
    Radcliff and others vs. Rowley and others.
    Tils sale of real estate, by a sheriff, upon an execution against the nominal owner thereof, conveys an apparent legal title to the purchaser, which can only be displaced by the evidence of witnesses, whose testimony may soon be lost by lapse of time. A person, therefore, claiming to be the owner of real estate, which has been thus sold under an execution, upon a judgment improperly obtained, may come into a court of equity for the purpose of obtaining a decree to quiet his title to the premises, and to remove the cloud therefrom.
    In a bill for relief on the ground of fraud, it is not necessary that the complainant should allege that he has discovered the fraud complained of, within six years. And a demurrer will not lie to such a bill, although it appears that the fraud occurred more than six years before the commencement of the suit, unless it also appears, at least by necessary intendment, that the fraud was discovered, by the party aggrieved, more than six years before he filed his bill for relief. Where that does not appear, the defendant must be left to make his defence by plea, or answer, so as to present an affirmative issue, upon the question as to the discovery of the fraud by the complainant.
    Upon a general demurrer to a bill, for relief upon the ground of fraud, it is not necessary to inquire whether some grounds of relief stated in the bill do not appear, Upon the face thereof, to be barred by lapse of time. If that question is sought to be raised, on demurrer, it must be done by a separate demurrer to those particular part of the bill.
    This was an appeal, by the defendant Rowley, from a decretal order of the vice chancellor of the first circuit, overruling a demurrer to the bill of the complainants.
    In 1812, W. Radcliff purchased of G. Van Benthuysen a lot of land in Otsego comity, and received from him a conveyance in fee, with warranty. Radcliff gave back a mortgage, on the west 260 acres of the lot, to secure a part of the purchase money. That mortgage was afterwards foreclosed, and the mortgaged premises were bid in by the defendant Rowley, in January, 1821, but as the bill alleged, for the benefit of Tan Benthuysen. At the time of the first mentioned sale to Radcliff, in 1812, there were two outstanding judgments against Tan Benthuysen, which were liens upon the whole premises. And the bill alleged, that after the mortgaged premises had been conveyed to Rowley under the statute foreclosure, for the benefit of Van Benthuysen, Rowley paid the amount of the judgments, to the owner thereof, with the funds of Van Benthuysen which he then had,in his hands as the agent of the latter; and that, with the intention of defrauding both Radcliff and Van Benthuysen,- the defendant Rowley took an assignment of the judgments, in his own name, and caused the part of -the lot not. covered by the mortgage to be sold Under executions upon the judgments, and became the. purchaser thereof for his own benefit, in April, 1821. The bill also charged, that Rowley caused that, part of the lot to be sold, on the executions, without any notice to Radcliff of the existence of' the judgments, or of the proceedings thereon, and intentionally concealed a knowledge of the facts from him; -and for that purpose that he issued the executions irregularly, without having revived the judgments by scire facias; that, at the time Of the’ issuing of such executions, Van Benthuysen was the owner of valuable real estate "in the counties of Warren and Essex, and also in the county of Dutchess, where he resided, upon which estate the judgments were then liens, and which lands should have been first sold to satisfy the judgments, if any thing was due thereon as against Van Benthuysen. The bill also stated the commencement of. a suit in the court of chancery by Van Benthuysen against Rowley, in 1831, for an account; ■ charging the defendant in such suit-with various frauds, and claiming, among other things, the land purchased in by Rowley • on - the before -.mentioned executions; that a decree was made in that suit, in November 1834, 'deciding that Van Benthuysen was- the beneficial owner of the land so purchased" in, and that-Rowley- only held the title as-trustee for him, and directing Rowley toconveyto him under the direction of a master, and that the same was so conveyed in January,1839; but that under- an order made-in that cause, subsequent tó the decree, and before the deed had been given, an endorsement was made upon the deed, by the.master, stating that the-land thereby conveyed-was subject to a lien, in faVor of Rowley, for such' balance'as might be found- due to-him under the decree in that -suit. -Radcliff died in possession of the premises in controversy, in July, 1842, and the complainants in this-suit, as-his-heirs, then went into possession-thereof, and were in-such possession at the time'of-filing their' bill in this cause, in September,-1844. A final decree was made "in the suit of Van Benthuysen against Rowley, -in November, 1840, by virtue of which the latter claims a lien upon the premises in question for the balance decreéd in his favor. Yan- Benthuysen died in March, 1841, and the suit was'revived, by Rowley, against his representatives • arid heirs. And the" defendant' Rowley, at the time of the commencement of this suit, was proceeding" to have the premises which were so purchased in by him, on his executions, sold, under the decree in his favor against Yan Benthuysen. The other defendants were the mortgagees of the premises, claiming under Rowley, and as the bill alleged were not boria -fide mortgagees without notice of the complainants’ rights.
