Opinion of the Court.

to his knowledge the fact that it was all done by fraudulent means, if the story told in his bill is true. It was, therefore, his duty to at once institute proceedings to correct the wrong done him, and the fact that one lawyer to whom he applied had already been retained by the defendants, instead of being a reason for not proceeding in the matter, was a clear intimation to him that the defendants expected to contest his right, instead of conceding it, and that it was time he should assert that right in a court of justice.

This principal note and mortgage were executed in 1859. The defendants foreclosed and got possession of the property in 1862. The present suit was brought in 1884, twenty-two years after the foreclosure proceedings, and after the possession by the defendants, everything about it being notorious and open to be known to anybody. And if we can suppose that the plaintiff's mental life was a blank up to 1869, there are still fifteen years of silence and inaction and laches unaccounted for. It is obvious that at that time he had sufficient knowledge to understand that his property had passed from him; that it was in the possession of the defendants; that it was claimed that the transfer was obtained under judicial proceedings; and that he must have known that these proceedings were open to investigation; and yet from that time up to 1884, a period of fifteen years, no movement was made. to subject the parties to legal proceedings for relief against the frauds and impositions that had been practised upon him. No hindrance is suggested during all this time to any action by him. The sole reason given is, that because he could not get Mr. Beatty, he could not get any other lawyer whom he could rely upon, or who could put him in possession of the facts he needed; and this declaration is made in the face of the fact that every step on which the defendants had to rely were mortgages, duly recorded judgments rendered in open court, sales made in public, and actual possession for twentytwo years of the property in controversy.

We do not need to rely exclusively on the statute of limitations of the State of California, which makes five years the longest period allowed for bringing suit in cases of this kind.

Opinion of the Court.

It is sufficient to say, that as a court of equity is governed by the analogies of the statute of limitations of a court of law, and as the object of this suit is to do what generally could be done at law, namely, recover possession of real estate, and as the plaintiff is equally guilty of the laches which a court of equity regards in the same spirit it does the statute of limitation, this unexplained delay after the plaintiff had recovered whatever mental capacity he now has, must stand as a sufficient bar to the successful prosecution of this suit.

Even the principle of a court of equity, that time does not begin to run against a party on whom a fraud has been committed until that fraud has been discovered, can do the plaintiff no good in the present case. That he knew about the fraud, if there was one, in 1869, when he applied to Beatty, who refused to take his case; and that the facts out of which he was bound to know this fraud, if his bill be true, existed, were open, were patent, and could not fail to be discovered by any sort of inquiry or investigation, is so clear that there is no room for the doctrine of his having discovered these facts only a year or two before the suit was brought, or indeed after he had employed counsel.

It is a part of this general doctrine, that to avoid the lapse of time or statute of limitation, 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 the mortgage were recorded in the proper public office of the proper county. The possession of defendants was obtained by judicial proceedings which were open to everybody's examination, and which were probably well known in the entire community. The very circumstance that in 1869 the plaintiff consulted a lawyer upon this subject, shows that he was aware of the fact that defendants were contesting his right to the property, and that, if he had made any inquiry at all, he must have known of the proceedings on which they rested their title.

Syllabus.

Under all the circumstances of the case, we are satisfied that the two judges who held the Circuit Court were justified in sustaining the demurrer to the bill. The decree is therefore

Affirmed.

TEXAS AND PACIFIC RAILWAY COMPANY

MARSHALL.

MARSHALL v. TEXAS AND PACIFIC RAILWAY COMPANY.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TEXAS.

Nos. 293, 1105. Argued April 23, 24, 1890.

Decided May 19, 1890.

