Moore v. Greene et al. ELIZABETH MOORE v. RAY GREENE et al. Under the laws of Rhode Island, a will of lands cannot be admitted as evidence of a devise, until it has been duly probated by the decree of a Court having jurisdiction to admit it to probate. To avoid the bar of the statute of limitations, set up in the answer, upon the ground of a concealed fraud, the bill must allege that the fraud was discovered within twenty years, and must show when and how it was discovered; and the evidence must satisfactorily support these averments. The statute of limitations bars equitable relief founded on a good legal title fraudulently suppressed or destroyed, in twenty years after the discovery of the fraud, in analogy to the statute bar operating in Courts of Law; for a Court of Equity will not relieve against fraud, after the lapse of such a time since its discovery, as would have barred the title at law, if no fraud had existed. THE case is stated in the opinion of the Court. CURTIS, J. This is a suit in equity. The bill states that John Manton, of Johnston, in the State of Rhode Island, died in the year 1767, leaving a will, duly executed, to pass his lands, whereby he devised them to his two granddaughters, Lydia and Betsy Waterman, children of his then deceased daughter Anna, wife of Benjamin Waterman; that Betsy Waterman intermarried with Daniel Carpenter, and the complainant is her daughter and sole surviving heir. The bill further states, that at the time of his decease, John Manton left two other daughters, one, the wife of Joshua Greene, and the other, the wife of Ephraim Pearce; and that the testator's three sons-in-law, conspiring together to defraud the two grandchildren of the lands devised to them, procured, by fraud, the town council, which then had jurisdiction over the probate of wills, to refuse probate of Manton's will, and thereupon to appoint an administrator. That, in further pursuance of their fraudulent design, they proceeded to, and did make partition by deed among themselves, in severalty, of all Manton's lands, and then procured the administrator of Manton, Moore v. Greene et al. under a license from the General Assembly of the Province, to sell the lands to pay fictitious debts of Manton, which they pretended were due to some of them, and so obtained colorable titles to the lands in severalty, under which it is alleged the defendants now claim some of those lands which the bill seeks to recover. The defendant, Ray Greene, answers, that he holds by descent from his father, and purchase from other heirs of his father, certain lands, formerly belonging to Manton, purchased by his grandfather of the administrator of Manton, and devised by his grandfather to his father. He denies all knowledge or information of the fraud charged in the bill; avers, upon information and belief, that his grandfather's purchase was legal and fair; and sets up the possession of his grandfather, of his father, and of himself, for a period of upwards of eighty years, and the statute of Rhode Island for quieting possessions, in bar of the bill. The other defendant, Hawkins, while he does not admit that the lands held by him were ever lands of Manton, sets forth his title thereto by purchase, and also relies on the possession of himself and of those under whom he claims, and upon the same statute for quieting possessions, as a bar. He also denies all knowledge or information of the fraud alleged in the bill. The complainant presents two titles. The first by devise to her mother, whose heir she is by the alleged will of John Manton, of one moiety of his lands. The second by descent to her mother from John Manton, one of whose heirs she was, being one of the two children of his deceased daughter. The first of these titles it is not possible to sustain. This Court can give no effect to a will of lands in Rhode Island, until it has been duly proved by the competent authority empowered to allow wills, and admit them to probate. Tompkins v. Tompkins, 1 Story's R. 547; Mathewson v. Sprague, 1 Moore v. Greene et al. Curtis, 457. But if it were otherwise, there is no competent evidence in this case to show what the will of Manton was. The will itself is not produced, nor is there one witness examined in the cause who ever saw it, or can speak to any part of its contents. All there is upon the record on this subject, are certain traditions existing in the neighborhood, that Manton's will gave his lands to these two grandchildren. Manifestly, this is wholly insufficient, and the title by devise must be at once laid aside. The other title by descent seems to be made out in proof, so far as respects the pedigrée; and the first question is, assuming that the lands held by the defendants belonged to Manton at his decease, whether the bar of the statute of limitations can be got over. Before considering this question, it is proper to state, that it has not been insisted, nor could it be, consistently with what appears on the face of the bill, that the complainant is not within the statute, because the alleged frauds had been kept concealed, so that the complainant, or those under whom