
    Stivens v. Summers et al.
    
    
      Time of commencing actions — Section J¡982, Revised Statutes— Actions for relief on ground.of fraud — Action not to accrue till discovery of fraud — Includes action to set aside fraudulent deed — Must he actual and not constructive notice — Filing of deed, not constructive notice, tohen — Interpretation of law.
    
    1. In Section 4982, Revised Statutes, which limits to four years actions for relief on the ground of fraud, the saving clause, “hut the cause of action in such case shall not he deemed to have accrued until the discovery of the fraud,” embraces actions to set aside deeds which are constructively fraudulent as to creditors of the grantor.
    2. The clause does not contemplate a constructive discovery) and the cause of action does not accrue when the fraudulent deed is filed for record unless the plaintiff then receives actual notice of its execution and of the* circumstances which render it fraudulent.
    (Decided June 2, 1903.)
    Error to the Circuit Court of Clinton county.
    Plaintiff, brought her action in the court of common pleas to set aside two deeds for real estate executed by the defendant, John J. Summers, to his two sons as being in fraud of creditors, and to subject the lands conveyed to the payment of a debt due from the grantor to plaintiff at the time of the conveyance. The cause ivas tried in the circuit court on appeal, and upon the issues joined the following facts were found by that court:
    “First — On December 25, 1895, one J. W. Summers borrowed of the plaintiff nine hundred ($900) dollars and gave plaintiff therefor his promissory note with the defendant John J. Summers, as surety, due in one year from date, with seven per cent, interest thereon; the only consideration for said note was said money so loaned to said J. W. Summers and said John J. Summers bore no relation to said note except as surety, which fact was known to plaintiff.
    “Second — On December 1,1899, the plaintiff, Mary J. Stivens, by the consideration of the court of common pleas of Clinton county, Ohio (in which county, the said John J. Summers and J. W. Summers resided) duly and regularly recovered a judgment against the said John J. Summers and J. W. Summers, on said promissory note, for the sum of nine hundred and fifty-eight and sixty-two one-hundredths ($958.62) dollars being the amount then due on said note, and also for costs, amounting to twelve and three one-hundredths ($12.03) dollars. Said judgment is still in force and wholly unpaid and unsatisfied, both John J. Summers and J. W. Summers being insolvent.
    “Third — At the time said debt to plaintiff was incurred, to-wit, December 25, 1895, the said John J. Summers was the owner in fee simple of a large amount of real estate situate in Clinton county, Ohio, and was also owner of a large amount of personal property, and was at that time able to meet and pay all debts and claims against him.
    “Fourth — On March 18, 1896, while the plaintiff was a creditor of the said John J. Summers, as above stated, he, the said John J. Summers and Hannah Summers, his wife, executed and delivered to his son, Isaac R. Summers, a warranty deed thereby conveying to his said son, David E. Summers, seventy-five and sixty-one one-hundredths (75.61) acres of land belonging to the said John J. Summers, of the value of sixty ($60) dollars per acre, a total of forty-five hundred and thirty-six and sixty one-hundredths ($4,536.60) dollars, and fully described in the amended petition , of plaintiff as tract No. 1. Said deed contained a recital as to the consideration thereof, in the words and figures following, to-wit:
    “ ‘In consideration of natural love and affection, and thirteen hundred ($1,300) dollars to him paid hy the said Isaac R. Summers.’ Said^ deed contains no other recital as to the consideration therefor. Said deed also reserved a life estate in said lands, to the said John J. Summers and Hannah Summers, his wife, for and during their joint lives, and the life of the survivor of them. No consideration was in fact paid by the said Isaac R. Summers to the said John J. Summers for said land, but the said Isaac R. Summers did execute and deliver to the said John J. Summers, four promissory notes, each for the sum of three hundred and twenty-five ($325) dollars, all of said notes made payable to the administrator of John J. Summers, deceased; the first note due in one year, the second in two years, the third in three years, and the fourth in four years, after the deaths of both John J. Summers and Hannah Summers, his wife, without interest; it being the intention that no portion of said notes should be paid, until the times above limited after the death of the survivor of said two grantors.
