Van Ingin v. Duffin

SIMPSON, J. The bill in this case was filed by the appellant against the appellees, and seeks to set aside certain conveyances of lands executed to said defendant Elizabeth Duffin, respectively, dated September 25, 1891, April 8, 1896, March 1, 1898, August 25, 1898, and May 20, 1898, and to subject the property therein conveyed to a debt due the complainant January 12, 1889, and reduced to judgment on February 29, 1892, claiming that said lands so conveyed to said Elizabeth Duffin were paid for by her husband, said defendant P. J. Duffin. A demurrer was interposed to said bill, setting up the statute of limitations of 10 years, and the staleness of the demand; also additional demurrers, that the bill is without equity, and to the ninth section because it does not show any effort to discover the fraud, and mere ignorance will not excuse him; also, that no fraudulent concealment of facts is shown. It is settled by the decisions of this state that the statute of limitations may be set up in equity by demurrer where the bill shows that the cause of action stated in the bill is prima facie within-the bar of the statute of lijnitations or offensive to the rules which courts of equity adopt for the discouragement of stale demands.- Lovelace v. Hutchinson, 106 Ala. 418, 424, 17 South. 623. Appellants insists that it is not apparent on the face of the bill in this case that the cause of action is prima facie within the bar of the statute, because the bill does not allege that the defendant Elizabeth Duffin is and has been for the time required in the adverse possession [321] of the lands in question. It is not a question of adverse possession. A bill to set aside a fraudulent conveyance is a suit for the recovery of land and governed by the statute of limitations. — Washington, Adm'r, v. Norweed, 128 Ala. 383, 30 South. 405. The statute provides that actions for the recovery of lands must be commenced within ten years “after the cause of action has accrued.” —Code 1907, §§ 4832, 4834, par. 2. The plaintiff’s claim was due and payable before the execution of any of these conveyances, and consequently his “cause of action —to move against said conveyances — accrued at the time the conveyances were made, the latest one of them being May 20, 1898, and the bill in this case was filed September 25, 1908. The case of Washington, Adm’r, v. Norwood, supra, does not conflict with this conclusion. On the contrary, the point decided in that case is that, where a party was surety on a bond, his “cause of action” did not accrue until the breach of the bond, and, notwithstanding the adverse possession of the land, the statute of limitations did not commence to run against him until by the breach of the bond his cause of action accrued. In other words, in both cases the decision is that the cause of action accrues at the time when the party could file his bill to set aside the fraudulent conveyance, and the statute of limitations commences to run then. The bill alleges that the complainant has continuously resided in the state of New York, and that he did not discover the fraudulent acts committed by respondents until August 1, 1908, although the conveyances sought to be set aside were duly recorded in the probate judge’s office in Jefferson county, Ala. The notice effected by the registration statute is operative alike on residents and non-residents; but he insists, further, that the decisions on the question of the statute of limitations not [322] commencing to run apply to his case, so that the statute would not commence to run until the facts constituting the fraud were actually brought to his knowledge. The Code provides that: “In actions seeking relief on the ground of fraud, where the statute has created a bar, the cause of action must not be considered as having-accrued until the discovery by the aggrieved party of the facts constituting the fraud, after which he must have one year within which to prosecute his suit.”— Code 1907, § 4852. Our decisions are that “ignorance of right, there being no more than mere passiveness, mere silence, on the part of his adversary, cannot lie ingrafted as an exception on the statute of limitations, without a destruction of its wise policy, and without an encouragement of mere negligence. * * * In the absence of fiduciary relation between the parties, imposing the moral and legal duty to disclose, there must be some act or conduct calculated to mislead or deceive or to Jail inquiry.” — Tillison v. Ewing, 91 Ala. 467, 468 8 South. 404; Underhill, Rec’r, v. Mobile Fire Department Ins. Co., 67 Ala. 45, 51; Martin v. Br. Bank at Decatur, 31 Ala. 115, 122. The complainant has not brought himself within the terms of the exception. The decree of the court is affirmed. Haralson, Anderson, and Denson, JJ., concur.