Argument for the United States.

247 U.S.

Acts of 1891 and 1896 created self-imposed barriers against suits by the Government only, respecting which the equitable rule now invoked had never been, and cannot be, applied. The statutes neither continued nor repealed any such rule because none had ever existed. The cause of action was not concealed.

Mr. Assistant Attorney General Kearful for the United States:

When the object of a suit is to obtain relief against a fraud, concealment of the cause of action by the wrongdoer suspends the bar of the statute. This is an old and familiar rule of law and equity, as binding on the courts of the jurisdictions in which it prevails as any statute ever enacted by a legislative body. It is applied in mitigation of the strict letter to the limitation statute as if it were written there in the form of an exception to its general language. The reason of the rule is that statutes of limitation are designed to prevent the wrongful assertion of rights after the evidence to repel them has been impaired by lapse of time, and therefore it could never have been intended by any general words of limitation to provide an instrument for the encouragement and promotion of wrong. Counsel assert that the rule has never been applied in courts of law unless the statute under consideration contained an express exception of concealed fraud, and that it has only been applied in courts of equity in the absence of such exception where the statute related solely to actions at law. Hence, it is argued, where the statute contains no such exception, and expressly bars suits in equity, the rule is inadmissible. The correctness of their premise is the vital point of this case. The exact point was carefully examined and determined by this court in Bailey v. Glover, 21 Wall. 342, which has been cited often, since and never questioned. Gifford v. Helms, 98 U. S. 248, 252; Upton v. McLaughlin, 105 U. S. 640, 642; Rosen

435.

Argument for the United States.

thal v. Walker, 111 U. S. 185, 190; Traer v. Clews, 115 U. S. 528, 537; Kirby v. Lake Shore, etc., Railroad, 120 U. S. 130, 136; Avery v. Cleary, 132 U. S. 604, 609; Pearsall v. Smith, 149 U. S. 231, 236; Kinder v. Scharff, 231 U. S. 517, 521.

The rule of Bailey v. Glover has been applied to the statute now under consideration, upon facts similar to those of the case at bar, in Linn & Lane Timber Co. v. United States, 196 Fed. Rep. 593; 203 Fed. Rep. 394, affirmed on another point, 236 U. S. 574; United States v. Puget Sound Co., 215 Fed. Rep. 436; United States v. Southern Pacific Co., 225 Fed. Rep. 197; United States v. Booth-Kelly Lumber Co., 246 Fed. Rep. 970. See also State v. Stone Cattle Co., 66 Texas, 363, where the rule of Bailey v. Glover, was applied to a similar statute upon a state of facts like the present.

The English cases were examined in Bailey v. Glover. Previously, in 1828 Mr. Justice Story in the law action of Sherwood v. Sutton, 5 Mason, 143, had reviewed them exhaustively and demonstrated that in England the exception was allowed in equity both in cases where the limitation act was applicable by analogy merely and in those of concurrent jurisdiction, where the statute bound courts of law and equity alike; and not only in equity but also by the courts of law, without dissent. For a full discussion of the early English and American decisions, leading to the same result, see Angell on Limitations, 6th ed., §§ 183-186, which was written prior to Bailey v. Glover. See also Bank v. Fairbank, 49 N. H. 131, 141; Way v. Cutting, 20 N. H. 187, 190-194; Bowman v. Sanborn, 18 N. H. 205, 208. The statement of Vice Chancellor Malins in Ecclesiastical Commissioners v. Northeastern Ry. Co., L. R., 4 Ch. Div. 845, 859, is true, if at all, only with respect to such equitable claims and titles as were not also cognizable in courts of law. It was not pertinent to the case before him, and was later disapproved by the

Argument for the United States.

247 U. S.

Privy Council. Bulli Coal Mining Co. v. Osborne [1899], A. C. 351, 362.