    “At the same time, and as part of the same transaction, the said John J. Summers and Hannah Summers, his wife, executed and delivered to his son, David E. Summers, a warranty deed thereby conveying to his said son, David E. Summers, seventy-five and sixty-one one-hundredths (75.61) acres of land, belonging to the said John J. Summers, of the value of sixty ($60) dollars per acre, a total of forty-five hundred and thirty-six and sixty hundredths ($4,-536.60) dollars and described in the amended petition of plaintiff, as tract No. 2. Said deed also contained a recital as to the consideration thereof, in the words and figures following, to-wit: ‘In consideration of natural love and affection, and twelve hundred ($1,-200) dollars, to him paid by the said David E. Summers.’ Said deed contains no . other recital as to the consideration therefor. Said deed also reserved a life estate in said lands to the said John J. Summers and Hannah Summers, his wife, for and during their joint lives, and the life of the survivor of them. No consideration was in fact paid by the said David E. Summers to the said John J. Summers for said land, but the said David E. Summers did execute and deliver to the said John J. Summers, four promissory notes, each for the sum of three hundred ($300) dollars all payable to the administrator of John J. Summers, deceased. The first note was due in one year, the second in two, the third in three, and the fourth in ,four years after the deaths of both John J. Summers and Hannah Summers, his wife, without interest; it being the intention that no portion of said notes should be paid until the times above limited after the death of the survivor of said two grantors.
    “Both of said deeds were voluntary conveyances, and at the time of their execution and delivery, to-wit : March 18, 1896, the said John J. Summers was indebted to divers and sundry persons, including plaintiff, in an amount greatly in excess of the value of the property Avliich he retained in his hands liable to the payment of his debts.
    “In the execution and delivery of said deeds, there was no actual intent on the part of the said John J. Summers, Isaac R. Summers, and David E. Summers, or any of them, to hinder, delay or defraud the cred-. itors of the said John J. Summers, the purpose of said John J. Summers in executing said conveyances, being to make a settlement of his property among his children, in his lifetime. Said deeds were both filed for record with the recorder of Clinton county, Ohio, on March 28, 1896, and on March 31, 1896, were both duly recorded in the land records of Clinton county, Ohio.
    “Fifth — On March 18, 1896, and ever thereafter, the said J. W. Summers was, and still is insolvent; and on November 29, 1899, he made a general assignment for the benefit of his creditors. On the final settlement of said assignment by the assignee, after applying all of his property thereto, there remained unpaid of his indebtedness about the sum of eleven thousand ($11,-000) dollars.
    “Sixth — The plaintiff, Mary J. Stivens, had no actual knowledge or notice of the execution and delivery of said two deeds to the said Isaac R. Summers and David E. Summers, or of the existence of» said deeds, until December 1, 1899, and she, the plaintiff, did not actually discover any of the facts constituting the alleged fraud in this case until December 1, 1899.
    “Seventh — The plaintiff commenced this action on March 31, 1900. As its conclusions of law upon the above facts the court find: (1) That said two deeds are constructively fraudulent only. That the plaintiff’s cause of action is barred by the statute of limitations, and she cannot recover in this action, and thereupon the court find for the defendants, John J. Summers, Isaac R. Summers and David E. Summers, on the issues joined.”
    This is a petition in error for the reversal of the judgment in favor of the defendants which the circuit court rendered upon said finding.
    
