tinuing trusts which are alone cognizable in a court of equity; 1 and trust can work a forfeiture of the legal estate of the trustee; it has been held that a fine or other alienation by cestui que trust for life does not work a forfeiture of his life estate. Sanders on Uses, 201. In the case of Letheuillier v. Tracy, 3 Atk. 729, HARDWICKE, LORD CHANCELLOR, said: "I will suppose, for argument's sake, that Mrs. Tracy had levied a fine sur concessit of her estate for life; yet as it is a trust estate, and there are limitations to trustees to preserve contingent remainders, I am of opinion that it does not work a forfeiture of her estate for life, because it cannot at all hurt or affect the subsequent remainders, as there are trustees under the will to preserve them, and therefore such a fine would in equity operate at most as a grant only of such interest as she had a power to grant." "A court of equity will never construe such a fine to work a wrong, but it operates only on the trust to perserve the contingent remainders, and not on the legal estate; for LORD TALBOT, in the case of Hoskins and Hoskins, and myself, in a cause that came before me afterwards, were of opinion that a person so intrusted levying a fine creates no wrong, but operates so as to grant all the conusor had a power to grant." The rule that trust and fraud are not within the statute of limitations is subject to this modification, that if the trust is constituted by the act of the parties, the possession of the the trustee is the possession of the cestui que trust, and no length of such possession will bar; but if a trust is constituted by the fraud of one of the parties, or arises from a decree of a court of equity, or the like, the possession of the trustee becomes adverse, and the statute will run from the time the fraud is discovered. Thompson v. Blair, 3 Murph. (N. C.) 583; Van Rhyn v. Vincent, 1 McCord (S. C.) Ch. 314. An executor entering on lands of the estate of his testator, and occupying them, is to be considered as holding them in trust for the heirs or devisees, unless he proves that he held adversely with notice to the heirs or devisees; in which case the proof lies on him to establish the claim at law, on an issue directed. Ramsay v. Deas, 2 Desau. (S. C.) 233. The statute is not allowed to run in favor of a man who was employed to act as agent, but purchased for himself. He is considered as a trustee, and his employer shall be entitled to the benefit of the purchase. Hutchinson v. Hutchinson, 4 Desau. (S. C.) 77. In the case of Bell v. Levers, 3 Yeates (Penn.), 26, SHIPPEN, C. J., in his charge to the jury, said: "As to the survey said to have been made by John Sheely for his own use in 1772, there is abundant ground to believe that it was not then made, and that it was improperly foisted into the office. He knew that he had made the survey for Levers, and at his expense; and as he could gain no title by his villany and breach of trust, so neither could he communicate any to Towers, by his convey. ance of the 19th May, 1775." In the case of Starr v. Starr, 2 Ohio, 321, the court said: "That this trust was not formerly declared or expressed between the parties, is no reason why it cannot exist. The law is not to be evaded by contrivances of this nature. A trust tacitly created is more difficult to reach than one that is expressed; but where it is ascertained the same consequence is attached to it." The general rule is, that after a sale of land, and before a conveyance of the legal title, the vendor is the trustee of the vendee, and the statute will have no operation. But where the vendor disavows the trust, and after having delivered possession to the vendee makes a lease to a third person in opposition to the title of the vendee, and the lessee enters and holds possession, the jury may presume a disseisin; and if the vendee suffers twenty-one years to elapse without prosecuting his claim, it will be barred by the act of limitations. Pipher v. Lodge, 4 S. & R. (Penn.) 310. But to prevent length of time from barring a claim, on the ground that the possession of the defendant was fiduciary, such possession must have been fiduciary as to the plaintiff or those under whom he claims: its being fiduciary as to any other person is not sufficient. Spotwood v. Dandridge, 4 Hen. & M. (Va.) 139. 