The city of Marshall agreed to give to the Texas and Pacific Railway $300,000 in county bonds, and 66 acres of land within the city limits for shops and depots; and the company," in consideration of the donation" agreed "to permanently establish its eastern terminus and Texas offices at the city of Marshall," and "to establish and construct at said city the main machine shops and car works of said railway company." The city performed its agreements, and the company, on its part, made Marshall its eastern terminus, and built depots and shops, and established its principal offices there. After the expiration of a few years Marshall ceased to be the eastern terminus of the road, and some of the shops were removed. The city filed this bill in equity to enforce the agreement, both as to the terminus and as to the shops; Held,

(1) That the contract on the part of the railway company was satisfied and performed when the company had established and kept a depot and offices at Marshall, and had set in operation car works and machine shops there, and had kept them going for eight years and until the interests of the railway company and of the public demanded the removal of some or all of these subjects of the contract to some other place;

(2) That the word "permanent "in the contract was to be construed with reference to the subject matter of the contract, and that. under the circumstances of this case it was complied with by the establishment of the terminus and the offices and shops contracted for, with no intention at the time of removing or abandoning them;

Statement of the Case

(3) That if the contract were to be interpreted as one to forever maintain the eastern terminus, and the shops and Texas offices at Marshall, without regard to the convenience of the public, it would become a contract that could not be enforced in equity; (4) That the remedy of the city for the breach, if there was a breach, was at law.

THE Court stated the case as follows:

These are appeals from a decree of the Circuit Court of the United States for the Eastern District of Texas. The suit was originally brought by the city of Marshall in the court of the Fourth Judicial District of the State of Texas against the Texas and Pacific Railway Company, and was afterwards removed by that company into the Circuit Court of the United States for the Eastern District of Texas. The suit was a bill in chancery which sought relief for a violation by the railway company of its contract that it would establish the eastern terminus of its railroad at the city of Marshall, in the State of Texas, and would also establish its principal offices of the road at that place.

The bill sets out as the written evidence of this contract a letter from F. B. Sexton, E. D. Blanch and M. D. Ector on the part of the city of Marshall to Thomas A. Scott, president of the railway company, and the reply of Mr. Scott to this communication. These letters are set out as exhibits to the bill and are as follows:

"MARSHALL, TEXAS, June 26th, 1872. "Col. Thomas A. Scott, President of the Texas & Pacific Railway Company, Philadelphia, Penna.

"Sir: Pursuant to your request we now present to you, to be laid before the board of directors for the Texas and Pacific Railway Company, a written statement of the agreement made at Mrs. King's Hotel, in this city, on the 22d inst., between yourself, on behalf of said railway company, and the undersigned, on behalf of the city of Marshall.

"The county of Harrison (of which the city of Marshall is the county seat) has determined, in the manner required by

Statement of the Case.

an act of the legislature of the State of Texas, passed April 12, 1871, to donate to said Texas and Pacific Railway Company three hundred thousand dollars in the bonds of said county, payable in gold coin, having thirty years to run, and bearing seven per centum interest per annum, and to levy a tax in the manner required by said act, to provide for the payment of the principal and interest of said bonds, upon the condition that said company shall establish its eastern terminus and Texas office at the city of Marshall, and shall locate and construct at said city its main machine shops and car works, thereby securing at said city the connections with said terminus provided for by the act incorporating said Texas and Pacific Railway Company and an act supplemental thereto.

"We understand that a full transcript of the orders and decrees of the county court of Harrison County in regard to this matter has been furnished you.

"In addition to this, the city of Marshall will donate to said company sixty-six acres of land at the place and in the shape designated by you on the map of said city, whereon to locate the main machine shops, car works, and depot of said company at said city.

"The city of Marshall will procure said land by issuing its bonds in accordance with the provisions of the act of the legislature of Texas already referred to, which bonds will be used in the purchase of said land.

"The citizens of Marshall have already undertaken to cash said bonds to an extent sufficient to purchase all of said land which cannot be procured by donation directly from the owners thereof.

"The details of acquiring the title to said land by your company will be attended to by the city, and were explained in our conversation with you.

"In consideration of the donation of the said sum of three hundred thousand dollars and said sixty-six acres of land, the said Texas and Pacific Railway Company will permanently establish its eastern terminus and Texas office at the city of Marshall, and will also establish and construct at said city