      Mr. A. E. Clevenger and Messrs. West & Wallcer, for plaintiff in error.
    Section 6344, Revised Statutes, says: “All transfers, conveyances, or assignments made by a debtor or procured by him to be made, with intent to hinder, delay, or defraud creditors, shall be declared void at the suit of any creditor,” etc.
    Conveyances constructively fraudulent, as well as those with an actual intent, are included within this statute. Jamison v. McNally et al., 21 Ohio St., 295; Loudenback v. Foster, 39 Ohio St., 203.
    The intent or intention is an emotion or operation of the mind, and can usually be shown by acts or declarations; and as acts speak louder than words, if a party does an act which must defraud another, his declaring that he did. not by the act intend to defraud is weighed down by the evidence of his own act. Every man is presumed to intend the natural consequences of his own acts. The intent may be to hinder or delay creditors, as well as to defraud them, and either is sufficient under the statute. Intent alone, however, is not sufficient to render a conveyance fraudulent unless it is carried out so as to prejudice creditors; but when such is the natural and proximate result of the debtor’s act, it may be fraudulent, notwithstanding the motive or intention. 8 Am. & Eng. Enc. Law, 758; Wait on Fraudulent Conveyances, Secs. 9-11; Coleman v. Burr, 93 N. Y., 31; Winchester v. Charter, 97 Mass., 140; Crumbaugh v. Kugler, 2 Ohio St., 374.
    In its conclusions of law on the facts found, the circuit court fully recognize and apply the law as stated above. The court find that the transaction, while free from an evil intent, is, nevertheless, constructively fraudulent as against the plaintiff and the other existing creditors of the said John J. Summers. The court, however, held that plaintiff’s cause of action was barred by the provisions of Section 4982, Revised Statutes.
    In construing this statute, the court held that in cases of constructive fraud only, that is, fraud free from actual evil intent, the proviso in said section, viz.: “But the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud” has no application; that the four years’ limitation begins to run from the commission of the acts constituting the alleged fraud; that said proviso applies to a case of actual fraud only; that is, to a case where the intent to defraud actually exists. This was the sole question decided by the circuit court, and applying this statute, as thus interpreted, to this case, the court held that plaintiff’s cause of action was barred, more than four years having elapsed since the commission of the alleged fraudulent acts.
    Under the code of Ohio, there is but one form of action, which is known as a civil action. Section 4971, Revised Statutes: “It is to be borne in mind that in this state, the question is not embarrassed by distinctions arising between actions at law and suits in chancery; for whatever rights the party may have are enforcible by the civil action of the code.” Conger v. Atwood, 28 Ohio St., 134. On the same point are a number of Ohio cases, as follows: Clayton v. Freet, 10 Ohio St., 544; Goble v. Howard, 12 Ohio St., 165; Neilson v. Frye, 16 Ohio St., 552; Jones v. Timmons, 21 Ohio St., 596; Hull v. Bell, 54 Ohio St., 228; Pierce v. Stewart, 61 Ohio St., 422.
    