There is nothing in Bailey v. Glover to indicate that a period running from the time the cause of action accrued was considered any less definite or more susceptible of interpretation than one running from the date of a designated transaction. On the contrary, the court very plainly regarded the statute as precisely like those dealt with in the cases which it cited. The English statute of 21 James I, c. 16, in the application of which the rule originated, concededly did not employ such language, and "it is to be remembered," as Mr. Justice Story said in Sherwood v. Sutton, 5 Mason, 143, 153, "that most if not all the statutes of limitations existing [in 1828] in the several States of this Union have borrowed the language of the statute of 21 of James." It was upon the authorities applying the rule to those statutes that the court relied in Bailey v. Glover. See also Kirby v. Lake Shore Railroad, 120 U. S. 130; Greenwald v. Appell, 17 Fed. Rep. 140, 141; Linn & Lane Timber Co. v. United States, 196 Fed. Rep. 593, 599; United States v. Southern Pacific Co., 225 Fed. Rep. 197, 202; State v. Stone Cattle Co., 66 Texas, 363; State v. Wichita Land & Cattle Co., 73 Texas, 450; Wichita Land & Cattle Co. v. State, 80 Texas, 684; Johnston v. Roe, 1 Fed. Rep. 692, 694; Eddy v. Eddy, 168 Fed. Rep. 590; Bank v. Fairbank, 49 N. H. 131; Newberry v. Wilkinson, 199 Fed. Rep. 673, 682-686.

The fact that the rule of Bailey v. Glover has been very generally adopted by statute in the States, proves only the solid sense and natural justice of the rule. The effect of those statutes is practically to overrule the decisions which were disapproved in Bailey v. Glover and to make the rule of that case universal in its application. State v. Stone Cattle Co., 66 Texas, 363, 367; Bank v. Fairbank, 49 N. H. 131, 141.

The Act of 1896 concerned only patents "erroneously

issued" under railroad and wagon road grants, and the committee report which accompanied that act shows that the Act of 1891 grew out of the confusion resulting from the administration of railroad grants. But even if it appeared that Congress intended to deal specifically with cases of fraud in the acquisition of coal lands by the use of dummy entrymen, yet, as said in State v. Stone Cattle Co., 66 Texas, 363, 367: "It could scarcely have been intended that the fraudulent purchaser should reap a benefit from an aggravation of his offense by the fraudulent concealment."

The greater liability of the Government to fraudulent imposition is all the more reason why it should have the benefit of this "universally implied" qualification of the broad language of the statute.

The Government may receive the notice through its proper officer, like a corporation. See People v. Blankenship, 52 California, 619; State v. Giles, 52 Indiana, 356; State v. Furlong, 60 Mississippi, 839; State v. Warner Valley Stock Co., 56 Oregon, 283, 304; State v. Wichita Land & Cattle Co., 73 Texas, 450.

There were affirmative acts of concealment; but it is enough that the fraud was such as to conceal itself.

MR. JUSTICE DAY, after making the foregoing statement, delivered the opinion of the court.

The Circuit Court of Appeals found that the evidence fully supported the findings of the trial court. We find no occasion to disturb the findings of fact by two courts. The question presented for our consideration is whether the suit was barred by the statute of limitations under the Act of March 3, 1891, 26 Stat. 1093, which provides:

"That suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents."

As averred in the bill, and found by the courts, the frauds were concealed until after six years had elapsed from the issuance of the patents-"After it was supposed the statute of limitations had barred any action, the participants in the fraud talked very freely, telling the truth when it was thought it would do no harm." It is the contention of the appellants that the statute was intended to bar all actions after six years from the date of the issuance of the patent, that if for six years the Government has failed to discover the fraud, no matter what its diligence in that respect may be, its action against the guilty parties is forever barred and they may hold in security the lands thus obtained by grant from the United States by means of fraud perpetrated in defiance of its laws enacted for the disposition of the public domain. We are unable to agree with this contention. We think the true rule is established in federal jurisprudence by the decision of this court in Bailey v. Glover, 21 Wall. 342. In that case a question was presented under the Bankruptcy Act of 1867, which provided that no suit at law or in equity should be maintained by or against an assignee in bankruptcy, or by or against any person claiming an adverse interest, touching the property or rights of property of the bankrupt, in any court whatever, unless the same should be brought within two years from the time the cause of action accrued for or against the assignee. The action was brought to set aside a conveyance on the ground of fraud. Among other things it was charged that the bankrupt, his wife, son and father-in-law being defendants in the case, kept secret their fraudulent acts, and endeavored to conceal them from the knowledge both of the assignee and of Winston & Company, a creditor proving a debt, whereby both were prevented from obtaining any sufficient knowledge or information thereof until within the previous two years, and that even up to the time suit was instituted they had not been able to obtain