
    Titus G. Farr, and others, v. Wm. B. Farr, Executor.
    This Court views contracts between trustees and their cestui que trusts in relation to the trust property with great suspicion. [*390] ’
    A party coming into Equity for relief against a fraudulent deed, must come within four years after the fraud w#s discovered 
       [*391]
    And the same lapse of time (four years) will bar relief against fraud in a deed for land, as well as for personalty. [*392]
    Heard before Chancellor JohnstoN, at Union, June, 1883. The bill states that Col. Wm. Farr, late of Union District, deceased, by his last will and testament executed in 1T94, charged his estate with the support of his wife during her life or widowhood, and also with the maintenance and education of his children, and after the death or marriage of his wife, he directed his real and personal estate to be divided amongst his children, and appointed his son, the defendant Wm. B. Farr, and others, his executors. The defendant qualified, became principal acting executor, took possession of the estate and made some sales thereof, and worked the plantation and slaves for many years, taking the entire control and management of the estate, and acting as the guardian of his brothers, the plaintiff Titus Gf. Farr, and James Farr, who were then minors and lived with him. That during this time the defendant frequently represented the estate as insolvent, and that the property in his possession was his own; which representations are alleged to be false, and made to deceive and defraud the parties interested. That the devisees being indigent and necessitous and desirous of enjoying their share of the estate, in order to effect this, on the coming of age of the youngest child, procured the consent of their mother to release her interest, for an adequate provision in her behalf for life ; and proposed that partition should then be made according to the will. That the defendant objected and positively refused to enter into any arrangement, unless they would allow him a certain quantity of land, and certain neSroes> horses *and stock, amounting in value to about $30,000 beyond the share he was entitled to under the will, to remunerate him, as he said, for his trouble and expense in managing the estate, raising and educating the children, aud for advances made for the benefit of the estate. That having confidence in his representations and wishing to avoid any litigation, the other devisees consented, and accordingly a deed of partition and settlement was executed on 14th March, 1819, which allowed to the defendant the land and' negroes and stock as agreed on, and to the other devisees their shares, which afterwards went into their possession and have been held by them ever since. This deed the bill charges to have been obtained by fraud, and prays that it may be set aside and the defendant held to account. It also alleges that the plaintiff, Titus Gr. Farr, was kept in ignorance of the true situation of the estate and of his rights therein, and that the deed was not valid, until within four years before the filing of this bill. James Farr died on 22d May, 1823, leaving children who are plaintiffs in this bill, and most of them still under the age of twenty-one; and Titus G. Farr has administered on his estate. The bill was filed in 183 — , after the period of the statute of limitations had run out from 1819.
    The defendant in his answer avers, that the parties were fully conversant of their rights, and voluntarily executed the deed of 1819 as a final settlement and partition of the estate; and that under the circumstances it was just and equitable — the property retained by himself being no more than he was justly entitled to ; and he set up this deed in bar to an account, and pleaded the statute of limitations.
    The Chancellor dismissed the bill and the plaintiffs appealed on the following grounds :
    1. That the Court should have declared the deed of partition and settlement fraudulent and void, under the circumstances attending its execution.
    2. That lapse of time or the statute of limitations should not bar the relief sought, inasmuch as the plaintiffs were ignorant of their rights and of the defendant’s fraud, until within four years before the bill was filed.
    3. That the minority of the heirs of James Farr who are *parties to the bill as plaintiffs will prevent the bar of the statute of limitations or lapse of time, as to the rights of the other plaintiffs in the real estate — or at all events, will save their own rights
    
      Herndon, for the appellants,
    argued that the deed of partition and settlement should be declared void and set aside, on the grounds, that the defendant had kept the parties in ignorance of the true situation of the estate — had availed himself of their necessities and exacted from them one half of the corpus of the estate besides the profits, for doing that which he was bound to do. That by his false representations, that he was the rightful owner of the property in his possession, and that the estate was insolvent, they were induced to avoid litigation, to consent to his terms — that this might be regarded as a purchase from expectant heirs, which was always regarded with jealously and set aside especially when, as in this case, there was gross inadequacy of price. And that a deed thus obtained should be set aside, as well on the grounds of public policy as for the fraudulent and unconscientious means employed to obtain it. Butler v. Haskell, 4 Eq. Hep. 687 ; 1 Maddoek, 96 ; 1 M’C. 383 ; 1 Mad. 112; 2 Yes. Sen. 547 ; 9 Yes. 292.-- As to the statute of limitations or lapse of time, he insisted that time could only be a bar from a discovery of the fraud, and a knowledge by the plaintiffs of their rights. That where the ground of relief is, that the party seeking it was ignorant of his rights, all that is required, is for him to charge the fact, and the defendant must show that he was not. James Farr’s heirs-at-law being infants, will save the rights of all the plaintiffs, Lahiffe v. Smart, 1 Bailey, 192. By analogy to the statute of limitations, if time is to be a bar in this case, five years will be the time to run, in order to bar the plaintiff’s right to the real estate; that being the period of the statute at that time ; James Farr died before five years had elapsed from 1819, — and the minority of his children, if it will not save the rights of the other plaintiffs, will at least protect their own. Starke v. Starke, Law Journal.
    