      There being in Ohio only the one form of action, viz., the civil action of the code, Section 4982, Revised Statutes, in all of its parts, applies to an action for relief on the ground of fraud, whether the fraud be constructive or actual. If the fraud complained of be constructive only, the action for relief is still an action for relief on the ground of fraud. It can not possibly be anything else; and the proviso in section 4982: “But the cause of action in such, case' (that is, such case or action, for relief on the ground of fraud), shall not be deemed to have accrued until the discovery of the fraud,” applies, whether such action for relief be on the ground of a constructive or an actual fraud. The statute makes no distinction whatever, and it is judicial legislation to read into this proviso an exception not included within its plain terms. Thus, it seems to us that the language itself of the section is conclusive against the construction placed thereon by the circuit court.
    Again, the limitations of the code of civil procedure, as to the time of commencing civil actions, are applicable as a bar, to all suits comprehended within the civil action of the code. This civil action of the code, is a substitute for all such judicial proceedings as were previously known, either as actions at law, or suits in equity. Therefore, the statute of Ohio limiting the time of actions for relief on the ground of fraud, embrace both legal and equitable actions. Chinn v. Trustees, 32 Ohio St., 236; Rife v. Lybarger et al., 49 Ohio St., 427.
    Our statute of limitations, being a part of the code, is to be liberally construed in order to promote its object; and the rule of the common law that statutes in derogation thereof, must be strictly construed, has no application to it. Section 4948, Revised Statutes. McAllister v. Hartzell, 60 Ohio St., 88.
    The foregoing being the law of Ohio, we must look to the statute itself, its terms and its purposes, in order to determine its meaning. And when considered in this light, the conclusion is irresistible that it was the intention of the legislature that this proviso in section 4982 should apply to all actions for relief on the ground of fraud, whether the fraud complained of be constructive or actual. Such is the construction given to a similar statute by the Supreme Court of California. Boyd v. Blankman, 29 Cal., 19. This case is cited and approved by the Supreme Court of California in the case of Currey v. Allen, 34 Cal., 258.
    The circuit court based its conclusion that the saving clause of the Ohio statute applies only to cases of actual fraud, largely on the case of Farnum v. Brooks, 9 Pick., 212. This cause was decided under the statute of the state of Massachusetts.
    It will be noted that the Massachusetts statute is widely different from the rule established by section 4982 of our code. Under this statute it is not necessary, and indeed is not usual, that the cause of action should be based upon fraud, but all that is necessary is, that a cause of action should be fraudulently concealed ; while the Ohio statute requires that the cause ■of action, to be within its purview, should be founded upon fraud itself. Under the Massachusetts statutes, the fraud in question is not that which gives, hut that which conceals a cause of action, and any cause of action whatever may be its character, if fraudulently concealed, comes within the purview of the statute. Thus an action based upon a fraud may or may not be within the statute. Certainly, a case decided upon such a statute as this, can afford no light in construing such a statute as we have in Ohio. This distinction is clearly pointed out in Howk v. Minnick, 19 Ohio St., 462.
    Under the Massachusetts and Indiana statutes, and states Avith like statutes, in every case where fraud is the foundation of the action, in order to toll the statute, there must be two separate and distinct frauds, viz.: One, which is the foundation of the action, and the other the fraudulent concealment of that-cause of action from the party aggrieved. In giving to the Ohio statute such construction, the circuit court, it seems to us, widely departed from its manifest scope and meaning. It is easy to see how, under such a rule, actual fraud alone can toll the statute. These statutes require an intentional, fraudulent concealment of the cause of action from the party aggrieved, to prevent the running of the same. A man never intentionally conceals an act, if his conscience accuses him of no wrong in the act. The very fact of fraudulent concealment proves a conscious fraud. Hence, under these statutes, the exception, that is, the fraudulent concealment which prevents the running of the statute, can never exist, except in cases of actual fraud. This is shown by the following • decisions under these statutes: Wynne v. Cornelison, 52 Ind., 312; Township, etc., v. French, 40 Ia., 601; Stanley v. Stanton, 36 Ind., 445; Stone v. Brown, 116 Ind., 78; Wear v. Skinner, 46 Md., 257.
    Now the circuit court construed section 4982 as though it read: “Actions for relief on the ground of fraud; but the cause of action shall not be deemed to have accrued until the discovery of the fraud in all such cases where there has been a fraudulent concealment of the cause of action from the party aggrieved.”
    As pointed out above, this requires two cases of fraud to be made out in every action, before it is possible to toll the statute, and, of course, this confines the exception to cases of actual fraud only. It is well settled that the record, or registry of a deed is constructive notice only to those who claim through, or under the grantor by whom such deed is executed. Blake v. Graham, 6 Ohio St., 583; Leiby v. Wolf, 10 Ohio, 83; Hibbs v. Insurance Co., 40 Ohio St., 557.
    The holder of a mortgage on real estate is not charged with constructive notice of a subsequently executed and recorded conveyance of a portion of the premises covered by his mortgage; and he can not, without proof of actual notice of such conveyance, or circumstances equivalent thereto, be charged with the value of other portions of the mortgaged property released by him after the record of such subsequent conveyances. Sharp v. Myers, 1 Circ. Dec., 374; 2 C. C. R., 82. Affirmed by the Supreme Court without report. Batterson v. Sharp, 24 Bull., 444.
    It is a fundamental proposition, established with complete unanimity, that a registration properly made does not operate as constructive notice to alL the world, but only to those persons who, under the policy of the legislation, are compelled to search the records in order to protect their own interests. It is. equally well settled, that such record is not notice to the holders of antecedent rights, that is, to those who have acquired their right before the time when the antecedent right may, in pursuance of the statute, be defeated by the fact of the prior record. In other words, the registration of an instrument does not act as notice backwards in time. 2 Pomeroy’s Equity, Sec. 657; Stuyvesant v. Hall, 2 Barb. Ch., 151; Stuyvesant v. Hone, 1 Sand. Ch., 419.
    The record of a deed is notice only to those who are bound to search for it, including parties subsequently dealing with the land or concerned with its title, but antecedent rights are not generally affected by registration, and the record is not notice to the grantor in the deed. Davis v. Monroe, 187 Pa. St., 212; 67 Am. St., 581.
    Where a tenant in the actual possession of real estate, fraudulently acquires a tax title thereto, the statute of limitations applicable to bar his landlord from maintaining suit to set aside the tax title, is one for relief on the ground of fraud; but in such case the statute does not begin to run until the fraud is discovered, and for this purpose there is no constructive discovery. If the tenant fraudulently takes the deed in his own name, and puts it on record, it is not notice to his landlord which would set the statute running, that would bar him from' an action for relief against the fraud; the landlord and his grantees would be entitled to the full time limited by law after the actual discovery thereof. Duffitt v. Tuhan, 28 Kan., 292. This case is especially in point for the reason that the statutes of the state of Kansas on this question are identical with those of Ohio.
    In Wisconsin it is likewise held that actual notice of the facts is necessary. Fox v. Zimmerman, 77 Wis., 414. The notice required to effect an antecedent creditor of a voluntary conveyance, is actual notice. Ward v. Thomas, 81 Ky., 452; Gen. Stat. of Ky., Sec. 6, Art. 3, Chap. 71.
    
