Warner, Chief Justice,
dissenting.
It appears from the record in this case that William Bond was the owner of a city lot in the city of Macon, and died in the possession thereof, leaving one child, Mrs. Kah, formerly Mrs. O’Connor, who had two children by O’Connor, her former husband, named William ancl Bridget. William died in 1860; Bridget intermarried with Dillard, and died in 1863. Bond, the father of Mrs. Kah, died in 1851. In September, 1852, Mrs. Kah conveyed the city lot in dispute, by deed, to Thompson. In 1859, Thompson conveyed the lot, by deed, to Blake.. In 1869, Blake conveyed the lot, by deed, to Jones, and in December, 1869, Jones conveyed the lot, by deed, to the Central Railroad and Banking Company, the present defendant. Within a year or two after the death of Bond, Dillard, the husband of Bridget, who is now in life, took out *376. letters of administration on the estate of Bond, and sued Thompson for the lot. Thompson filed a bill to enjoin that suit, which was perpetually enjoined by the decree of the. court, on the ground, we suppose, (though it does not affirmatively appear,) that, he had purchased the lot from Mrs. Kah, the' heir-at-law of Bond, and there were no debts of the deceased to be paid. Thompson, and those claiming under him, have been in possession of the lot since his purchase from Mrs. Kah. In 1869 or 1870, it was discovered, for the first time, that Bond left a will, the contents of which were duly proved,as. well as the destruction thereof by Mrs. Kah, and a copy of the same was duly established by the court of ordinary of Bibb county, admitted to record, and Ross was appointed administrator with the will annexed, on the estate of William Bond, deceased. By the will of Bond the lot in dispute was devised to Bridget, the wife of Dillard. This suit was brought in the name of the plaintiff on the demise of Ross, the administrator of Bond, with his will annexed, and on the demise of Dillard, who was the husband of Bridget, the devisee under the will, against tl;e defendant to recover the possession of the lot.in dispute. The defendant claims title by prescription under the 2683d section of the Code. The evidence in the record is clear that Bond died leaving a will, by which he devised the lot in controversy to his grand-daughter, Bridget, the wife of Dillard ; that shortly after the death of Bond, his daughter and only child, Mrs. Kah, destroyed the will by burning it; that she concealed the fact of there being a will and its destruction, from the devisee and her husband, Dillard, and everybody else, so far as the record shows, except Thompson, to whom she communicated the facts when he pui’chased the -lot from her. There is no evidence that Blake, Jones or the defendant, had any notice of the fraudulent destruction of the will.and concealment thereof, at the time of their respective purchases of the lot. This suit was commenced within less than seven years from the discovery of the fraud, and the question is, whether the plaintiff is barred of his right to recover the possession of the lot as against the de*377fendant? The defendant insists that it has a good title by prescription, as against the plaintiff, because it, Jones and Blake, have been in the adverse possession of the lot for more than seven years under written evidence of title, without notice of any fraud brought home to either of them. This may be all very well, so far as they are concerned, if the prescriptive title under which they claim had been running in their favor as against the plaintiff in this suit. But was it running in their favor as against him? Mrs. Kali had no title to the lot when she conveyed it to Thompson. Thompson conveyed none to Blake, nor Blake to Jones, nor Jones to the defendant. The title to the lot was in the devisee under Bond’s will, and if there had been no statute of limitations or prescription, no one would question the plaintiff’s right to recover the possession of the lot from the defendant, on the strength of his own title. If the plaintiff is excepted from the operation of the statute of limitations, or prescription, until the discovery of the fraudulent concealment and destruction of the will, then neither the statute of limitations or prescription, run against him in favor of the defendant.
Was the plaintiff in this case excepted from the operation of the statute of limitations, or prescription, until the discovery of the fraud? The 2931st section of the Code declares that if the defendant, or those under whom he claims, has been guilty of a fraud by which the plaintiff has been debarred or deterred from his action, the period of limitation shall run only from the time of the discovery of the fraud. The 2688th section declares that a prescription does not run in cases of fraud debarring or deterring the other party from his action, until the fraud is discovered. This section relating to prescription, it will be observed, does not restrict the fraud by which the plaintiff has been debarred or deterred from his action, to the fraud of the defendant, or those under whom he claims, but declares in general terms that a prescription does not run in cases of fraud debarring or deterring the other party from his action. The defendant claims the benefit of the prescription as running in its favor. The plaintiff is the *378other party, .who, by the fraudulent concealment and destruction of the testator’s will was debarred and prevented from all knowledge of his rights under it, and consequently was debarred and prevented from bringing his action to recover the same. If the facts disclosed in this record do not make a case of fraud within the words and meaning of the statute, which necessarily debarred and deterred the plaintiff from bringing his action to recover the possession of the lot devised by the testator’s will, it is extremely difficult to say what would constitute a case of fraud, which would prevent the running of the statute as against a plaintiff claiming the benefit of the exception made by it in his favor. As already remarked, the 2688th section, in relation to a prescription not running in cases of fraud, is not confined to the fraud of the defendant and those under whom he claims, as declared in the 2931st section, but if it did, the defendant in this case claims title to the lot under Mrs. Kah, who was the actual perpetrator of the fraud, and under Thompson who had knowledge of it at the time he purchased the lot from her. The defendant has no other paper title to the lot except that which it derived under and through Mrs. Kah, who concealed and destroyed the will of her father in order that she might inherit his property as his heir-at-law. The fact that administration was taken out on Bond’s estate in ignorance of 'the fraudulent concealment and destruction of his will, and the decree obtained by Thompson, who had knowledge of the existence of the will at the time, has no legal significance or effect whatever as to the rights of the devisee of Bond, under his will, even if the grant of administration by the ordinary on Bond’s estate was not void. The devisee of Bond, under his will, was not a party to that proceeding, and is not bound by it, and none of the parties pretend to have derived their title to the lot under any judicial sale or order of any court. The title of the defendant is derived from Mrs. Kah, and she had none to convey. If the plaintiff had been an infant at the time of the commencement of the defendant’s prescriptive title, it would hardly be contended, we suppose, that the prescription would *379have run against him. Why not? Because he would have been excepted from the operation of the statute. Just so in this case, the prescription did not run in favor of the defendant as against the plaintiff, who is the other party, because of the fraud of Mrs. Kali in the destruction and concealment of the testator’s will, which fraudulent act debarred and deterred him from his action until the fraud was discovered. The defendant cannot claim a prescriptive right to the lot except by the terms of the statute which confers that right. The question in this case, is not whether the defendant has had possession of the' lot for seven years under written evidence of title and a bona fide claim of right, but the question is whether the defendant can claim a prescriptive title to the lot in dispute under the statute as against the plaintiff, who was debarred and deterred by fraud from instituting his action against the defendant to recover the possession of the lot until the fraud was discovered-by him. The. plaintiff being excepted from the operation of the statute under which the defendant claims its prescriptive title to the lot, therefore, no prescription ran in its favor as against the plaintiff until the discovery of the fraud by him. The defendant cannot claim the benefit of the statute of prescription for its protection, when ' that same statute expressly declares that it does not run incases of fraud debarring of deterring the other party from his action until the fraud is discovered. The plaintiff in this case is the other party, and no prescription ran against him in favor of the defendant as to the possession of the premises in dispute until the discovery of the fraud. The defendant cannot claim a title by prescription under the statute, 'and at the same time repudiate that part of the same statute which declares in express terms, that prescription does not run in its favor, on the statement of facts disclosed by the record in this case. I am, therefore, of the opinion that the judgment of the court below should be reversed.