EIFFERT et al. v. CRAPS et al., 58 F. 470

MORRIS, District Judge, after stating the case as above, delivered the Opinion of the court. In the case of Hipp v. Babin, 19 How. 271, cited in Ms opinion by the learned judge of the court below, the children of a testator filed a hill in equity to recover possession of lands of their father, which had been sold by his executrix during their minority by virtue of an order of court empowering her to make the sale. The complainants relied upon the invalidity of that order, and the consequent nullity of the sale.

The supreme court held that the remedy at law, by ejectment, was plain, adequate, and complete, and that the hill in equity was rightly dismissed. It was held, also, in Phelps v. Harris, 101 U. S. 375, that, if a deed is invalid upon its face, it is to be repelled by an action at law, and not in equity.

But the complainants in the present case allege, and assign as error in the decree dismissing their bill, that there is also a matter extrinsic the deed itself, or the proceedings in the court of ordinary, viz. the fraud of representing to the court that Craps was an heir and distributee of their father, which gives a court of equity jurisdiction to set aside the deed procured through the fraud. The defendants have set up as a defense the complainants’ laches, and- the ,staleness of their claim.

If, therefore, it be conceded that their allegations of fraud do make a proper case of equity jurisdiction, it .is necessary to examine the bill to see how the complainants ac: count for the long delay from 1851 to 1890, a period of 39 years, and what it is they aver has prevented them from earlier asserting their claim of title. According to the statement of the bill, the youngest of the complainants must have arrived at 21 years of age in 1866.

The bill states that the complainant John Henry Eiffert came to South Carolina, in 1856, to inquire about this land, and was told by Mitchell that it had been sold by the sheriff for debt. He appears to have made no inquiry as to what had become of the proceeds, how it had been sold, or who was in possession. The deed from the sheriff to Mitchell was then on record, the first line of which begins with the recital: “Whereas, Henry Oraps, one of the heirs and distributees of John H. Eiffert, deceased, filed a petition in the court of ordinary,” etc.

All that is alleged in the bill could have been learned in 1856, by the examination of one recorded deed, and by asking who was in possession of the property. The averment of the bill is that: “Some time last fall, your orators were put upon the track of these frauds, and since that time one of them, at much expense, has visited different places in South Carolina, saw the old people who might have knowledge of the matter, examined the records of the clerk’s office, and, by all diligence, have sought to acquire the information contained in this bill.

They submit that no laches or imputation of negligence in asserting their claim can be charged against them, as the whole transaction was fraudulently concealed from them.” The only concealment averred is that Mitchell stated in 1856 that the laud had been sold for debt. The only allegation which contradicts the statement said to 'have been made by Mitchell is the recital in the sheriff’s deed, and that deed was just as open to inspection in a public record in 1856 as it was 34 years afterwards, in 1890.

After so great a lapse of time, after the original purchaser has been dead 12 years, and the land, by a decree for the partition of the estate devised by his will, has been sold at public sale, and resold several times, it is too late to rely upon a fraud 40 years old, which could have been discovered as soon as it was perpetrated, by the inspection of a deed recorded where the record title to the land was to be looked for. In denying relief in the case of Norris v. Haggin, 136 U. S. 392, 10 Sup. Ct.

Rep. 942, the supreme court said: “It is a part of this general doctrine that to avoid the lapse of time, or statute of limitations, the fraud must have been one which was concealed from the plaintiff by the defendant, or which was of such a character as necessarily implied concealment. Neither of these principles can apply to the defendants in this case. The acts which constituted the fraud, as alleged in the bill, were open and public acts. The note and mortgage were recorded in the proper public office of the proper county.

The possession of defend-, ants was obtained by judicial proceedings, which were open to everybody’s examination, and which were probably well known in the entire community.” The salutary rule of courts of equity for discouraging antiquated demauds requires that the bill shall set forth why the complainant has remained so long ignorant of his rights, and if his averments show that he could have learned his rights at any time, if he had chosen to inquire, or to examine a public record, his bill is to be dismissed. Badger v. Badger, 2 Wall. 95; Marsh v. Whitmore, 21 Wall. 185; Brown v. County of Buena Vista, 95 U.

S. 157; Naddo v. Bardon, 2 C. C. A. 335, 51 Fed. Rep. 493. In Stearns v. Page, 7 How. 829, it was said by the supreme court: “And especially must there be distinct averments as to the time when the fraud, mistake, concealment or misrepresentation was discovered, and what the discovery is, so that the court may clearly see whether, hy the exercise of ordinary diligence, the discovery might not have been before made.” See, also, Hammond v. Hopkins, 143 U. S. 224, 12 Sup. Ct. Rep. 418, and Pearsall v. Smith, 149 U. S. 231, 13 Sup. Ct. Rep. 833.

Considering how easily all the facts alleged in the hill could have been discovered at any time since March, 1851, when the slier ill’s deed was recorded, it cannot be said that ordinary diligence has been exercised; and considering that Henry Craps resided on the property for 27 years, — until his death, in 1878, — and the changes and the sales of the property since that date, it is clear that the time for the complainants to have attacked the sheriff’s deed was certainly not later than during the 27 years which, Henry Craps lived after he took possession, and that they have stated no fact sufficient to relieve them oí the imputation of laches.

Our conclusion is that the circuit court was right in dismissing the bill without prejudice to an action at law, and the decree is affirmed, with costs.