      
      Messrs. Smith & Clevenger, for defendants in error.
    There is hut one question of law arising out of the finding of facts, and that is whether an action to set aside deeds on the ground of fraud is barred when the action was commenced more than four years after the deeds were filed for record, and when the facts show no actual fraud but a state of facts that warrants the court in applying the term legal, or constructive, fraud.
    
    Plaintiff in error mistakes the real issue by arguing in her brief, that conveyances constructively fraudulent as well as those involving actual fraud, fall within the provisions of section 6344, and cites Jamison v. McNally et al., 21 Ohio St., 295. We-do not dispute this doctrine, but the question in this case is when actions under section 6344 are barred by the 'statute.
    Plaintiff in error, who was plaintiff below, clearly recognized the law to be that actions under section 6344 fell within the provisions of Section 4982, Revised Statutes, for she alleges in her amended petition that the fraud complained of was discovered within four years prior to the commencement of this action. This allegation is a copy of the holding of this court, Combs v. Watson, 32 Ohio St., 228.
    Now, there is no better principle that any allegation necessary to a cause of action must be supported by evidence. This the plaintiff in error wholly failed to do, as no evidence was introduced of the discovery of anything whatever but the fact that the deeds had been made, and then counsel relied entirely upon the principle laid down in Loudenback v. Foster, 39 Ohio St., 203.
    
      The doctrine there laid down and in Jamison v. McNally, 21 Ohio St., 304, has no application whatever to the issues made by the finding of facts in this case. The holding in those cases was that constructive, or legal, fraud fell under the provisions of section 6344, as well as a case of actual fraud, but they nowhere say that a case of constructive, or legal, fraud will suspend the running of the statute of limitations until its discovery like a case of actual fraud.
    The question of the bar of the statute as applied to a case of actual, or constructive, fraud, is interesting but not difficult of solution in the light of our statute and adjudicated cases. The bar of a right of action under section 6344 falls under section 4982. “An action for relief on the ground of fraud, hut the cause of action in such case shall not he deemed to have accrued until the discovery of the fraud.”
    
