Evans v. Bacon , 99 Mass. 213 ( 1868 )

Foster, J.

In the view which the court have taken of this case, it is unnecessary to decide whether the present bill is to be regarded as one to impeach a decree for fraud, which it is said may be filed without leave of court; Adams Eq. 419 ; or osa bill of review, which, when not founded upon error in law apparent on the face of the record, can be filed only upon leave granted. Elliot v. Balcom, 11 Gray, 286.

The complaint of the plaintiff is, that in the original suit brought by him an entry of “bill dismissed” was improperly and fraudulently procured by the defendants. This entry was made April 7, 1862. In October 1864, a petition to have th.e decree set aside was heard and denied. The present bill was filed February 27,1867. The hearing in October 1864 must be taken to have established the fact that the decree was not a mere nullity, or a fraud upon the court which regal’d for its own dignity and the due administration of justice requires should be expunged from the record. If such were its character, the summary application heard before Hr. Justice Chapman must have prevailed. The question then is, whether the entry was a fraud upon the plaintiff in consequence of which he can now review or impeach the decree by the present bill.

A fraudulent act is binding upon the party by whom it ia committed, and voidable only at the election of the party defrauded. The right of the party injured to rescind a fraudulent transaction is one which may be waived, and which will be lost by immoderate delay in its exercise. It remains only for a reasonable time after the discovery of the fraud. This rule is founded upon the plainest principles of justice, and seems to be of universal application.^* The present question is, whether the right to vacate the original decree of “bill dismissed” is one to which the plaintiff" continued entitled for so long a period as two years and four months after the application before Mr. Justice Chapman had been denied. If that refusal was based upon the merits, and the plaintiff nevertheless insists that it is not conclusive, surely great promptness should be exacted of him in instituting the present proceeding. If the failure of that petition was caused by defect in form, it was still incumbent on the plaintiff, if he did not intend to acquiesce in the result, to try the present remedy without delay. It was important to the defendant to know whether he was to be allowed to become the undisturbed owner of the estate, the title of which was in litigation, or whether redemption or equitable relief from forfeiture was still claimed to exist.

It is true there is no statute of limitation fixing a precise period of time after which the right to file, a bill like the present is barred. But the limitation of a year for writs of review affords a close and forcible analogy. Plymouth v. Russell Mills, 7 Allen, 438. No reason is assigned and no excuse is offered for a greater delay in the present instance. And, without laying down any inflexible rule, the court are all of opinion that one year after the discovery of the alleged fraud is a period beyond which the right to file such a bill as the present ought not ordinarily to be allowed; and that the particular facts of this case furnish no reason for enlarging the time.

Bill dismissed.

* See Clarke v. Dickson, El., Bl. & El. 148, and Oakes v. Turquand, Law Rep. 2 H. L. 346.