    The complainants prayed that they might be quieted in their title to the premises in controversy, against the claims of the defendants, and that the defendants might be decreed to relinquish then pretended hens upon the premises, "under the decree against Yan Benthuysen and the mortgage of Rowley, or for such relief as the complainants were entitled to upon the case made by their bill. The defendant Rowley demurred to the whole bill for want of equity, tie also stated^ as a special ground of demurrer, that the causes of complaint stated in 'the bill arose more than ten years before the commencement of this suit, and that the-acts of "fraud, charged in the bill, were known" to Radciiff the ancestor of the complainants, in his lifetime, and were discovered-by him more than six years before his death, and before the filing of the bill in this cause.
    The following opinion was delivered by the vice chancellor:
    W. T. McCoun, Y. 0. There áre two principal grounds of demurrer'in this case: 1. Want of equity in the bill. 2. That the relief is barred by the statute of limitations; more than six years having elapsed, since knowledge of the" facts.
    The bill tells the story of a series of frauds -practised by Rowley upon his client and -principal, Yah "Benthuysen, and upon the complainants’ ancestor, Williani Radciiff. But it claims relief only in respect to that portion of the lands which was sold under the executions, upon the Banyer judgments, in April, 1821. The other portion, sold under the mortgage in January, 1821, it does not attempt to reclaim; and if it did, the statute of limitations would be a bar. So with respect to the 260 acres sold under the executions, if by that proceeding the complainants or their ancestor had been dispossessed of the land, and the object of this bill was to set aside the sale, and to be restored to the possession and ownership of the land, there would seem to be no necessity for coming into this court, or at this late day the claim to such relief would be barred by the statute.
    But the bill shows that notwithstanding the sheriff’s sale, and the failure to redeem in 1822, the ancestor of the complainants remained in the undisturbed possession, down to the time of his death, in July, 1842. In the mean time a litigation took place between Rowley and Van Benthuysen; and as between them, the latter was adjudged to be the owner, subject to the lien or charge of the former, for the balance of his account. And subject to that charge, Rowley conveyed to Van Bénthuysen on the 17th January, 1839. Thus Van Benthuysen became vested with the legal title, and as between him and Radcliff, an equity arose, that the latter should be protected against that legal title, by reason of Van Benthuysen’s covenants and warranty, in his original deed to Radcliff.
    It then appears, that since the death of Radcliff, his heirs, the complainants, have remained in the undisturbed possession of the land, and that Rowley has obtained a decree for the balance due to him from Van Benthuysen. This decree was made on the 24th of November, 1840, and was enrolled on the 14th of September, 1842. Van' Benthuysen died on the 14th of March, 1841, and Rowley is proceeding to a sale of the land under that decree, which sale is advertised for the 17th of September, 1844. This proceeding of Rowley, and the sale he has advertised, operate to the prejudice of the' title of the complainants, and to their possession and the use and enjoyment of the property—and they therefore claim to be protected in that possession and enjoyment, as against Rowley, and also against bis mortgagees, the Messrs. Crafts.
    The bill appears to me to show a strong case for that purpose, as against these parties. A case, too, of which chancery has jurisdiction, on the ground of removing clouds from the title of the complainants, and obstacles in the way of their full enjoyment of the property; which is an acknowledged head of equity. (See Mayor, fyc. of Brooklyn v. Meserole, 26 Wend. Í37. Van Doren v. Mayor of New- York, 9 Paige, 389, 390.)
    I am of opinion, also, that this case for equitable relief may well be considered as having arisen when Rowley undertook, or threatened, to enforce the decree, for his balance, against the land in question; or that an equity arose to Radcliff, to have the land exonerated from all claim of Van Benthuysen, and of Rowley as his creditor, the moment Rowley conveyed it to Van Benthuysen, by his deed of the 17th of January, 1839. This was within six years of the time of filing the bill.
    The demurrer must, therefore, be overruled, with costs.
    