    If plaintiff in error can have any standing whatever it must be by virtue of the saving clause of said section 4982, as that section would bar any cause of action founded in fraud in four years from its commission, except for the saving clause.
    The legislature in enacting that part of section 4982, relating to fraud, followed in substance the old English statutes on that subject. In the day when these statutes originated constructive fraud was unknown, as it is comparatively a modern term. It never was intended to mean more than it says in the plain language used. If it includes this case, and cases contended for by counsel for plaintiff in error, then there is absolutely no limit within which a person could safely accept under a voluntary conveyance, for if constructive fraud falls within the saving clause of section 4982, then the only limit for bringing tbe action is four years after tbe discovery of the simple fact that a deed has been made.
    
    We are not without light on this subject in Ohio, for we claim all the questions involved in this finding of facts have been squarely settled by this court. Combs v. Watson, 32 Ohio St., 228; Maas v. Miller et al., 58 Ohio St., 483.
    We might safety rest our case upon these Ohio decisions, but we' desire to go further and show the court that with one or two exceptions the higher courts of this country have held the same way. Counsel for plaintiff in error state that the circuit court were guided largely in arriving at their conclusion in this case by the decision in Farnum v. Brooks, 9 Pick., 212. Counsel are in error in this respect. While the circuit court considered that case of great value in determining the questions involved, they based their holding first, on Combs v. Watson, 32 Ohio St., 228, and Maas v. Miller et al., 58 Ohio St., 483, and secondly, on the fact that there is an unbroken line of decisions on’’this question whenever the identical question has been before a court. We now refer to the cases of Farnum v. Brooks, 9 Pick., 213; Austin v. Raiford, 68 Ga., 201; Printup v. Alexander, 69 Ga., 553; Township v. French, 40 Ia., 601; Downs v. Harris, 75 Ga., 834.
    One of the most significant decisions in this state on the question of what is necessary to suspend the running of the statute of limitations, is found in the case of the State v. The Standard Oil Co., 49 Ohio St., 188.
    That constructive fraud will not suspend the running of the statute of limitations, as a general proposition, we desire to cite further the following authorities: Wilmerding v. Russ, 33 Conn., 67; Geb
      
      hart v. Sautter, 30 Ia., 152; Bishop v. Knowles, 53 Ia., 268; Laird v. Kilbourne, 70 Ia., 83; Hawley v. Paige, 77 Ia., 239; Francis v. Wallace, 77 Ia., 373; Michel v. Walraven, 92 Ia., 423; Clark v. Van Loon, 108 Ia., 250.
    In Iowa, as in Ohio, the statute provides that the. action shall be brought within five years “after the cause of action accrues,” and that it shall not be deemed to have accrued “until discovery of the fraud by the party aggrieved.” And it will be noted also that these cases make the filing of the deed notice to the world of any constructive fraud, and the limitation begins to run from such filing. See also Perry v. Wade, 31 Kan., 428; Boyd v. Boyd, 27 Ind., 429; Wynne v. Cornelison, 52 Ind., 312; Phillips v. Shipp, 81 Ky., 436; Hughes v. Littrell, 75 Mo., 573; Oterson’s Appeal, 7 Pa. Dist. Rep., 379; Vodrie v. Tynan, 57 S. W. Rep., 680; Wait on Fraud. Con., Sec. 292. Per contra are cited the following cases: Boyd v. Blankman, 29 Cal., 19; Humphrey v. Carpenter, 39 Minn., 115; Fox v. Zimmerman, 77 Wis., 414.
    The court of appeals of Kentucky does hold that the recording of a deed is not constructive notice to antecedent creditors. Ward v. Thomas, 81 Ky., 452; Cavanaugh v. Britt, 90 Ky., 273; Brown v. Connell, 85 Ky., 403.
    But if counsel rely upon that court for the law applicable to the limitations of actions for relief on the ground of fraud, their petition in this case is insufficient, and no decree can be rendered in plaintiff’s favor, for that court holds that the petition must aver not only that the fraud was not discovered, but that it could not have been discovered by the exercise of reasonable diligence. Brown v. Brown, 91 Ky., 639; Cavanaugh v. Britt, 90 Ky., 273.
    