1 Hayward v. Gunn, 82 Ill. 385; Par trusts which arise from an implication of law, or constructive trusts, tridge v. Wells, 30 N. J. Eq. 176; Prewett v. Buckingham, 28 Miss. 92; Tinnen v. Mebane, 10 Tex. 246; Paff v. Kinney, 1 Bradf. (N. Y. Surr. ) 1; Cooke v. McGinniss, M. & Y. (Tenn.) 361; Carter v. Bennett, 6 Fla. 214; Presley v. Davis, 7 Rich. (S. C.) Eq. 105; Maury v. Mason, 8 Port. (Ala.) 211; Zacharias v. Zacharias, 23 Penn. St. 452; Kutz's Appeal, 40 Penn. St. 90; Fox v. Cash, 11 id. 207; Heckert's Appeal, 24 id. 482; Kane v. Bloodgood, 7 Johns. (N. Y.) Ch. 90; Thomas v. Brinsfield, 7 Ga. 154; Finney v. Cochran, 1 W. & S. (Penn.) 112; Raymond v. Simonson, 4 Blackf. (Ind.) 77; White v. White, 1.Md. Ch. 53; Johnson v. Smith, 27 Mo. 591; Lexington, &c. R. R. Co. v. Bridges, 7 B. Mon. (Ky.) 566; McDonald v. Sims, 3 Ga. 383. The principle that the statute will not protect trustees applies only to express or technical trusts. Farnum v. Brooks, 9 Pick. (Mass.) 212; Hayman v. Keally, 3 Cranch (U. S. C. C.), 325; Bank v. Beverley, 1 How. (U. S.) 136; Pugh v. Bell, 1 J. J. Mar. (Ky.) 399; Harris v. King, 16 Ark. 122. In Kutz's Appeal, 40 Penn. St. 90, it was held that where money is held in trust, and therefore not recoverable at law but only in equity, the statute will not run. In Murray v. Coster, 5 Johns. (N. Y.) Ch. 522, the defendant received goods consigned to him on his own account and the account of the plaintiff, who paid one-third of the price, and was to receive one-third of the proceeds; and the defendant, having sold the goods, refused to account to the plaintiff for his share, and set up the statute to bar the claim. The court held that this was not a dealing between merchant and merchant, within the exception in the statute, but that the defendant was the factor of the plaintiff, and his liability a trust within the statute. See also White v. Leavitt, 20 Tex. 703. In Hutchinson v. Hutchinson, 4 Desan. (S. C.) Ch. 77, where an agent for the purchase of land took a title in his own name for the benefit of the principal, it was held that the statute of limitations did not run against the principal's claim to the land. In Van Rhyn v. Vincent, 4 McCord (S. C.), 310, A. sent abroad goods by B., who having died, the goods were disposed of by an agent, and the proceeds were transmitted to C., who, it seems, had no previous connection with A., and it was held that C. was not trustee for A., so as to relieve A.'s demand against him from the statute of limitations. But in McDonald v. May, 1 Rich. (S. C.) Ch. 91, where a person purchased land at a sheriff's sale under an agreement to hold the property for the benefit of the debtor, it was held that a technical trust was thereby created upon which the statute did not run. But it seems that a purchase under such an agreement, the debtor to remain in possession and refund the money at an indefinite time, does not create a continuing trust which bars the statute. Hughes v. Hughes, Cheves (S. C.) 33. In Sayles v. Tibbetts, 5 R. I. 79, an accommodation indorser for a firm in failing circumstances received a mortgage, with power of sale of certain of their property, to secure him as such indorser, and a day or two afterwards accepted, with others, as trustee, an assignment by the firm of all their property, including that mortgaged to him, for the benefit of their creditors, and two years afterwards sold the mortgaged property under his power, but rendered or exhibited to his co-assignees no account of the proceeds of sale, or of his application of the same. It was held, upon a bill filed for an account of the balance of such proceeds against his administrator, by one entitled thereto, under an assignment of such balance executed by his surviving co-assignees, that, as the mortgagee and trustee was a purely equitable trustee of such balance by virtue of an express trust, the statute of limitations did not run against his accountability, thus fully sustaining the rule stated in the text. Where a sale of an infant's property was made by a master under a decree by which he was directed to sell, and apply the interest, and as much as might be necessary of the principal, of the proceeds, to the support of the infant, it was held that he was a trustee, and that the statute did not run