I dissent. I am of the opinion that, so far as the land conveyed to Mrs. Carter and Mrs. Schlotterback is concerned, the action is barred by the statute of limitations and by laches.
It appears that the deed to them was recorded on December 7, 1895, and that James Taylor Rogers was very soon afterward apprised of its contents. His right, if any, was one arising upon the contract made in 1851. It then became and ever since has been a vested right, and, consequently, a right which was under the protection of the courts in case it was violated or endangered. The conclusion that the action is not barred is predicated upon the proposition that no cause of action accrued in his favor until the death of William H. Rogers, on December 26, 1906, except, perhaps, an action to obtain a decree protecting him against a future conveyance by the grantees to an innocent purchaser for value. Van Duyne v. Vreeland, 12 N.J.E. 142, is cited as authority for this possible action.
I am by no means certain that even the accrual of an action of that character would not be sufficient to uphold the doctrine that the present action is barred. But the decision cited goes much further than that. It holds that a deed such as that executed to Mrs. Carter and Mrs. Schlotterback, if executed, as is here claimed, for the purpose of preventing an equal share in the estate from going to James Taylor Rogers upon the death of William H. Rogers, would be an actual and positive fraud, "a fraud upon the agreement" anciently made, and that it gives the claimant under such agreement an immediate right of action to obtain a decree declaring that such deed is "a fraud upon the agreement," and adjudging that the grantee shall "hold the land subject to that agreement," and that, upon the death of the grantor, such grantee shall convey to the claimant the share to which *Page 58 he would be entitled under the agreement. This would be, in substance, a decree that, instead of the absolute estate in remainder which the grantee would take by the terms of the deed, he should hold his interest in the land in trust for the benefit of such claimant, to the extent of the claimant's prospective interests, and practically annulling the deed as a conveyance of the absolute estate in remainder. Such an action could have been maintained by James Taylor Rogers, immediately after the execution of the deed in 1895. It would have been an action for relief on the ground of fraud, and it would have been barred in three years from the time the fraud was discovered or from the time when, by due inquiry, it might have been discovered. (Code Civ. Proc., sec. 338.) Such an action was a remedy fully adequate to secure to him substantially the same relief as he seeks by the present action. It would have been based on the same facts, and, if he had succeeded, it would have established those facts, as well as his rights under them. The present action should therefore be held to be barred on the same principle as that upon which it is held in equity that a suit is barred if it is based on the same facts and rights as would be necessary to sustain an action at law which is barred, although the relief sought in equity is not precisely the same as that which might be obtained at law. (Elmendorf v. Taylor, 10 Wheat. (23 U.S.) 152, [6 L. Ed. 289]; People v. Everest, 4 Hill (N.Y.) 71; Reeves v. Dougherty, 5 Yerg. (Tenn.) 222, [27 Am. Dec. 496]; Hambert v. TrinityChurch, 24 Wend. (N.Y.) 593; Wood on Limitations, sec. 58 and notes.)
The making of this deed was a clear repudiation by the grantor of the obligation of the agreement of 1851 and of any trust created thereby in the property conveyed, as well as of all claim of James Taylor Rogers to take an interest therein at the grantor's death. The latter's knowledge of the deed put him on inquiry as to its alleged fraudulent purpose and charged him with notice thereof. His neglect to begin any action concerning his claim during the ensuing eleven years of the life of the grantor, and until after the grantor's death had deprived the grantees of the grantor's testimony on the subject of the ancient agreement, and it should, upon familiar principles of equity jurisprudence, be sufficient to characterize the present action as a stale demand barred by his laches in failing to pursue the remedy at all times open to him. *Page 59