      From these references it will be seen that the supreme courts of Connecticut, Massachusetts, Iowa, Georgia, Missouri, Kansas and Indiana have all held that where a conveyance is constructively fraudulent only, the statute of limitations begins to run as against creditors of grantor either from the date of the deed, its filing for record, or its record. While California, Missouri, and possibly Wisconsin, hold that the time begins to run from actual notice of the existence of the deed.
    
      Now, where stands Ohio? This question is settled by the case of Maas v. Miller, 58 Ohio St., 483.
    In the case of constructive fraud when does the four years begin to run? Some of the cases make the date of the deed the starting point, others the filing for record, and others the actual recording. The weight of authority favors the filing as the time from which to count. This is distinctly held in the Iowa cases, and our Supreme Court, in .the case of King v. Kenny, 4 Ohio, 82. This is quoted with approval in Ratcliff v. Teters, 27 Ohio St., 81. Other cases would make the actual recording the date from which the statute runs. It seems unreasonable to hold the parties responsible for the delay of the recorder, and for all purposes the filing is just as available for notice as the recording. Both on principle and authority the statute runs from the filing. But it is immaterial which rule is adopted in this case. The deeds were executed on March 18, filed on March 28, and recorded March 31, 1896, and this case was not commenced until March 31, 1900. If we start counting from the date, the action was brought four years and fourteen days after the cause of action accrued ; if from the filing, it was delayed four years and four days, and if from the recording four years and 
      one day. The statute does not say four years from the day on which a cause of action accrues so that that day would be excluded, but four years from the accruing- of the cause of action. The day on which it accrues must be included for an action may be brought on that day. And giving the widest possible latitude to construction the cause of action in this case “accrued” March 31, 1896, and perished at midnight, March 30, 1900.
    One day over time is as effective as one year. The statute of limitations is no longer received with disfavor but with favor by the courts.
    We claim the law to be that, if there is anything on the face of a record that would be sufficient to put a creditor upon inquiry, he is chargeable with notice of all that reasonable inquiry would have disclosed. These deeds stated on their face: “In consideration of natural love and affection and $1,200 (one $1,300).” This was the exact truth, for a payment can be made by note as well as cash. This was notice to any person chargeable with notice that nearly the whole of the consideration in these deeds wás a gift. 14 Amer. & Eng. Enc. Law (2 ed.), 355; Thomas v. Kennedy, 24 Ia., 397; Duhme, Admr., v. Mehner et al., 5 Dec., 107; 3 N. P., 266.
   Shauck, J.

The record does not suggest that the circuit court was unmindful of the doctrine of Jamison v. McNally et al., 21 Ohio St., 295, since its conclusion of law concedes that under our statute a deed may, at the suit of a creditor of the grantor, be set aside for constructive as well as for actual fraud, and that these deeds were constructively fraudulent. Upon that point the briefs of counsel are in accord.

