1 Molony v. L'Estrange, 1 Beut. 414. confirming is entitled to disaffirm. And therefore1, where the annuity had been paid for many years, and was never questioned till after the death of the grantor, when his son, who took the estate on which the annuity had been secured under a family settlement, refused to pay it, Sir Anthony Hart held, that this continued payment and acquiescence for so long a period was no confirmation, it being proved that the grantor, after he had granted the annuity, became dissatisfied with it, and complained of it as a hard bargain, in which advantage had been taken of him, and that he withdrew his confidence from the grantee of the annuity, observing that it "was shewn by the evidence, that he ton (4 Bro. P. C. 163), that length of time will not bar in case of fraud; yet such a conclusion is not to be drawn from a just view of that case. The only proposition which can be fairly grounded on that authority is this, that as fraud is a secret thing, and may remain undiscovered for a length of time, during such time the Statute of Limitations shall not operate; because, until such discovery, the title to avoid it does not completely arise. This is the true ground of the decision in the case of Booth v. Warrington, where the House of Lords held, that the discovery of the fraud being alleged to be at a subsequent period, and arising out of circumstances collateral, and it being established that such was the fact, a court of equity was well warranted in avoiding the transaction, notwithstanding the Statute of Limitations. In Hovenden v. Lord Annesley (2 Sch. & Lef. 635), a case in which the alleged fraud was discovered so far back, that in 1735 a bill was filed, imputing the fraud, and impeaching the transaction on this ground, which was not followed up till 1794, a period of near sixty years after the first bill was filed. Lord Redesdale, adverting to the notion, that time does not run against fraud, said, "I hold it utterly impossible for the court to act in such a case. A court of equity is not to impeach 1 transaction on the ground of fraud, where the fact of the alleged fraud was within the knowledge of the party sixty years before. On the contrary, I think that the rule has been so laid down, that every new right of action that accrues to the party, whatever it may be, must be acted upon at the utmost within twenty years." The true principle seems to be that, where there has been fraud, the statute does not run till the fraud has been discovered, afterwards it does; and, therefore, in a bill, for example, impeaching accounts for fraud, it must be charged that the fraud was discovered within six years; for, "if the fraud was known, and discovered above six years before exhibiting the bill, this, though a fraud, would be barred by the Statute of Limitations." South Sea Company v. Wymondsell, (3 P. W. 143). On the same princi ple, if the object of the suit was the recovery of land, or money secured of charged upon land, on the ground of fraud, the bill must charge that the fraud was discovered within twenty years, otherwise the remedy is gone. (See Weston v. Cartwright, Sel. Ca. Ch. 34; Bicknell v. Gough, 3 Atk. 538). did not intend to confirm, but was ignorant of his power to resist. The successive payments, therefore, operated nothing in the way of confirmation." Murray v. Palmer, 2 Sch. & Lef. 474. 2 Chesterfield v. When the transaction has been acquiesced in for many years, but is involved in obscurity, such as to furnish ground for belief that the vendor was not fully conuzant of his rights, the courts will consider such acquiescence merely as a lapse of time, and therefore in no way affecting his right to have it overhauled1. Where, however, the vendor, with full knowledge of all the circumstances, and of his right to set aside the contract, confirms the purchase, equity will not relieve against the sale, although the aid of the court would not originally have been withheld2. Whatever effect time may have in precluding relief against a Jansen, 2 Ves. bargain of a remote period, it affords no ground for a court of equity to enforce it, if shewn to have been illegal originally*. When a party comes into a court of equity for assistance, the court looks into the whole transaction; and if there be reason to suppose that evidence may have been lost, or facts thrown into obscurity by lapse of time, great weight is given to the objection of delay; but where the lapse of time has worked no prejudice to either party by loss of evidence, then it is not an objection to which, in transactions of this kind, the court gives much allow ance. 9. Equity varies its Relief according to Circumstances.]—The court, in awarding relief in a suit to set aside a contract executed, will have due regard to the conduct of the parties; and, therefore, if the vendor apply in reasonable time, will not only set aside the contract, but direct accounts between the parties, and if the purchase-money and interest shall appear to have been overpaid, will decree the surplus to be refunded; but when the vendor is under no disability, conuzant of all the facts, and acquiesces for a long period, the court will not direct accounts. Under such circumstances, to call on parties to refund by a retrospective de *"I have found no case in which a time. The cases of Beaumont v. Boultbargain made in direct contravention bee, 5 Ves. 484; 7 Ves. 599; Randall of the policy of the court has been al- v. Errington, 10 Ves. 423; and Wood lowed to stand, merely because it had v. Downes, 18 Ves. 120, are marked been submitted to for many years. instances of this kind." Per Sir AnThere are many cases in which relief thony Hart, in Molony v. L'Estrange, has been given after great lapse of 1 Beat. 414. sen. 549.; S. C. 1 Atk. 301. 'L'Estrange v. Molony, per Sir A. Hart, 1 Beat. 414. Baker v. Bent, 1 Russ. & My. 224; and see Nicholls v. Gould, 2 Ves. sen. 422. cree to account, might ruin them, for a mistake encouraged by the laches of the vendor,-a course of rigour inconsistent with the temperate dispensation which the justice of a court of equity administers. There are cases in which the court will not interpose its assistance, but leaves each party to make what he can of his remedy at law. This will sometimes be done when there has been great delay, unless the dismissal of the bill will leave a great "reserve of litigation in other forms," a circumstance which a court of equity generally feels it to be its duty to prevent by a final deci sion, adjusting and settling the rights of all the parties1. 