
    ALEXANDER N. FULLERTON, Appellee, vs. CHARLES A. SPRING ET AL., Appellants.
    APPEAL IN EQUITY TO THE MILWAUKEE CIRCUIT COURT.
    Tho statute of the Territory provided, among other tilings, that “bills for rolioi, in ease of the existence of a trust, not cognizable by the courts of tho common law, and in all other cases not herein provided for, shall be filed within ten years after the cause thereof shall accrue, and not after.1' 13y tho Revised Statutes of the State, which went into operation the 2d day of January, A. D. 1850, this provision was re-enacted in the same words, and tho territorial-statute repealed: the enacting- and tiie repealing- statute taking-effect at the same time: Ifeht, that the provision was continued in force without interruption.
    The vendor of real estate has an equitable lien, against the vendee and ail others having notice, upon the premises sold, for the purchase money; but this lien may be barred ’by tho statute of limitations.
    The time limited by tho statute, within which a bill may be filed to enforce an equitable lion upon real estate for the purchase money, is ten years from the timo when the cause for filing such bill accrued.
    The appellee filed his bill in the Circuit Court of Milwaukee county, July 28, 1851, against William L. Pickering, Charles A. Spring and George Mixter, defendants, setting forth in substance, that on June 2o, 1836, he, the said Fullerton, being the owner of an undivided moiety of the southwest quarter of section seventeen, of town number seven, north of range number twenty-two east, in Milwaukee county, Wisconsin, sold the same to said defendants, in consideration of certain sums of money then promised to be paid to him therefor; that the legal title was, at the request of said defendants, given to said Pickering alone; and that the purchase money therefor was secured ¡to the complainant by bills _of exchange, three in number, for ,800 each, drawn by Spring upon Pickering in New York, dated at Chicago, June 25, 1836, at nine, twelve and eighteen months; that said bills of exchange were, upon presentation, duly accepted by said Pickering,, payable at the Fulton Bank; that demand of payment was duly made thereon at the said bank at the maturity of the said drafts respectively, but that no one of said drafts, nor any part thereof,- was then or at any time after-wards paid, and that the whole remains unpaid ; that, at some time- afterwards, though when complainant does not know, Pickering conveyed to Spring one-half of the lands so conveyed to him ; that neither Spring nor Pickering had ever been in possession of said premises, but that Fullerton had had possession about four years immediately preceding the commencement of this suit, and remains in possession of all but twenty acres sold to one Norton, and has paid taxes and had the charge thereof since 1844; that said premises have been divided among the tenants in common by order of the Circuit Court, and that the west half of the east half of the west half of said quarter section was set out in such partition to Spring in severalty ; that the share of Pickering, to wit: the west half of the west half of said quarter section, was assigned to one Samuel A. Mott; that said Mott held the legal ti£le of said forty acres of Pickering, by virtue of a deed of trust executed in 1840, conveying said forty acres, with other lands, to Mott, in trust for said Pickering, but that the trust had been abandoned, as said Fullerton had been informed and believed; that nevertheless that forty acres had been set off in partition to Mott, though the complainant avers that Mott had no interest in said premises, and that-Mott had conveyed his entire interest (being the legal title only) to said Pickering, by deed executed in March, 1851, and that complainant was not made a party to said partition suit, though he was in possession of the premises ; that Spring was declared a bankrupt in 1842, by the United States Circuit Court for the district 'of Illinois, and that said defendant Mixter claims the interest of Spring, through a deed from an assignee in bankruptcy, whose name the complainant does not know. Complainant clai ms to hold an equitable lien upon the said premises now, in the names of Pickering and Mixter, for the whole of said purchase money and interest. Complainant also claims to hold said premises by regular conveyance to him of the rights o'f the grantees named in certain tax deeds, regular on their face, given pursuant to tax sales made before complainant took possession as aforesaid.
    The bill prays for an account of the amount due and unpaid of said purchase money, and for a sale of said premises so set off to Mott and Spring,' under a decree of' court, for the purpose of paying that amount, with the cost of this suit, and for the usual decree of foreclosure, and for other and further equitable relief; also the usual prayer of subpoena.
    Afterwards the bill of complaint was amended by the insertion of the name of Thomas C. Dodd as defendant, and of an allegation in substance, that Pickering went into bankruptcy in 1843, and his assigns sold his interest in said premises at vendue to said Dodd, but did not give a deed to him, and that said Dodd acted for and in collusion with the said Pickering, and did not obtain any title free from the lien of the complainant. Also, by the insertion of an inter-i‘°gat°ry as to whether the said Dodd, in making said purchase, acted as agent of said Pickering; whether he paid any money to the assignee, and how much, anj w]ietper pe ever received a deed.
    Defendants Spring and Mixter demur to the bill, and give substantially the following reasons, among others :
    Because a period of more than ten years had elapsed since the time when the right, if ever, accrued to the complainant to commence suit, and before the filing of said bill, and therefore the suit is barred by the statute of limitation (so called) of this State.
    Because the claim attempted to be set up by the bill is of such an ancient and stale character that the Court of Chancery will not aid to enforce it.
    Because the allegation that the complainant is the holder of the rights of the grantees in certain tax deeds furnishes no. grounds for this' suit; such tax-title holdér has a perfect remedy at law, if he has anything.
    Because the bill does not show that all or any of the steps precedent to the giving of such tax deeds were regular, so as to give any validity to such tax title.
    At a special term the cause came on to be heard and argued on the bill and demurrer thereto, and the same being argued and submitted, it was ordered by the court that the demurrer be overruled, without costs ; from which decision an' appeal is brought to this court.
    