The proposition by which the judgment of the circuit court must be tested is stated by it in its conclusion of law: “That the plaintiff’s cause of action is barred by the statute of limitations.” The pertinent provision of the statute is in section 4982 which defines the actions which may be brought within four years, that lastly stated being “an action for relief on the ground of fraud, but the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.” Of the facts found the following are brought into prominence by the opposite views of counsel; the deeds were filed for record with the recorder of the county in which the lands are situated more than four years before the bringing of the action; the deeds were only constructively fraudulent; 'until within four years from the bringing of her action the plaintiff did not have actual notice of the execution of the deeds, nor did she prior to that time actually discover any of the facts which made the deeds fraudulent. The fraudulent deeds having been ^executed more than four years before the beginning of the action, the precise question is whether it is within the provision that “the eáuse of action in such case shall not be deemed to have accrued until the discovery of the fraud.” We are not favored with the opinion of the circuit court, but counsel urge that it properly concluded that the case is not within the saving clause of the statute because the deeds were only constructively fraudulent, and because they were filed for record more than four years before the action was brought. The numerous cases cited in support of this view-will be found in the Reporter’s abstract of the briefs. It is not necessary to analyze them separately. Most of them obviously depend upon provisions not found in our statute, or upon facts not found in the present case. A statute providing that in an action for relief on the ground of fraud the cause of action shall not he deemed to have accrued until the discovery of the fraud distinguishes itself from one which suspends the bar of the statute because of the fraudulent concealment of the cause of action; and this case involves no consideration arising out of the relation of trustee and beneficiary. When not influenced by peculiar provisions of recording acts the view generally taken is that the registration of a deed does not operate retrospectively so as to affect the holders of antecedent rights. Pomeroy Equity Jurisprudence, Secs. 656-8. This view has been consistently maintained in this state. Leiby v. Wolf, 10 Ohio, 83, and cases following it. Sharp v. Myers, 1 Circ. Dec., 374; 2 C. C. R., 82, approved by this court in affirming the judgment. If we felt at liberty to depart from this doctrine and to assume that the recording act affords a refuge to a fraudulent grantor or his fraudulent grantee another difficulty would be encountered. Assuming that the plaintiff was charged with knowledge of these deeds when they were left for record and of the fact that they were by way of gift, knowledge of essential elements of fraud would still be wanting. Such a deed by one who retains property fully sufficient to discharge his debts is not a fraud upon his creditors. Since the action could not be maintained but for the facts found respecting the financial condition of the grantor at the time of making the deeds, and since the record did not disclose those facts, it cannot be said that the fraud was discovered until the plantiff, from a different source, received notice of such facts. A deed fraudulent as to creditors may recite the payment of a full and valuable consideration by the grantee, and an examination of the record would not disclose to a creditor of the grantor that a cause of action has accrued in his favor. It would inform him that the land conveyed cannot be subjected to the payment of his claim because a valid title thereto has become vested in a purchaser for value. In such case it cannot be said that the fraud has been discovered until the creditor has notice of the falsity of the recitation as to the consideration. It seems, therefore, that the judgment of the circuit court is not justified by the fact that the deeds were filed for record more than four years before the action was brought. The opposite conclusion involves an erroneous view of the statute relating to the recording of deeds, as well as of that by which actions of this character are limited.

Nor is the conclusion of the circuit court justified by its finding that these deeds were only constructively fraudulent. Usually, and in these cases always, the consequences of fraud are not determined by its character. In order that an act be constructively fraudulent it is essential that it would, either in the particular case or in common experience, lead to consequences equivalent to those following actual fraud. By the act of the debtor these lands had been placed beyond the reach of an execution at law. The creditor’s resort to equity being thus made necessary, neither the principles nor the statutory provisions involved suggest that his rights may be affected by considering whether the act of the debtor proceeded from evil design or from an innocent mistake respecting his financial condition when the deed of gift was made. The language of the limiting section of the statute and of the saving clause obviously comprehends constructive as well as actual fraud. It being admitted that constructive fraud is included in the provisions of the statute by which the right of action is defined and in that by which it is limited, an exception should not by interpretation be imported into that by which it is saved. The controlling fact found by the circuit court is that the action was brought within four years after the actual discovery of the fraud. It is gratifying to believe that long and. uniform practice has prepared the bar of the state for these conclusions.

Judgment reversed and judgment for plaintiff.

Burket, O. J., Spear, Davis, Price and Crew, JJ., concur.  