
    Michael Smith v. John F. Davidson et al.
    
      The statute of limitations a bar in equity.
    
    Where action for the recovery of lands held under sales by executors, administrators or guardians, is barred by Comp. L., g 7137, they cannot be reached in equity.
    Error to Wayne.
    Submitted April 9.
    Decided April 24.
    Bill to set aside a deed. Complainant appeals.
    
      D. B. & H. M. Duffield for complainant.
    
      D. G. Holbrook for defendants.
   Cooley, J.

Complainant files his hill as one of the heirs-at-law of Hugh Smith, late of the county of Wayne in this State, deceased, to set aside a conveyance of certain real estate made under an order of the probate court for the county of Wayne by the administrator of the estate of said Hugh Smith for the purpose of paying debts. The sale was made September 28, 1867, to one Czar Jones, and was confirmed by the probate court two days thereafter. Jones conveyed the land to one Elliott in October, 1867, and Elliott to the administrator in February following, and the latter, in the same month to the defendant Davidson, who immediately went into possession. The sale is claimed to have been void, first, because the notice of sale given by the administrator was not published for the time required by the statute; and second, because the pretended purchase by Jones was merely colorable, and was really made in his name for the benefit of the administrator, and in order to defraud the estate. The good faith of the purchase by Davidson is not assailed, but it is claimed that he had by the record constructive notice of the defect in the notice of sale, and sufficient notice to put him on inquiry as regards the good faith of the purchase by Jones.

The bill was filed after Davidson had been in possession for more than five years. The statute (Comp. L., § 7137) limits the time for bringing “any action for the recovery of any lands” or for mailing entry thereon to five years “where the defendant claims title to the land in question, by or through some deed made upon a sale thereof by an executor, administrator, or guardian” under the order of a court of competent jurisdiction. Had the complainant, therefore, instead of bringing suit in equity, instituted a suit in ejectment, it is clear that his remedy would have been barred. . Toll v. Wright, 37 Mich., 93. But if barred at law, it must be held barred iniquity also. The policy of the statute, which was to quiet all titles derived from such sales after five years’ peaceable possession under them, cannot be evaded by the party electing one forum rather than another for litigating the rights which he disputes; but equity by analogy will apply the limitation to his case. McLean v. Barton, Har. Ch., 279; Jenny v. Perkins, 17 Mich., 28; McKinney v. Miller, 19 Mich., 142.

The decree, which dismissed the bill, must be affirmed with costs.

The other Justices concurred.  