
    Caroline C. Piper, App’lt, v. John L. Hoard, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 11, 1887.)
    
    1. Fraud—Action to set aside deed on account of—la equity Action-Right OF ACTION ACCRUES ON DISCOVERY OF FRAUD—CODE ClV. Pro., § 382.
    An action to set aside a deed on account of fraud used in procuring its execution, is cognizable solely in equity, and the time limited, in which to bring such an action, begins only when the fraud is discovered.
    8. Same—Statute of limitations—What does not stop the running of.
    When the injured party has ascertained the facts which constitute the fraud, and so has discovered its existence, the statute begins to run irrespective of the degree of intelligence possessed by him, and whether or not he has independence sufficient to resist hostile influences and assert his rights.
    3. Same—Statute of limitations—Running of not stopped by additional fraud.
    An additional imposition on the injured party, by the party who perpetrated the first fraud, does not stop the running of the statute.
    
      4 Same—Statute op limitations—Right op action when barred—Code Civ. Pro., § 382.
    The right to bring an action of such a nature is barred by the lapse of six years from the time of the discovery of the fraud.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming a judgment of the special term.
    
      Arthur Beardsley, for app’lt; E. L. Smith & A. H. Prescott, for resp’t
    
      
       Affirming 35 Hun, 663, mem.
      
    
   Finch, J.

—The facts of this case are only important as they bear upon the inquiry when the cause of action accrued and the statute of limitations began to run. The plaintiff, as sole heir of her father, seeks to set aside a deed made by him to the defendant, and a subsequent settlement which confirmed it, on the ground that both were the product of fraud and undue influence. A jury to whom special issues were submittted decided the fact in favor of the plaintiff, and their conclusion was adopted by the court. We are to assume, therefore, that the deed and the settlement were fraudulent, and might have been avoided by Frederick Piper in his lifetime at any moment after they came into existence. But the action is conceded to have been of a character solely cognizable in equity and founded upon a fraud, and the statute did not begin to run until the discovery of that fraud. The trial judge found as a fact that, for a period of sixteen years before his death, Frederick Piper could have maintained an action for the same substantial relief now sought; and it is involved in that finding and more plainly disclosed in the opinion that during all that time he had a full knowledge of the facts constituting the fraud. While he was somewhat weak minded, he was by no means destitute of mental capacity or understanding, and was able to know and comprehend the facts which transpired. He knew that .he made the deed to Hoard, and the consideration for it. He knew also, for he was expressly told, that the conveyance could be avoided for fraud; and after the whole matter had been explained to him, not only by his wife, but' by the counsel chosen to protect and enforce his rights, he gave his consent to the commencement of an action which alleged that fraud and sought to rectify it. At that date he knew all the facts and their fraudulent and wrongful character.

The only influence then operating upon him was the perfectly proper influence of his wife and his counsel. Mr. Throop testifies that the whole situation was explained to him; that he was made to understand it, although with some difficulty and delay; and that when he did consent, answered intelligently and rationally. This witness was the first one called on behalf of the plaintiff, and was the counsel chosen to redress the existing wrong. The fraud at that moment was complete. It had been discovered, and was fully known to Piper and Ms advisers; so fully that it served to found an action in Ms behalf as complete in its allegations of fraud and undue influence as the one before us. The Statute of Limitations began to ran, and of course continued to ran unless stopped by some statutory provision. Code Civil Pro., § 408. It may be true, and doubtless is true that Piper did not realize as clearly and distinctly as others the force of the facts brought to his knowledge, and the extent and scope of the wrong which had been done him. But he was neither idiot nor lunatic; he had memory, sense and judgment; a mental capacity of low grade, and a lack of independence and will; but yet sufficient ability to understand and comprehend, and that supplemented by the aid and advice of intelligent and competent friends. It is impossible not to see that at this point of time a discovery of the fraud had occurred. I do not understand that the question whether such a discovery has taken place depends upon the mental condition of the party injured, where he has legal capacity to act and to contract, nor upon his freedom from undue influence or ability to resist it. If he has ascertained the facts which constitute the fraud, and so has discovered its existence, the statute begins to run irrespective of the degree of intelligence possessed by the injured party, and whether he has enough of courage and independence to resist a hostile influence and assert his rights or not. In either event there has been discovery of the fraud; the right of action has fully accrued, and the statute begins to run.

Soon after the action of Frederick Piper to cancel the deed had been commenced, the defendant Hoard seems to have regained his influence and control over him. The defendant induced him to discontinue his action, making a new arrangement to which the wife was a party, and assuming a new liability as a consideration for the conveyance. This settlement the jury and the court found was itself fraudulent. It indicates a new exertion of undue influence to nullify and avert the grantor’s effort for redress. That finding leaves the original fraud unpurged, and the right of action it gave undischarged, but I am unable to see how it could stop the running of the statute of limitations. The law provides for no such disability. We cannot add it to the statute. The new wrong might possibly give a new right of action, but could not suspend the existence of the old one. The cases cited in behalf of the plaintiff do not reach the difficulty. Most of them relate merely to the effect of loches" or acquiescence as excused or disarmed by the continued presence of undue influence, and have no relation to the peremptory command of a statute. Sharp v. Leach, 31 Beavan, 491; Gowland v. De Faria, 17 Vesey, 25; Kerr on Fraud, 301. In one the question arose over the adverse possession of .a slave under a statute of the state, and the actual possession was held not to be adverse because of a continued undue influence which prevented consciousness of adverse character attending the possession. Oldham v. Oldham, 5 Jones N. Car. Eq., 89. Here the statute began to run. There was a time when Piper discovered the fraud; when the facts and their character were explained to him; when he was for the moment free from the domination of Hoard and acting in defiance of it, and when he consented to initiate an action to set aside the deed. We cannot justly say that he did not then and there not only discover but realize to some extent the fraud practiced upon him. That set the statute running, and it continued to run, unless we import into it a new disability not among its terms. Code Civ. Pro., § 396. We, therefore, see no answer to the defense of the statute.

It was sufficiently pleaded. The Code provides that the right of action is deemed to have accrued when the fraud is discovered and no sooner (section 382), and the answer pleads that it did not accrue within six years before the commencement of the action. That was enough.

It is claimed in addition, that the complaint contained a cause of action in the plaintiff’s own right and not derived from her father, and which she asserted in due season after the disability of infancy was ended. That cause of action is said to exist in the false representations made to her mother by Hoard to induce the marriage contract, and which he could be required to make good to the issue of the marriage. But the complaint does not rest upon any such right. That cause of action concedes the validity of the deed to Hoard and seeks to impose a trust upon the property conveyed by it, and is utterly inconsistent with the allegations of the complaint, which deny wholly the validity of the conveyance and the legal title of Hoard. The suggested cause of action was very properly made the subject of a new suit, which is itself before us on appeal, and should not be further considered here.

The judgment should be affirmed, with costs.

All concur, except Earl, J., not sitting.  