FORTUNE v. ENGLISH.

[226 IL 262, 80 N. E. 781.]

LIMITATION OF ACTIONS-Concealment, Silence is not.When the original basis of the action is not fraud, there must be something of an affirmative character designed to prevent, and which does prevent, a discovery of the cause of action. Mere silence by a person liable to an action is not concealment of the cause of action, but such concealment must consist of affirmative acts or representations. (p. 255.)

LIMITATION OF ACTIONS-Pleading Fraud in Concealing Cause of Action. In a replication to the plea of the statute of limitations, it is necessary that the facts constituting the fraud be clearly stated. The replication must set out facts and circumstances which amount, in law, to a fraudulent concealment by the defendant of the cause of action, and, failing so to do, must be adjudged bad on demurrer. (p. 256.)

LIMITATION OF ACTIONS-Fraud in Concealing Cause of Action, When not Shown.-If in an action against an attorney at law to recover damages resulting from his negligence as such in examining a title and reporting it to be free from encumbrances, whereas it was subject to an encumbrance which has been enforced against the plaintiff by suit, the statute of limitations is pleaded, a replication averring that the plaintiff employed defendant, as attorney at law, to defend such suit, and that he, after such employment, represented to plaintiff, who was unlearned in the law, that defendant, well knowing that he had been guilty of the acts stated in the declaration and to prevent plaintiff from bringing an action against him within five years, represented that the property was free from encumbrances, and advised that such suit could be successfully defended, and plaintiff, relying on such advice, defended such suit, and not until it was decided against him did he become aware of the grievances alleged in his complaint, is not sufficient. It does not show that the defendant misrepresented any matter of fact, nor that he did not believe the advice given by him was incorrect when given. He was not obliged to notify plaintiff of the existence of a cause of action against himself, nor of the acts of negligence giving rise to such cause. (p. 256.)

Alexander Sullivan, Frank L. Kriete, H. T. Gilbert and Carroll C. Boggs, for the appellant.

Kraus, Alschuler & Holden, for the appellee.

265 CARTWRIGHT, J. This is an action on the case brought by appellant in the circuit court of Cook county to recover damages alleged to have resulted from negligence of the appellee in the performance of his duties as attorney at law under an employment 266 as such by the appellant. The declaration alleged, in substance, that the plaintiff having contracted to purchase from Emma A. Leahy certain real

estate in Cook county in fee simple and unencumbered for $22,000, employed the defendant, as an attorney at law, to examine the title to said real estate, and if it proved to be a good title in fee simple and unencumbered, to cause such title to be conveyed to plaintiff, but the defendant neglected his duty in that behalf, and on December 2, 1889, negligently and wrongfully caused and procured plaintiff to pay the purchase price for said real estate and accept a deed therefor when in fact the real estate was subject to encumbrances, secured by trust deed, amounting to $12,000; that the holders of the said encumbrances thereafter commenced foreclosure proceedings, and notwithstanding defendant exercised all due care and diligence in the defense thereof, he was compelled to pay the encumbrances, with interest, amounting to $16,522.70, and costs and expenses amounting to $5,600. There was much pleading which it is not necessary to state. The declaration finally consisted of original counts 1, 2, 3 and 4, amended additional counts 5, 6, 7 and 8, and additional counts 9 and 10. Demurrers were sustained to the amended additional counts 5, 6, 7 and 8, and plaintiff elected to stand by them. To the other counts pleas were filed of not guilty, the statute of limitations of five years and the statute of limitations of ten years. Replications to the pleas of the statute of limitations were filed and demurrers were sustained thereto, whereupon the plaintiff elected to abide by his replications and there was a final judgment for the defendant. Plaintiff appealed to the appellate court for the first district, and the branch of that court affirmed the judgment.

A decision as to the sufficiency of the amended fourth replication of the plaintiff to the second plea of the defendant to counts 1, 2, 3 and 4 of the declaration will be decisive of the case. That replication was intended to set up a fraudulent concealment of the cause of action by the defendant 267 under section 22 of chapter 83 of the Revised Statutes of 1874, concerning limitations, which is as follows: "If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterward." Under that section, if the defendant fraudulently concealed the cause of action alleged in the declaration from the knowledge of the plaintiff, and the plaintiff discovered the same

within five years before the action was commenced, the statute of limitations would not apply. To meet the requirement of the statute in a case like this, where the original basis of the action is not a fraud, there must be something of an affirmative character designed to prevent, and which does prevent, a discovery of the cause of action. Mere silence by a person liable to an action is not concealment of the cause of action, but such concealment must consist of affirmative acts or representations: Wood v. Williams, 142 Ill. 269, 34 Am. St. Rep. 79, 31 N. E. 681; Parmelee v. Price, 208 Ill. 544, 70 N. E. 725; 19 Am. & Eng. Ency. of Law, 2d ed., 253.

