This bill is filed to obtain the conveyance of lots Nos. 61 and 62 in section 3 in the city of Detroit.
The bill alleges that the lots in question were granted to David McLean by the Governor andjudges of the then Territory of Michigan, acting as a Land Board ; but that the deed making said grant was not delivered.
That Robert Smart, now deceased, in December 11316, obtained a deed of conveyance of the lots in question, representing himself as Assignee of Catharine Bailey, Assignee of John Murphy, Assignee of said David McLean.
It denies that McLean ever made any such assignment, and that the representations of said Smart to said Governor and judges were made to defraud them and to defraud the complainants. The first question raised under the demurrer is the statute of limitations.
•The statute of the 5th November, 1829 required all actions of this kind to be commenced within ten years from the passage of the act.
This act was repealed by the Revised Statutes, the repeal to take effect on the 31st day of August, 1838.
The statute of the 15th May, 1820'required all suits of this character to be commenced within twenty years. The suit in this case was commenced on the 14th May, 1840.
The existing law, section 1st, part 3d, title 6, Revised Statutes, pro. *286vjd0s that ti D0 pej'gon shall commence an action for the recovery of “ any Ends, nor make any entry thereupon unless within 20 years “ after the right to make such entry, or bring such action first accrued “ or within twenty-five years after he or those from by or under whom “ he claims, shall have been seized or possessed of the premises, ex- “ cept as hereinafter provided.”
But by the 8th section of the same statute, it is provided that “where “ the cause or right of action or entry shall have accrued before the “ time when this chapter shall take effect as law, the same shall not “be affected by this chapter, but all such causes of actions shall be “ determined by the law, under which such right of action accrued.”
The last section of the repealing act provides that “in any case “ where the limitation or period of time prescribed in any of the acts “ hereby repealed, for the acquiring any right or the barring any “ remedy, or for any other purposes shall have begun to run, and the “same or any similar limitation is prescribed in the Revised Statutes, the time of limitation shall continue to run and shall have the like “ effect as if the whole period had begun and ended under the ope- “ ration of the Revised Statutes. ”
Whether this section intended to continue in force the provisions of - the acts of limitation thereby repealed, where the time had “begun to run, ” or whether the time prescribed in the Revised Statutes was intended as the period at the expiration of which the suits shall be barred is perhaps doubtful.
What time of limitation shall continue to run ? I am inclined to the opinion from the whole of the provisions of the statutes, that the intention of the legislature was to preserve thebenefitof the statutes of limitation, which were repealed. But whichever construction may be given will not from the view I have taken of the case, change the result.
Whatever right David McLean possessed accrued in 1809. All of his right and title, became vested in the present complaints, upon his decease, and before the deed from the Governor and judges to Smart in December, 1816. Their right of action then must have accrued at that time. No new or other right has since accrued.
There is no allegation of any disability or excuse made or attempted for the delay.
*287The second ground urged upon the hearing is the presumption arising from the lapse of time.
There seems to be now no doubt that the statute of limitations maybe taken advantage of, upon demurrer ; but whether the same rule holds in this case, there seems to have been much diversity of opinion. One of the earliest cases upon the subject is the case of Deloraine vs. Brown, Brown's, C. R., 635, The authorities are there, collected in a note to the case made by Lord Reddesdale. The same learned Judge afterwards in commenting on this case in Hoveden vs. Lord, Annesley, 2 Schoales & Lefroy, 637, says; “ In the case of Lord “ Deloraine as. Brown, an attempt wa.s made to take advantage of “ the length of time by demurrer. The decision of that case as re- “ ported by Brown, does not convey much satisfaction to my mind ; “ and perhaps the note which follows will account for the judgement “ of the court being delivered some what in a hurry.
