denison for the difference be-
tween the prices at which he authorized
Denison to dispose of two pieces of real
estate and the prices which Denison. I'M
known to Lewis, at the time of the sale. ac-
tually obtained for the real estate. Deni-
son, it was claimed acted as the agent of
the owner and the purchasers at the same
time. Lewis did not ascertain what he al
leges to be the real facts in the case until
three years had elapsed and Denison plead
ed the statute of limitations. The plea was
sustained by the lower court, but the Court
of Appeals has reversed the Judgment of
the lower court and remanded the case for
a new trial. holding that 1t would be re-
proach to justice to allow a man, by such
a plea. to escape the consequences of his
fraud. If fraud were committed The opin-
ion of the court which was unanimous
was written by sir. Justice Shepard. 1t set
forth the case as follows:
The first question to be decided in this
appeal is this: Does the bar of the statute
of limitations run in suits at law, in the
courts of this District, where there has been
fraudulent concealment of the cause of ac-
ton?
THE plaintiffs cause of action is set out
with elaborate detail in two counts of the
declaration, and we will only state It's sub
stance sufficiently to show the manner in
which the questions to be decided have
arisen.
THE allegations are: That in January,
1857, plaintiff who was the owner OF lots
SO and d. in division and Leightons sub
division of Mt. Pleasant, in the District OF
Columbia. employed defendant. who was
real estate agent to sell the same for him.
That defendant undertook to find pur-
chaser at plaintiffs price of twenty-five
foot
That on May IL. 1857, defendant advised
him that he had contracted to sell lot ~ at
twenty-five cents per square foot, and had
received a deposit of $50 on account there
of; and urged its acceptance by him as be-
ing a good trade. &c.
That plaintiff. cOntiding in his good faith
and acting under his persuasion, agreed TO
the sale at that price, and executed a deed
to Lula NJ Barnum, whom defendant rep
resented to be the purchaser, and received
the sum of s., 1851. out of which he paid
defendant commission of per cent for
his supposed services. That in July, 1881,
defendant made substantially similar rep
reservations respecting the sale OF lot g3,
save as to price, which was twenty-five IN
stead of twenty-five cents, per square foot,
and induced plaintiff, in the same way, TO
convey il to Elizabeth ID. Battelle, who,
through defendant, paid him the purchase
money, to wit: S5.13923. and Of which he
paid defendant commission of per cent
for making said sale. That during this
time, and unknown TO plaintiff, defendant
was acting as agent and adviser of said
Elizabeth ID. Battelle in the Investment Of
her money, and so acting, represented TO
her that said lots 81 and 81 could be bought
fOc thirty cents per square foot, which was
the lowest price the owner would take for
them. That he advised her 10 purchase at
said price. and induced her to offer the
same, ard make the deposit to secure the
CONTRACT. CFhe sale of lot III was consum-
mated in May, 1881. and of lot 80 in July.)
That Lula NJ. Barnani, t. when the deed
I tf lot al
of defendant, was not the purchaser; but
was clerk in the office Of defendant, and
ner name was Used by him as mere con-
duit of the title, the better to enable him to
practice his deception. That the real pur-
chaser of 81. as well as of ~ was said
Elizabeth ID. Battelle, who delivered to de-
PENDANT the full amount of the price of said
lots at thirty cents per square foot. That
out of the sums so received defendant turn
ed over to plaintiff the purchase money at
the rates of twenty-five and twenty-five
cents per foot. respectively, less the com
missions aforesaid, all Of which was re-
ceived by plaintiff without knowledge of
the fraud and deception of the defendant.
That plaintiff is entitled TO recover from de-
PENDANT the difference between the sums SO
raid him and the sums actually received
from said Battelle on the sales of the lots.
Defendant filed pleas of the statute of
limitations OF three years, and of not guilty,
to each count of the declaration
PLAINTIFF 3 replication to the pleas of limi-
tation, sets out, in avoidance thereof, that
by reason of the fraud of defendant and its
concealment from plaintiff. he had been
kept from a knowledge OF his right of
ton until within three years before the in
stituti0n of his suit Defendant demurred
to this replication, as had in substance, and
was sustained in the court below"
When the Statute Runs.
Justice Shepard in his opinion said that
it is now universally conceded that the
bar of the statutes of limitations will
nn nr1an ~ n
the fraud has been discovered, or until
such time as by the use of the ordin-
airy care 1t might reasonably have been
discovered. There has, he said, been
great diversity of opinion with respect
to the operation of this rule in &C
lions at law. The question was thoroughly
considered by Justice Story in the circuit
court at an early day and after an eX-
haustive review of the authorities and dis
CuSSiOn of the principle, he considered that
the rule should be made to apply at law as
well in equity. The weight of authority
at the present time supports the conclusion.
The only expression of opinion by the Su-
preme Court of the District which the
Court of Appeals has been able to lind
ports the same conclusion. Reference is
made to the case of Moses VS.. Taylor.
Justice Shepard quoted the opinion of Mr..
Justice Miller in the case of Bailey VS..
Glover, in which the justice said ITO hold
that by concealing a fraud or by commit
ting a fraud in manner that it concealed
hitting the fraud could plead the statute
of limitations TO protect 1t, is to make law
which was designed to prevent fraud the
means by which it is made successful and
secure"
In accordance with these views" said
Justice Shepard, 1--WE must hold that the
court erred in sustaining the demurrer to
the replication. If ii be made to appear on
the trial that the defendant kept the fraud
concealed, or that it was of such nature as
to remain concealed after preparation, and
that therefore plaintiff did not discover it,
nor discover any facts sufficient to put him
upon inquiry, which If followed with ordin-
airy diligence would have led to its dis
cOve-y, until within three years before the
time OF filing his suit, the statute of limita-
tions will be no bar to his recovery"
The COurPs Conclusions.
After discussing other points in the case
the opinion Of Justice Shepard goes on to
say:
For the punishment and prevention of
frauds, and III the interest OF morality, de-
PENDANT should be held to be stopped, to
plead that he did not make bona Tide sale
OF PLAINTIFFS lots, and that he defrauded
another instead of the plaintiff in convert
ing to his own the difference between
the money received and the money paid
over. To this il may be answered that de-
PENDANT WAS the agent of both plain tiff and
Battelle and that this doctrine would sub
ject him to double recovery, because Mrs
Bdttelle might also recover the