
    Haywood vs. Marsh and Ross.
    A petition for a rehearing mast, according to the chancery rules, be filed at the same term in which the decree is pronounced.
    Where the fraud alleged, was not discovered or known until within a few months before the bill was filed, it prevents the statute of limitations from barring the claim in equity.'
    A sold land to B, and it was agreed it should be valued by four men, two to be chosen by each; one of the valuers selected by B was a secret partner of B in the purchase, which fact was unknown to A: held, that this was a fraud upon A, which a court of equity would relieve.
    The bill in this case alleges, that in the year 1823, defendant Ross commenced a negotiation with the complainant for the purchase of a tract of land containing about six hundred acres, lying in the county of Bedford; that complainant being ignorant of the value of the land, agreed with Ross to select four disinterested and impartial men who lived near the land, to fix and ascertain its value, which when ascertained complainant agreed to receive from said Ross as the consideration for the land; that complainant selected two, and defendant Ross two citizens of said county, to value the land; that Ross chose defendant Marsh as one of the valuers; that said Marsh appeared to be very anxious to put as low a price upon the land as possible; that he said and did every thing calculated to depreciate the land, in which he was joined by the other individual chosen by Ross, and that finally they persuaded one of the individuals chosen by the complainant to agree in valuing the land at $450, which was accordingly done.
    'The bill further alleges, that although complainant knew and believed the land to be much undervalued, yet he attributed it to want of judgment in the valuers, and that having no suspicion of fraud, and believing from his contract he was bound to convey at the assessed value, he did so convey to said Ross.
    
      The bill further charges, that the land was worth a great deal more than the $450; that the defendant Ross in a very short period after the sale to him by complainant, sold it for $1200. The bill further states, that the said defendants Ross and Marsh, at the time of said sale, were in fact partners in the purchase; that it was agreed between them that Ross should buy the land and negotiate the terms of the purchase; that it was fraudulently agreed between them that Ross was to purchase the land and have it valued by individuals, and that Ross was to choose Marsh as one; that Ross concealed from the complainant the fact that Marsh was a party in interest, and a co-purchaser with him, and that he was so at the time he valued the land. The bill also charges, as evidence of the fraud and secret agreement between the partners, a paper executed the day after the sale by said Ross and Marsh, a copy of which paper is exhibited, and is as follows: “Articles of agreement between Thomas Ross and Simeon Marsh is such: it is understood that said Ross and Marsh have purchased a tract of land of George W. Haywood in partnership, and the title of said land has been made by said Haywood to said Ross, and he has given his notes to said Haywood for $450 for the same; it is understood that said Ross agrees and binds himself by these presents to make a good lawful warranty title to half the land, taking the value into consideration; we both also agree to go equal in all cases, both in losses and gains; and said Marsh is to pay for half the land, that is $225. Given under our hands and seals, this 22d January, 1823.
    THOMAS ROSS, (seal.)
    SIMEON MARSH, (seal.”)
    The bill also charges, that these facts were concealed from the complainant, and he never discovered or knew that Marsh was a secret partner until within about three months before filing the bill. The bill was filed on the 5th of July, 1830. It prays for a decree against the defendants, for the difference between $450 and the actual value of the land at the time of the sale, and for a rescis-ión of the contract.
    The defendants demurred to the bill, which upon argument was overruled by the court, and the defendants ordered to answer.
    The answers of Ross and Marsh, in substance, admit the purchase of the land from the complainant at the time specified, and for the sum of $450; state the complainant had frequently offered the land for sale, and had agreed to sell it according to appraisement; admit the land was to be valued by four indifferent citizens, of whom defendant Marsh was one, aiiEhhat Marsh was chosen by defendant Ross. Deny that Marsh was a partner in the purchase at the time it was made. State that defendant Ross some days after the sale proposed to defendant Marsh to let him have one half the land, which Marsh, after some hesitation, agreed to; that they then drew up the memorandum or agreement, a true copy of which is set forth in the bill. Deny that they sold the land for $1200, but admit they sold it for'about $800; deny there was any secret understanding or agreement between them, and deny all fraud.
    At the March term, 1832, the cause was heard; the Chancellor rescinded the contract, and revested in the complainant such part of the land as had not been sold. He also decreed that the defendants should pay the difference between what they actually gave for the land and its actual value; to ascertain which he directed an account. At September term, 1832, before the clerk and master made his report, the defendants applied to the court for leave to file a petition for a rehearing, which after argument was refused. To this exception was taken.
    The clerk and master reported the difference in value, with the interest on it, of the land sold by defendants to purchasers, to be $670; for which a final decree was entered against the defendants.
    The evidence in the cause is voluminous, and is principally of a circumstantial character; it is unnecessary to set it out, as the court were clearly oi opinion that, talsen Jn connection with the agreement of Ross and Marsh, in which they recite they had purchased jointly, it was abundantly sufficient to prove the allegations in the bill.
    