      B. F. Butler, for appellant.
    There is no equity in the bill, to entitle the complainants to the relief sought by it.
    If there be any such equity, it is barred by the statute of limitations, for the reasons set forth in the demurrer.
    
      A. H. Dana & A. C. Bradley, for respondents.
    As to the lapse of time, which is assigned for cause of demurrer. Limitation of time by statute is not a bar to the jurisdiction of the court; but is only a defence which may be set up in pleading, or otherwise. It cannot be insisted upon for the first time at the hearing. It is not like the case of a specified amount that the court will alone take jurisdiction of; where if it appear at the hearing that the amount in controversy is below that sum, the bill will be dismissed. This defence.should properly be made by plea or answer. A demurrer raises only such objections as would be ground for dismissing the bill, at the hearing, for inherent defect. (Mitf. 272. Prince v. Heylin, 1 Aikin, 494.) This demurrer rests mainly upon the limitation of six years, for applying for relief from fraud; but the cáse made by the bill does not show that the' limitation applies. Although’it states' transactions of more 'than six years since, it'does not show that the complainants have hád knowledge of them six years. This is necessary to be "stated. (2 R. S. 229, 2d ed.) The limitation in this case is not like that "prescribed as to actions at láw. A plea that six yéars have elapsed,'Would not be good; it must-be averred that the six years have elapsed since •the parties "had" knowledge of the facts. Nothing is to be implied, beyond the'express statements in-the bill. And it is not stated 'that" six'years have elapsed since the complainants had knowledge of the facts. A case is not therefore "stated that comes within the "statute. (See Story’s Eq. Pl. 448. 4 Paige, 374.) It is not necessary, "as in "the case of the lapse of 'twénty years, to avoid the effect of it, by "an averment showing an exception ; for in that case it is piresuméd "to fre an absolute bar, unless there was some disability; which' is to be shown. And even ignorance of the facts "is no answer. (Humbert v. Trinity Church, 24 Wend. 587.) Nothing need be averred but what is -susceptible of proof. An averment-that complainants had not knowledge could not be proved, if'any issue should be made upon it" by the answer. The proper issue would be upon an affirmative averment' by defendant, thát the complainants had knowledge. Such an averment, in this bill, would have been objectionable upon another'ground, as r equiring proof thafanother person from Whom" the defendants derived then right had not knowledge. The bill is not for relief against the original acts of fíáud alleged-to'have been committed" by'defendant, taken by themselves. The possession of complainants is sufficient against any claim of right claimed therefrom. But the defendants claim how upon a new ground; viz." a decide of this court, inade in 1840. It' is hot attempted to impeách that decree; hut as eoihpláinahts Were hot parties thereto, and" not froundthereby, they séék to Show that the attempt riíá'de by defendants, under color of that "decree," is fraudulent "as against theha. The "matters set up by the bill would be'a defénce to an action of ejectment;;if it should b'e’ brought' by defendants for" recovery of possession. But such a suit may not be brought; and the existence of the claim impairs the title. The transaction as to the mortgage, is of later date. The mortgage appears to have been given in 1831. The evidence of it was recently furnished to complainants. The lapse, of time since the mortgage was given is not the question. The mortgage was dormant, as no claim was made under it. It became material only when the new claim was set up by Rowley. The transactions involved may be considered as continuous, from 1821, when the. sale, took place under the judgment, till the present time, when a new sale is attempted under a decree in the suit with Van Benthuysen. And the complainants are in time if they have proceeded within six years from consummation-
    As to the other grounds of demurrer. This bill may be regarded in the nature of a bill of interpleader, or a proceeding supplemental to the suit between Van Benthuysen and Rowley, There is no impeachment of the decree. The rights of other parties are to be considered. The decree is valid as between the parties to that suit; but it may be inoperative as to others. The real question is, whether the decree of the court settling that Van Benthuysen, and not Rowley, was the owner of the land in question, has not no.w put an end to the original controversy, and whether defendant is.not no.w limited to a lien upon whatever right Van Benthuysen had, which these complainants say was none at all against his own conveyance with warranty. There may be surplusage in the bill in respect to former proceedings, but that should be the subject of exceptions for impertinence. The mere statement of frauds long since committed, is no objection to a claim for relief against a new attempt to carry them into execution. The demurrer cannot be. sustained in part only. And being clearly not well taken as to some portions of the bill, it should be overruled.
   The Chancellor.

If the bill intended to charge, in this case, that nothing was due upon , the mortgage at the time of the sale under the statute foreclosure, and that charge was true, the sale was a nullity; and the ancestor of the complainant had a perfect defence at law to an action to turn him out of possession. And after such a lapse of time it is too late to seek relief in any court. If any thing was due upon the mortgage, the foreclosure was regularly made, and cannot be disturbed upon the ground that the appellant represented to the bidders that he was about to bid it in for the benefit of the mortgagee ; which representation, as I infer from the bill, was true at the time it was made. If so, there was no fraud in the purchase ; but the fraud, if any, was a subsequent fraud, upon Van Benthuysen, in withholding the property from him. For the foreclosure being regular, and no false representation having been made to prevent competition, Yan Benthuysen was entitled to the mortgaged premises at the price for which they were struck off to his agent or trustee.