The facts averred in the replication under consideration are, that plaintiff was unlearned in the law and unable to determine for himself the matters in the declaration and replication mentioned; that defendant, for hire and reward, was employed by plaintiff to advise and direct him with respect to such matters; that plaintiff was and remained ignorant until December 9, 1899, of the committing by the defendant of the grievances in the declaration mentioned; that on September 11, 1893, within less than five years after the cause of action arose, the holders and owners of the promissory notes in the declaration mentioned instituted in the circuit court of Cook county a suit against the plaintiff and other persons to subject the real estate to sale for the payment of the amount due on said notes; that plaintiff retained and employed the defendant, for hire and reward, to 268 investigate said suit and the questions of law and fact connected therewith and bearing upon the rights and liabili- . ties of the plaintiff with respect to the promissory notes, trust deed and real estate, and to direct plaintiff as to the course to be pursued with respect to the same; that defendant, well knowing that he had been guilty of committing the grievances in the declaration mentioned and that a cause of action had arisen against him on account thereof and that plaintiff was ignorant thereof, and craftily and fraudulently intending to conceal from the plaintiff the committing of said grievances and to prevent plaintiff from bringing suit within five years after the committing of said grievances, falsely and maliciously represented to the plaintiff that the plaintiff was the owner in fee simple of the real estate free from all encumbrances and could successfully defend the suit and defeat the claims of the complainants therein, and that plaintiff, relying

upon the truth of said representations and acting under the direction and advice of the defendant, defended the suit until December 9, 1899, when it was finally decided adversely to him, until which time he was ignorant of the committing of the grievances in the declaration mentioned.

It is a general rule of pleading that the facts upon which the court is required to state the law shall be alleged (Gould's Pleading, c. 3, sec. 120; 1 Shinn's Pleading and Practice, sec. 475); and in a replication to a plea of the statute of limitations it is necessary that the facts constituting the fraud shall be clearly stated: Beatty v. Nickerson, 73 Ill. 605; 13 Ency. of Pl. & Pr. 246. The replication must set out facts and circumstances which amount, in law, to a fraudulent concealment by the defendant of the cause of action, and if it fails to set out such facts as in the law constitute such fraud it will be bad on demurrer. This replication contains no averment that the defendant concealed from the plaintiff any fact or did anything to prevent plaintiff from ascertaining any fact upon which the cause of action depended, either by affirmative act or any scheme or device to 269 prevent inquiry. If there was any fraudulent concealment it related to matter of law, and consisted in the representation that the real estate was not subject to the encumbrances and that plaintiff could successfully defend the foreclosure suit. Although all persons are presumed to know the law, it is undoubtedly true that where the relation of attorney and client exists a fraudulent concealment of the cause of action by the attorney may be accomplished by a misrepresentation of the state of law or the legal rules or principles applicable to the facts, knowingly made for the purpose of deceiving the client. While that relation requires a full disclosure by the attorney of all matters within the scope of his employment, it does not require him to volunteer information to his client that his client has a cause of action against him. The pleading is to be construed most strongly against the pleader, and the replication wholly fails to aver that the defendant knew the contrary to his representation to be the law. There is no distinct or clear averment that the opinion rendered by defendant as to the legal rights of the plaintiff was known by defendant to be false, and for aught that appears it may have been an incorrect opinion resulting from want of knowledge. The words "craftily," "fraudulently," "falsely" and "maliciously" are of no avail in the absence of averments of

facts to which they properly apply. The replication fails to show any misrepresentation of any character as to any fact, or any false or fraudulent misrepresentation as to the state of the law or the legal rights of the plaintiff arising out of the facts, and the court was therefore right in sustaining the demurrer.

The judgment of the appellate court is affirmed.

The Statute of Limitations may be prevented from running by a fraudulent concealment of the cause of action: Eising v. Andrews, 66 Conn. 58, 50 Am. St. Rep. 75; note to Snograss v. Branch Bank, 60 Am. Dec. 511. Compare, however, Pietsch v. Milbrath, 123 Wis. 647, 107 Am. St. Rep. 1017. But the mere ignorance of a person of his right to bring an action, or the mere silence of the person liable to the action, does not prevent the running of the statute: State v. Walters, 31 Ind. App. 77, 99 Am. St. Rep. 244; Davis v. Boyett, 120 Ga. 649, 102 Am. St. Rep. 118; note to Alabama etc. Ry. Co. v. Jones, 55 Am. St. Rep. 515.

A Party Relying on Misrepresentation or Concealment to take his case out of the operation of the statute of limitations must aver the facts constituting the fraud and the time of its discovery: Douglas v. Corry, 46 Ohio St. 349, 15 Am. St. Rep. 604; Wood v. Williams, 142 Ill. 269, 34 Am. St. Rep. 79.

ABBOTT v. BEEBE.

[226 Ill. 417, 80 N. E. 991.]

PARTITION SALE.-Inadequacy of Price is not, in itself, sufficient to set aside a partition sale, unless it is so grossly inadequate as to establish fraud. (p. 259.)

PARTITION SALE.-Courts will not refuse to confirm a partition sale, nor will they order a resale, on motion of an interested party, merely to protect him against the result of his own negligence, where he was under no disability to protect his rights at such sale. (p. 259.) PARTITION SALE-Disability of One of Several Cotenants not Available to the Others.-The fact that one of eighteen cotenants is of unsound mind will not enable the others to obtain an order of resale in partition on account of an advanced bid, where the bidders deposit in court for such insane person his share of the sum which would be realized were the advanced bid accepted. (pp. 259, 260.)

PARTITION SALE-Setting Aside for an Advance Bid.Though the chancellor has a broad discretion in approving or disapproving sales made by the master, yet his discretion is not an arbitrary one, but must be exercised in accordance with established principles of law. His order setting aside a sale on account of an advance bid may therefore be reversed. (p. 260.)

PARTITION SALE, Error in Vacating on Account of an Advance Bid.—Where two parcels of land sold respectively for three thousand five hundred and fifty dollars and five thousand one hundred dollars, an offer to guarantee, on a resale, a bid of four thou

Am. St. Rep., Vol. 117-17