      C. Ready, for the’complainant.
    1. The Chancellor correctly refused to let the petition to rehear be filed. Although this court decided in the case of Craig and Ed-miston vs. Buchannon, (1 Yerg. Rep. 141) “that a petition to rehear might be filed at any time before a final decree;yet since that decision, the rules established by the Chancellors (and which they were authorised to make by act of assembly) require the petition to rehear to be filed at the same term in which the interlocutory decree is pronounced. See- SSth Rule.
    
      2. The evidence in the cause, particularly the agreement of Marsh and Ross, reciting their joint purchase, is conclusive evidence of the secret agreement of the defendants to defraud the complainant. This evidence, in connection'with the great inadequacy of the valuation, together with the proof of other circumstances, fix conclusively upon the defendants the fraud charged in the bill. If the facts stated are true, it is such a case as a court of equity will relieve against. 1 Mad. Ch, 256, 262; 1 Sch. and Lef. 209. Fraud, though not presumed, may be inferred from circumstances. 1 Ves. 368.
    
      R. C. Foster and Campbell, for defendants.
    1. The evidence only raises a suspicion of fraud. No fraud, such as a court of equity will deem sufficient to rescind an executed contract, has been proved, especially after such a lapse of time as exists in this case. Where a contract is executed, the evidence to rescind it must be much stronger than if it is merely executory. 4 Hay. Rep. 48.
    Solemn conveyances, as deeds, releases, &c. will not be set aside on slight grounds. 1 P. Wil. 727: 1 Atk. 10: 1 Ves. 19: 2 Atk. 692.
    2. The demurrer to the bill should have been sustained, because if there was any cause of action against the defendants, it was barred by the statute of limitations. This appears on the face of the bill; and it is settled in this State, that where it appears on the face of the bill that the complainant’s claim is barred, a demurrer will lie. Dunlap vs. Gibbs, 4 Verg. Rep. 94.
    «3. Balch, in reply.
    The bill charges, that the fraud was not discovered until within two or three months before it was filed. This in equity prevents the statute from operating. 2 P. Wil. 144: 2 Sch. and Lef. 634: Angel on Lim. 34S.
   Peck, J.

delivered the opinion of the court.

The first question presented is on the petition to rehear the cause in the chancery court. This depends upon the rules of the court, and the construction put upon them by the Chancellors; and as both the letter and construction, are against the rehearing on a motion made at a subsequent term, this is held to be no sufficient ground for controverting the decree.

The second point to be considered is that which arises upon the demurrer to the bill. It is insisted that enough appears upon the face of the bill to show that the act of limitations has barred the right of complainant. The grounds laid in the bill for the delay in bringing it, obviates this objection to the relief claimed by complainant. The concealment of the fact that Marsh was a secret partner in the bargain, and that he was covertly valuing for himself, and that this fact was not discovered until within a. few months before filing the bill, makes a different case from those where from the running of the act of limitations, the demurrer is allowable. The charge in this bill, that’the fraud was undiscovered until within the period prescribed by the act, is such as has been held to save the right to sue, and obviate the bar m a court oí chau-eery.

3. The merits of the cause depend upon the evidence. Several of the witnesses prove such facts as go to show that there subsisted a secret understanding between Ross and Marsh, at the time of the purchase from Haywood: and that the value of the land was depressed by the agency of Marsh at the time of valuation, is clearly evinced. If we were to take these together, simply as circumstances, they of themselves would go far to establish the right of the complainant to his decree. But the evidence which Ross and Marsh have jointly produced in the second agreement, reciting as it does, that they in partnership, had bought the land from Haywood, is conclusive upon them. They must be held to their recital; it is not only unexplained, but it would be of evil tendency to permit the explanation, if it were in the power of Ross and Marsh to do it, which is not pretended. Again, the price for which the land has been sold, is so at variance with the valuation, that as a circumstance, it cannot be overlooked.

The whole, taken together, makes a case of gross fraud.

Decree affirmed.  