      Waldo '<& (My, for the appellants.
    
      .Brown cfc Ogden, for the appellee.
   By the Court,

Smith, J.

However strong the equity presented in behalf of the complainant, by his bill filed in this case, we can perceive no way of avoiding the statute of limitations. A.dmitting that the lien of the complainant for the purchase money remained, a cause of action accrued to enforce it on failure to pay the bills of exchange. The last bill became due December 28th, 1837. The statute of limitations enacted by the territorial legislature went into operation the 4th day of July, 1839. The provision of that statute particularly applicable to cases of this kind, is section 40, page 263, of the Territorial Revised Statutes, and is in the following words:

“¡Bills for relief, in case of the existence of a trust, not cognizable by the courts of common law, and m dll other cases not herein provided for, shall be filed within ten years after the cause thereof shall accrue, and not after.”

By the Revised Statutes of the State, which went into operation the 2d day of January, 1850, the foregoing section was re-enacted in the same words, and the territorial statute repealed. See R. S., chap. 127, § 27.

In our judgment, it is clear that the effect of this repeal and re-enactment was to continue the uninterrupted operation of the statute. Such is believed to' be the,proper rule .of construction in cases where the repealing -act re-enacts a provision of the old statute in the same words. There is no change in the law, and* the re-enactment of the new, is simultaneous with the repeal of the old provision, and both are the same. It was said on the argument, that there was an instant of time between the taking effect of new statute, and the expiration of the old. But it is difficult to perceive by what process such instant of time could be estimated. The new statute took egpecg ag same instant with the repealing statute? When the legislature re-enacted the same provision. • and provided for ■ its taking effect at the same time ‘ as the repeal of the old statute, it is clear that they intended to continue such provision in force without interruption.

The bill in this case was filed the 28th day of July, 1851. More than ten years had elapsed from the time when the cause of complaint accrued, before the filing of the bill, and more than ten years from the enactment of the statutes of the Territory, which took effect July 4, 1839.

Nor is the case relieved by the allegation of title through tax deeds, and possession. The bill is not filed with a view to remove a cloud upon the title thus alleged to have been acquired, nor do we see how it can be sustained with that view. If the complainant has thus acquired a good and valid title, he has an adequate remedy at law, or he may frame his bill for the purpose of quieting his title.

It may seem hard that a loss shall be sustained, or apparent injustice done, on áccount merely of the lapse of time, without any change in the equitable relations of the parties. But the statute is imperative, and we have no discretion jbjjh .to carry it into ■effect. We are unable to perceive any mode of relieving the plaintiff of its operation.

This view of the case renders it unnecessary to consider the other points raised by the demurrer-The order of the Circuit Court must be reversed.

Order reversed, with costs.

Note. — Since tlie foregoing opinion was written, my attention has been called to tlie case of Wright vs. Oakley et al., 5 Met. Rep. 404, where the same subject is discussed by Chief Justice Shaw, who delivered the opinion of the court, and which is authority for the positions here assumed.

Smith, J.  