      Thomson, contra,
    contended that the deed of 1819 was executed by Par^es under a perfect knowledge of *their rights. There was no evidence that they were ignorant of them, nor any circumstance to warrant that conclusion. General allegations of fraud will not do ; it must be specially set out, 2 Saund. PI. & Ev. 116, 643 ; Barn. & Ores. 641; 1 Chitty, 339 ; and the plaintiffs have failed, either to specify the fraud in the bill, or to sustain it by evidence. As to lapse of time, he contended that four years was sufficient to bar the relief sought, which was not a recovery of the land, but to set aside a deed as fraudulent; and four years had elapsed in the lifetime of James Farr after the deed had been executed; and he referred to 14 John. 401; 1 Pothier, 36; Newl. 452; and the Louisiana Code.
    
      Herndon, in reply,
    cited Mad. Rep. 133; 1 M’C. Ch. 389; Mad. Ch. 389.
    
      
       See Eigleberger v. Kibler, ante, 121; Prescott v. Hubbell, ante, 210; Riddlehoover v. Kinard, ante, 376. R.
    
   Harper, J.

The point for consideration is the settlement by the deed of the 14th March, 1819. If the application had been made recently after its execution, I should greatly doubt whether that settlement could be allowed to stand. By it, he apparently secures a very considerable advantage. The relative situation of the parties is to be considered. He was the executor in possession of the estate, and had stood in the relation of actual guardian to the parties. They were just then, by the consent of their mother, entitled to claim a distribution of the estate, and naturally anxious to get into possession. The defendant stood in a position of advantage in treating with them. The property allotted to defendant over and above his equal distributive share, is said to be in consideration of his services in saving and preserving the estate. This must be regarded as a gratuity, and such gratuities, under such circumstances, the Court always looks upon with the greatest suspicion. In such case, as is said in Hylton v. Hylton, 2 Ves. Sen. 547, the party is supposed to say, ‘I will not deliver up the estate, unless you grant me this.’ Defendant had plausible grounds for involving them in a protracted litigation; and indeed he himself states in his answer that he would not have consented to what he terms a premature division, unless he had apparently gained some *advantage. It is true that the settlement was proposed to the defendant by the other parties. But then it is to be recollected that he had previously attempted to alarm their fears by telling them that the property was his; that their father’s estate was insolvent, and referring them to the Ordinary’s office for proof of that fact. I do not mean that he deceived them. I believe they well knew, or had good reason to believe, that he could not hold the property as his, and that they were entitled to distribution. But they might justly be alarmed at the prospect of being held out of possession for a long time. He operated not upon their ignorance, but upon their will. But it is unnecessary to investigate minutely this part of the cause, as I am satisfied complainants are barred of their claim to relief by the lapse of time, in analogy to the statute of limitations.

The complainants come to be relieved against a fraud. They come to set aside a deed which is a bar to an account to which they would be otherwise entitled. I am not aware that there is any doubt about the rule that a party coming to be relieved against a fraud, must come within four years (in England six years) from the time the fraud is discovered. In Wymondsell v. The East India Company, 3 Pr. Wms. 143, it is ruled, that the bill must allege that the fraud was discovered within six years before exhibiting it. And the fact must correspond with the allegation. “ If the fraud was known and discovered six years before exhibiting the bill, this, though a fraud, would be barred by the statute of limitations. The subject is fully considered by Lord Redesdale in Hoveden v. Annesley, 2 Sch. & Lef. 607. The bar of six years is adopted in analogy to the legal bar to an action of account. In the case of Starke v. Starke, Law Jour. 503, decided by this Court, it was held that while a trust continues, the statute cannot affect it; “but if the trustee does an act which he intends, and which is understood by his cestui que trust, to be a discharge of his trust, then the statute will from that time commence to run.” To the same effect was the case of Moore v. Porcher, decided in Charleston ; with the explanation that if there be fraud in the act by which the trust purports* to be finally executed, the statute will not begin to run till the fraud is discovered.

But what fraud was there in this transaction, which the complainants have discovered since the settlement ? I cannot discover a vestige of any. If there was any fraud, it was not, as I have before said, in imposing on their ignorance, but in alarming their fears and taking advantage of their situation and natural impatience to have possession of their property. They certainly knew of the purchase by Richard Farr, at the executor’s sale, and seemed to be satisfied that the defendant could not claim under that. They knew of what property the estate consisted, and bow it had been managed. They knew that the defendant had not kept, or at all events, had not returned any accounts. They knew that if he purchased property with the proceeds of the estate, a trust resulted for those entitled to the estate. They had able legal advice. I cannot lay my finger on the, minutest fact which they know now, that they did riot know then; and as said by the defendant’s counsel, I am satisfied that they were at least as well informed of their rights then, as they are now. If they were alarmed into offering such terms as the defendant was willing to accept, they had four years after being put in possession of part of their property, to institute further proceedings. Having neglected to do so, it is time there should be an end to litigation.

It was argued that the statute could not apply to the heirs of James Earr, who have been minors, so far as respects the land; and that their minority will save the rights of the rest. Eive years was at that time required to bar the right to land. There is nothing in this. This is not a suit to recover land — though the recovery of land might be an incidental consequence of it. It is to be relieved against a fraud. It is to set aside a deed; which deed, while of force, is a bar to the account which they claim. The defendant does not claim the land under the statute, but under the deed. If the deed were out of the way, the defendant, I suppose, could not hold the land by'the statute. James Earr lived four years after the execution of *the deed. It is that deed which is sought to be relieved against, and from the execution of that, the statute began to run.

The motion is dismissed and the decree affirmed.

Johnson and O’Neall, Js., concurred. 
      
      
         Not reported.
     