concurring specially:
The act of Congress under consideration, according to a decision of the Supreme Court of the United States, is a “statute of limitations and repose.” Lane v. Hoglund, 244 U. S. 174, 178, 61 L. ed. 1066, 1067, 37 Sup. Ct. Rep. 558. Being a statute of limitations there is an implied condition therein that in' case of fraud it shall not commence to run until the fraud is discovered. “A statute of limitations,” says Judge Story, “ought not, then, to be so construed as to1 become an instrument to encourage fraud, if it admits of any other reasonable interpretation; and cases of fraud, therefore, form an implied exception, to be acted upon by courts of law and equity, according to the nature of their respective jurisdictions.” Sherwood v. Sutton, 5 Mason, 143, Fed. Cas. No. 12,782. The Supreme Court of the United States in construing a statute of limitations, sec. 8 of the act before us, approved the language of Judge Story, just quoted, and said: “The cause of action did not *560accrue until the discovery of the fraud; that such was the undisputed doctrine of courts of equity, and that the weight of authority, English and American, applied the same rule to actions at law. Exploration Co. v. United States, 247 U. S. 435, 447, 62 L. ed. 1200, 1206, 38 Sup. Ct. Rep. 571. See also Bailey v. Glover, 21 Wall. 342, 22 L. ed. 636; Rosenthal v. Walker, 111 U. S. 185, 190, 28 L. ed. 395, 397, 4 Sup. Ct. Rep. 382; State v. Stone Cattle & Pasture Co. 66 Tex. 363, 367, 17 S. W. 735. It appearing by the petition of relator that at the time the Secretary of the Interior declined to deliver the patent more than two years had elapsed since the receiver’s receipt and certificate of final entry were issued, it developed upon the appellants to show that the fraud charged was not discovered by them two years before they toolc action to set aside the entry. This they failed to do in their answer, and, therefore, the right to further withhold the patent is barred.
I do not overlook the principle that a mandamus will not be awarded “to compel the performance of a wrong or to confirm or perpetuate a fraud” (Lane v. Duncan Townsite Co. 44 App. D. C. 63, 67, 245 U. S. 311, 62 L. ed. 311, 38 Sup. Ct. Rep. 99); and if there, was before us such evidence of fraud as we could consider I would be of the opinion that a mandamus should be denied. But a demurrer admits only such facts as are well pleaded (Commercial Bank v. Buckner, 20 How. 108, 125, 15 L. ed. 862, 868), and the facts set forth in the answer are not well pleaded,: — are not pleaded so as to constitute a defense, — and therefore must be put out of sight and the case considered as if they were not in it. This being so, the judgment awarding the writ should be affirmed. Affimied.
A petition for allowance of a writ of error from the Sup wane Court of the United States was granted May 26, 1919.