against a suit, by the infant, for an are not within the rule, but are subject to the operation of the statute,1 account, until he had denied his liability. Houseal v. Gibbes, 1 Bailey (S. C.) Ch. 482. So where a person gave to his children, by deed, property, real and personal, to be enjoyed by them after his death, himself retaining a life estate, it was held that he was a trustee for the children, and could not set up the statute of limitations against them, in consequence of his possession. Dawson v. Dawson, Rice (S. C.) Ch. 243. In Armstrong v. Campbell, 3 Yerg. (Tenn.) 201, A. being the owner of land warrants, he and B. entered into an agreement and covenants with each other, by which B. was to find the land, and was authorized to sell and convey the same, and to receive to his own use one-third of the purchasemoney, or other consideration received for the same, and he convenanted to pay, deliver, and transfer the other two-thirds to A., and it was held that this transaction constituted B. a trustee in relation to the interest of A. by express contract, and that, though there were concurrent remedies upon the contract at law and in equity, it was not within the statute. 1 Edwards v. University, 1 D. & B. (N. C.) Eq. 325; Walker v. Walker, 16 S. & R. (Penn.) 379; Buchan v. James, Speers (S. C.) Ch. 375. "By the whole current of modern authorities," says HINMAN, C. J., in Wilmerding v. Russ, 33 Conn. 77, "implied trusts are within the statute, and the statute begins to run from the time the wrong was committed, by which the person becomes chargeable as trustee by implication." Kane v. Bloodgood, ante; Robinson v. Hook 4 Mas. (U. S.) 152. In Swindersine v. Miscally, 1 Bailey (S. C.) Ch. 304, this rule was applied in a case where an administrator became a purchaser at his own sale as administrator, for a fair price, and afterwards mortgaged the property to secure his private debts. The court held that the mortgagee, being a trustee by implication only, might avail himself of the statute. So in Haynie v. Hall, 5 Humph. (Tenn.) 290, where a father received a legacy for his minor child, it was held that by operation of law he became a trustee in respect thereto, and might avail himself of the statute. In Baubien v. Baubien, 23 How. (U. S.) 190, the court says: "In cases of an implied trust to he raised by evidence, equity obeys the statute." McDowell v. Goldsmith, 6 Md. 319; Lloyd v. Currin, 3 Humph. (Tenn.) 462; Murdock v. Hughes, 15 Miss. 219; Armstrong . Campbell, 3 Yerg. (Tenn.) 201; Harlow v. Dehon, 111 Mass. 195; Manson v. Titsworth, 18 B. Mon. (Ky.) 582; Haynie v. Hall, 5 Humph. (Tenn.) 296; Sheppards v. Turpin, 3 Gratt. (Va.) 373; Cuyler v. Brodt, 2 Cai. Cas. (N. Y.) 326. In Lafferty v. Turnley, 3 Sneed (Tenn.), 157, it was held that where there is a concurrent remedy at law the equitable bar from lapse of time is generally applied by analogy to the statute of limitations, but where, as in cases of express trust, the matter is alone cognizable in equity, the bar may be applied according to the merits of the case. The time generally fixed for enforcement of trust claims has been twenty years, but in some cases a shorter period is sufficient, and in others a longer one will not protect the trustee. In Phillips v. Holman, 26 Tex. 276, it was held that a contract wherein P. assigned and transferred to H. certain stock certificates, in trust to be disposed of according to H.'s best judgment, P. to receive thereupon the original cost and half the profits realized, with no stated time for performance and account, did not create that kind of "technical and continuing' trust which cannot be affected by the statute of limitations, and it devolved on H. to perform the obligation and account within a reasonable time. Lapse of time does not operate as a bar of express trusts; especially where the trustee and those claiming under him have not asserted an adverse claim above two years, although the cestui que trust has neglected to claim the benefit of the trust for nearly forty years before. Pinson v. Ivey, 1 Yerg. (Tenn.) 296. In Alabama, it is held that the lapse of twenty years without any acknowledgment of the existence of the trust will constitute a presumptive bar to a proceeding of a legatee or distributee for a settlement of the estate; but