10. Effect of the Reversion being Contingent.-According to some recent decisions, it appears that the court will not interfere to set aside the sale of reversionary interests when the reversion is dependent on contingencies, which, in the opinion of the court, do not admit of valuation. As, if the reversion be dependent upon the death of a party dying without issue, such a contingency is considered to be incapable of valuation, and consequently the rule as to reversionary interests cannot be applied 2. SECT. 18.-DECREE AT THE HEARing. 1. Declaration of Plaintiff's Right to Specific Performance, 662. 1. Declaration of Plaintiff's Right to Specific Performance. Assuming that the contract is liable to none of the objections which have been considered in the preceding sections of this chapter, the decree at the hearing establishes its validity, and directs a reference to the Master to inquire whether the vendor can make a good title. It was formerly usual to introduce a declaration to that effect into the decree; and this was done, either by declaring that the plaintiff was entitled to a specific performance, if a good title could be shewn, and then directing a reference as to the title, or by ordering that the title be referred to the Master, and following up that direction by a declaration, that if a good title was shewn, the agreement ought to be specifically performed. And though it seems that recently it has been usual to omit this declaration, yet it may well be doubted whether this be any improvement. Lord Eldon, in Stevens v. Guppy1, inti- 13 Russ. 182. mated his opinion, that difficulties might frequently arise from omitting to make such a declaration in the decree; and in Pitt v. Davis 2, his Lordship said, "that where the question of title is Ibid. n. not the only issue, but the defendant insists that, whether the title be good or bad, the plaintiff is for any reason not entitled to specific performance, it is specially necessary that there should be, in the first instance, a declaration that the plaintiff is entitled to have the contract specifically performed, if a good title be shewn." Where, however, the decree merely directs a reference to the Master as to the vendor's title, it seems that this must be taken by implication to mean, that, if he can make a good title, the purchaser is bound to accept it; and, accordingly, it is the present practice to direct at the hearing only a reference as to the title, reserving the declaration, that the plaintiff is entitled to have the agreement specifically performed for the decree on further directions. 2. Form of the Decree.]-The decree at the hearing is in the following form:-The court doth order that it be referred to Mr. -, one, &c., to inquire whether a good title can be made to the estates comprised in the agreement in the pleadings mentioned. And it is ordered, that he do state his opinion thereon to the court. And in case he shall be of opinion that a good title can be made, it is ordered that he do inquire and state when it was first shewn that a good title could be made. And, for the better discovery of the matters aforesaid, the parties are to produce before the said Master, upon oath, all deeds, papers, and writings, in their custody or power relating thereto; and are to be examined upon interrogatories, as the said Master shall direct. And this court doth reserve the consideration of all further directions and of the costs of this suit, until after the Master shall have made his report. And either of the parties shall be at liberty to apply &c. SECT. 19.-REFERENCE OF THE TITLE. 1. Purchaser's Right to have the Title 2. Purchaser may waive his Right to 5. The Reference proceeds upon the 6. Abstract, 671. Right of the Master to nominate kis own Conveyancer, 672. 7. Time allowed to Vendor to make a good Title, 673. 1. Purchaser's Right to have the Title investigated by the Master.]-It has already been observed, that the only question at the hearing of the cause is the validity and equity of the contract; the question of title does not then come into discussion. Hence the bill cannot be dismissed at the hearing, on the ground of the title being bad, provided the contract be good in point of form, and such as it is reasonable to enforce in point of equity. From the earliest period at which, in suits of this description, courts of equity took cognizance of the validity of the title, it has been held to be sufficient if the vendor could make a title before the Master signed his report; and, therefore, a mere objection to the title is not a ground for dismissing the bill at the hearing. Obvious as this consideration appears to be, it has not always been attended to. It has, however, been a settled principle since the case of Jenkins v. Hiles1, that if the court be satisfied with the and see 3 Mer. contract, it is of course, at the hearing, to grant a reference to the Master, to inquire whether a good title can be made? The object of this reference being, on the one hand, to give the vendor an opportunity of perfecting his title before the Master; and, on the other, to afford to the purchaser the means of having the title thoroughly investigated and established. 16 Ves. 646; 137. 2. Purchaser may waive his Right to have the Title investigated.] -This is the general rule of practice; but of course, like every other right, it may be waived, either by express declaration, or by acts tantamount. And this is all that Lord Eldon can mean, when, after laying down the rule, and explaining it in the spirit of the preceding observations, he adds:-"I have never understood that the rule has gone this length, that the defendant, against whom a specific performance is sought, may not, by an answer unequivocal to which he was not drawn by surprise—the propriety of which is not rendered disputable by any subsequent |