she claims, had only discovered them within twenty years. For the bill alleges, that as early as 1797, these alleged frauds were fully investigated in the course of a trial of an action brought by other heirs of Manton, and that that suit was brought in consequence of inquiries made by the complainant and the plaintiffs in that suit. And the bill also avers, that from the death of John Manton, in 1767, up to the year 1824, renewed and continual claims have been made by the heirs of Lydia and Betsy Waterman, of whom the plaintiff is one, for their portions of Manton's lands, as his rightful heirs at law, upon all persons in possession. It does not say, in terms, that those continual claims were founded on the frauds charged in this bill; but as no other ground of claim is therein suggested, the fair conclusion is, 1 See Gaines v. Chew, 2 How. 646, and cases there cited. Moore v. Greene et al. that during all this period, the frauds alleged have been known and insisted on. It is true, the bill alleges that the complainant was ignorant, until some time not specified, that Manton died seized of part of these lands, being those situate in the town of Gloucester; but as the public records of the town showed the fact, and as she did become apprised of it as soon as she caused them to be examined, and as the fact of his dying so seized, did not affect her title to relief, but only introduced another tract of land to which the same relief might be extended, it does not seem to be material, if she has recently made this discovery. But there is no proof that it is a recent discovery; and after a litigation which, according to the bill, has lasted since 1767, concerning the title of Manton's lands, there is no presumption that the complainant had not notice of what appeared on the public registry of titles of the town, where Manton was known to her, at one time, to have had extensive possessions. The bill does contain an averment, that ten years have not elapsed, since the discovery of the frauds of the sons-in-law and administrator of Manton; but it not only fails to show when and how it was discovered, (Stearns v. Page, 7 How. 829; Fisher v. Boody, 1 Curtis, 220,) but the averment is inconsistent with the other statements in the bill already detailed. I am of opinion therefore, that this case stands nakedly, upon the statute of limitations, the bill not averring such concealment and ignorance of the alleged fraud, as to avoid the bar, if one exists upon the facts. For it is settled that the statute of limitations is applied by a Court of Equity to a case of fraud, after the expiration of twenty years from its discovery by the party defrauded. And it is equally clear, that if the complainant would avoid the bar of the statute of limitations, he must show by his bill the grounds of such avoidance. In Stearns v. Paige, 7 How. 829, Mr. Justice Grier, in delivering the opinion of the Court, speaking of charges of fraud where much time had elapsed, says, "and especially must there be distinct averments as to Moore v. Greene et al. the time when the fraud was discovered, and what the discovery is, so that the Court may see, whether by the exercise of ordinary diligence, the discovery might not have been before made." In Carr v. Hilton, 1 Curtis, 390, this Court held, that to avoid the bar of the statute of limitations, the complainant must not only allege his ignorance of the fraud, but must show when and how it was discovered, and offer satisfactory evidence of the truth of these averments. These positions are deducible from settled rules of pleading. If a bill contains no sufficient matter to avoid the bar of the statute of limitations, the defendant may plead what is called a pure plea of that statute; and unless the complainant amends his bill, and inserts what he relies on as a reply to the statute, his suit is at an end. But if he does so amend, and avers infancy, coverture, or ignorance of fraud, he must support these averments, if they are denied, or he still fails to remove the bar. And as this bill does not contain any satisfactory statement, as to when or how the alleged fraud was discovered, and the case is entirely bare of evidence to show these facts, and the fraud is denied by the answers, the Court cannot treat this as a case of secret fraud, discovered by the complainant within twenty years. That those under whom the defendants claim, acquired an actual and open seizin in 1767, under deeds purporting to convey the fee-simple of the land, is shown by the bill. It details, with particularity, the different partition deeds, and deeds from Manton's administrator, charges them to be tainted with fraud, and avers, "whereby the said Lydia and Betsy Waterman, while infants, and their heirs were and have been wrongfully and unjustly defrauded, and ever since fraudulently kept out of possession of their rightful shares, proportions, and inheritances of, in, and to the large real estates of their maternal grandparent." Taking the averments of the bill together, they amount to this; that the three sons-in-law of Manton, entered, in 1767, under deeds conveying the lands in |