This part of the bill, however, may be material for another purpose, and I presume that was the object for which these charges were inserted in the bill. The appellant subsequently caused the other half of the lot, which had been conveyed to Radcliff with warranty, to be sold under the executions against Yan Benthuysen, whose property was primarily liable for the payment of the judgments. And if Yan Benthuysen was then the beneficial owner of the mortgaged premises, under the statute foreclosure, those premises should have been first sold under the executions. Rowley, who knew the fact, was guilty of great injustice in causing the other half of the lot, which was only secondarily liable, to be sold first and to be bid in for his benefit; even if the judgments belonged to himself, and had been purchased on his own account and paid for with his own funds. But if, as the bill charges, the judgments had been paid for with the funds of the judgment debtor, in the hands of Rowley as his agent, then the judgments, though nominally assigned to him, were in fact paid and satisfied. And causing the lands of Radcliff to be sold upon the executions issued on those judgments, under the circumstances stated in this bill, either with or without the consent of Yan Benthuysen, was a gross and palpable fraud; against which a court of chancery ought to relieve the complainants, if their remedy is not barred by lapse of time. It is therefore unnecessary, for the present, to consider what new rights, if any, Radcliff acquired under the decree of May, 1834, in a suit to which he was not a party; or under the conveyance to Yan Benthuysen in pursuance of that decree, and of the order of the 8th of January, 1839.

If the allegations in this bill are true, I am inclined to think Rowley did not obtain the legal title to the premises in question by virtue of the sheriff’s sale. If so, the complainants, who are in possession, can successfully defend themselves in any suit at law which may be brought against them to disturb that possession, even as ¿gainst the mortgagees of Rowley, or against a purchaser under the decree in his favor against Yan Benthuysen. But upon that question I do not intend to express a definitive opinion at this time. For if they had a good defence at law, they had also a right to come into equity for relief, to remove the cloud upon their title, caused by the alleged fraud of the appellant. The judgments and executions' and the sale by the sheriff give "ail apparent légal title to the purchaser, and to those who are claiming under him as subsequent mortgagees, which apparent title can only be displaced by the evidence of witnesses; and that evidence may soon be lost by lapse of time. It is therefore a proper case to come to a court of equity with, for the purpose of obtaining a decree to quiet their title to the premises, and to remove this cloud therefrom. (See Pettit v. Shepherd, 5 Paige, 501, and the cases there referred to.)

Is the complainant’s claim to relief then barred by lapse of time 1 This, it will be seen, was not a case of concurrent jurisdiction, in which the right to relief in this court would be barred in analogy to the time allowed for bringing a suit at law. For Radcliff being in possession, at the expiration of the fifteen months after the sheriff’s sale, he could not institute a suit at law to try this question of fraud. His only remedy at that time was to file a bill in equity to set aside the sheriff’s sale, and thus to remove this cloud, which the appellant’s fraud has cast upon his title. One claim to relief is. founded upon the alleged fraud, in obtaining an apparently good paper title to the ptemises in question, under the forms of law, after Rowley knew.the judgments .had.been paid with the funds of the judgr ment debtor. It is a case, therefore, so far as the complainants seek relief by removing that cloud from their title., in .which, the suit must be brought in this court within six years, after the discovery, by, the aggrieved party, of the facts, constituting the substance of the alleged,frg.ud. (2 R. S. 301, § 51.) But it does not appear, on. the. face of this bill, when W. Radcliff discovered the. alleged fraud, or that he ever did discover the. fact, now stated, by his heirs, that the judgments had been paid by Rowley, as the. agent- of the judgment debtor, with funds in,his hands belonging to the latter, before. the sheriff’s sale.. The bill shows that .Radcliff knew, of the sheriff ’s sale within.a year or two after it occurred, and-that he. discovered something, or supposed he had, which induced .him to file a bill in", this court against Rowley and. Van Benthuysen jointly. But it does not appear chat it was for the same fraud no.w complained of. And I think upon a. proper construction of the statute, it is not necessary that the complainant should allege in his bill that he has discovered the. fraud, complained of, within six years. A demurrer, therefore, will not lie, to a bill-for relief on the ground of fraud, although it appears that the fraud occurred .more than six years before the commencement, of the. suit; unless it also appears positively, or by necessary intendment, that the fraud was discovered, by the party aggrieved,, more than six years before he filed his bill for relief. Where that does not appear, the defendant must be left to make his defence by plea or answer, so as to present an affirmative issue, upon.the question of the discovery of the fraud..

This is sufficient to dispose of .thismase, upon a general der. murrer to the whole , bill. It, is not necessary, therefore, to. examine the question whether there are not some grounds, for relief, of a recent date, stated in this .bill, which could, not have, been barred,, under any provision of the article of the revised stat ufes relative to the. time of commencing suits in courts, of equity. Nor is it necess.ary to inquire whether some- of the grounds of relief,.-stated.in this bill, do not appear upon the.face of the. bill to be barred by lapse of time. If that question is sought to be raised, on demurrer, it must be done by a separate demurrer to those particular parts of the Mil

The decretad order appealed from must be affirmed with costs.  