“The first judgment as reported is hardly intelligible, and then there “ is an explanation given next day, it is however, rather contrary to “ what Lord Kenyon determined in Beckford vs. Close, which is ci- “ ted in that case. This arose perhaps from Lord Thurlows not hav- “ ing, under the peculiar circumstances in which he stood, sufficiently “ considered that this was matter of the law of a Court of Equity, “Lord Kenyon held that a demurrer to a bill, because it did not show “ a good tide to redemption within twenty years, was a good demzjr- “ rer. Why % because it was a rule of the court that no redemption ** should be allowed after twenty years, and therefore the party “ should be put to bring his case within that rule. Lord Thurlowsopip- “ ion was given in a hurry : and many cases were then pending, in “ which much injury might have arisen to the parties if the judg- “ roents had not then been given ; but it seems to me that Lord Keq- “ yon’s opinion was perfectly tenable on Lord Thurlow’s own quali- “ fication; that is, that when a party does not by his bill, bring him“self within the rule of the court, the other party may by demurrer “ demand judgment, whether he ought to be compelled to answer. “If the case of the plaintiff as stated in the bill will not entitle him “ to a decree, the judgment of the court may be required by demur* “ rer whether the defendant ought to be compelled to answer the bill; “ that I take to be the matter of the law of a Court of Equity to be de- *288“ cided according to its rules and principles. However it is clear “that in this case of Lord Deloraine vs. Brown, Lord Thurlow was anxious that his overruling the demurrer should not be considered as “deciding upon the case; and the cause never came on again, “ Lord Deloraine being advised that the length of time was a bar. ”
In the case of Chalmondeley vs. Clinton, 11 Cond. Eng. C. Rep. 68, it is held that where there has been an adverse possession not accounted for by some disability for more than twenty years, a Court of Equity ought not to interfere,
In the case of Tuttle vs. Willson, 1 Ohio Rep. 26, it is said, that, “it is indeed, well settled, that a statute of limitations, will now be “applied, in Equity where it would bar the claim at law. 1 Story's “ Eq. 502 ; 2 Story’s Eq., 735; 6 Peters, 66. The complainant “ filed her petition in 1838, a period of twenty-three years having “elapsed after her cause of action arose, and in our view, the stat“ute is a bar to her claim. But if it were otherwise, the staleness i‘ of the demand would be fatal to its farther prosecution, and inde- “ pendentof the act of limitation, affords a complete defence. Where “ rights are unreasonably neglected, the presumption is legitimate, of “an intention to abandon them. “Nothing,” says Lord Camden in “Smith vs. Clay, 3 Brown’s, Ch. Rep., 640, “can call forth this “ court into activity, but conscience, good faith and reasonable dili- “ gence: where these are wanting the court is passive, and does noth' “ ing. Laches and neglect are always discountenanced, and there- “ fore, from the beginning of this jurisdiction, there was always a “ limitation of suit in this court.
“This language of Lord Camden is cited with approbation by the “ Supreme Court of the United States, 9 Peters, 416. In 7 Ohio, “ Rep. 62, the same principle is also recognized by this court. ”
Demurrers have, been uniformly allowed to bills to redeem after the lapse of 20 years.
In the ease of Lord Annesley vs, Hoveden, before mentioned, Lord Reddesdale says :
“ This brings me to consider the case finally in another point of ‘ view, supposing the plaintiff might have had relief on the ground ’ pof fraud, if he had pursued his title with due diligence, the answer «is, it appears that the alleged fraud was discovered by the party at *289least so long ago, that in 1735 a bill was filed, imputing fraud, and “ impeaching the transaction on the same ground. Therefore, the “ position that fraud, is not within the statute, because it is a secret “thing, which canDotbe discovered, is not applicable to this case ; “ for the fraud imputed in this case is represented in the bill of 1735; “ that is, it is there stated that the release was a release which the “ party conceived he had a right to impeach, on the ground of fraud, “and for that purpose to obtain from the opposite party a discovery “.of all the facts and circumstances demonstrating the fraud. This “ was known to the person claiming in 1735. Therefore, whatever “ right of action might have accrued on discovering any particulars “of the fraud different from what were apparent in 1726, must beta- “ ken to have accrued in 1735 ; but was not pursued in 1794, a peri- “ od of near sixty years after the first bill filed. 1 hold it utterly im- “ possible for the court to act In such a case. ' A Court of Equity “ is not to impeach a transaction on the ground of fraud, where the “ fact of the alleged fraud, was within the knowledge of the party “ sixty yehrs before. On the contrary, I think the rule has been so “ laid down, that every right of action in equity that accrues to the “party, whatever it may be, must be acted upon at the utmost within “ twenty years. ”
That the presumption arising from lapse of time, may be taken advantage of upon demurrer, is settled also in the case of Livingston vs Livingston, 4 J. C. R. 299; there Chancellor Kent says : “ The difference between this case and the one decided yesterday, is very ma- ‘‘ terial; here is a demurrer to the whole bill, and the great lapse of “ time taken in support of it, whereas in the other case the defen- “ dant, by his answer adverted to the covenants to pay and put his de- “ fence on counterclaims.” And effect was given to this defence under the demurrer. The bar from lapse of time is a conclusion from acquiescence, an inference from facts; which need not be setup by demurrer, answer or plea. 1 Baldwin, 418.
Where there are such conflicting authorities, I feel myself at liberty to adopt the rule that appears to me the most reasonable and convenient. What is the case now presented to the court % Here has passed by a period of upwards of twenty-three years. No disability or excuse for this delay pretended ; no new_discovery of fraud suggested.
*290The parties lie by, until as appears from the bill, Smart, the party charged with having committed the fraud, is dead. Campbell, his grantee, is also dead. No one is left to answer these charges. If the lapse of time ought to bar this stale claim, I see no reason or propriety in compelling these parties further to pursue this litigation. If any disabilities existed, it would have been easy to have stated them. If fraud has been recently discovered, it should have been so alleged.
And this allegation not having been made, the case cannot be aided by proof, for the proof to be admissible must be founded on some allegations in the bill and answer. 1 LcLean’s Rep.j 489.
A Court of Equity will lend its aid to detect and redress a fraud, notwithstanding the lapse of time, but when the fraud is discovered, the parties must act upon that discovery within a reasonable time. The party seeking redress should not wait for a period of between twenty-three and twenty-four years, until all those who were cognizant of the transaction shall have paid the debt of nature, and no one is left to deny or explain the allegations, Without giving any excuse' for this delay.
Demurrer allowed.