that time is unless there has been a fraudulent concealment of the cause of action and the statute is as complete a bar in equity as at law. Courts of equity have always refused to assist a person who has slept upon his rights and shows no excuse for his laches in asserting them, and this is so, independent of any statute of limitations. Laches and neglect are always discountenanced, and always have been from the very beginning of equity jurisdiction.2 This doctrine has been repeatedly recognized and acted on. In Hume v. Beal, the court, in dismissing, because of unexplained delay in suing, a bill by cestui que trust against a trustee under a deed, observed that it was not important to determine whether he was the trustee of a mere dry, legal estate, or whether his duties and responsibilities extended further. 17 Wall. 348.4 When the bill shows upon its face that the plaintiff, by reason of lapse of time and of his own laches, is not entitled to relief, and the objection may be taken by demurrer. Therefore it may be said that a trust, in order to be exempt from the operation of the statute, must be direct or express, and of a nature not cognizable at law, but solely in equity. If this limitation was not imposed, to be computed from the time when a settlement could first have been compelled, and not from the date of the trust, and that the circumstance that the statute of limitations runs in favor of the sureties of an executor or administrator does not bring him within the statute, as there is no statutory limitation to a trust. Greenlees v. Greenlees, 62 Ala. 336. But where there is a violation of the terms of a trust, a right of action accrues at once, and the statute begins to run thereon from that time. Wilson r. Greene, 49 Iowa, 251. 1 Spediel v. Henrici, 120 U. S. 377. In Loring v. Palmer, 118 U. S. 321, it was held that laches could not be set up to defeat an equitable action where the delay was induced by the fraud on the part of the person setting it up. 2 Smith v. Clay, 3 Bro. Ch. 640. Piatt v. Vattier, 9 Pet. (U. S.) 405; McKnight v. Taylor, 1 How. (U. S.) 161; Bowman v. Wathen, 1 How. (U. S.) 189; Wagner v. Baird, 7 How. (U. S.) 234; Badger v. Badger, 2 Wall. (U. S.) 87; Hume v. Beale, 17 Wall. (U. S.) 336; Marsh v. Whitmore, 21 Wall. (U. S.) 178; Sullivan v. Portland & K. R. R. Co., 94 U. S. 806; Godden v. Kimmell, 99 U. S. 201. 4 See also Bright v. Legerton, 29 Beav. 60, and 2 De Gex, F. & J. 606. 5 Maxwell v. Kennedy, 8 How. (U. S.) 210; National Bank v. Carpenter, 101 U. S. 567; Lansdale v. Smith, 106 U. S. 391. 6 Clay v. Clay, 7 Bush (Ky.), 95; Hay. ward v. Gunn, ante; McClane v. Shepherd, 21 N. J. Eq. 76; Partridge v. Wall, ante. In Harlow v. Dehon, 111 Mass. 195, an instrument under seal, signed by P. and W., reciting that P. has received from the executors of the estate of W.'s father $2,000, and covenanting that until P. invests the sum as a special trust fund he will pay interest thereon to W.; and when the sum is so invested, pay W. the income thereof, and, on the death of W., pay over the same, or the proceeds thereof, to W.'s administrator; and, in case of P.'s death before W., P.'s executors are to execute the same trust, was construed to constitute, if a trust at all, at most a constructive trust, and to be barred by the lapse of six years from the appointment of W.'s administrator. Galvin's Estate, Myrick's Prob. (Cal.) 82. In Maine, under the statute, it has been held that a bill against heirs for a specific performance of a contract to convey land does not apply to a trust evi and the statute was not permitted to operate where an implied trust exists, the exceptions would be endless, as, in fact, every case of deposit or bailment in a certain sense creates a trust, and the instances in which an implied trust may be raised are almost innumerable; and there is much wisdom in the rule that restricts the saving operation of the statute to those express and continuing trusts which are not cognizable at law, and where the plaintiff has no legal title, the estate being vested in the trustee.1 Strictly speaking, in their technical 66 denced in writing. Frost v. Frost, 63 Me. 399. In Clay v. Clay, ante, the court says: In a case of express trust, when there is such a confidence between the parties that no action of law will lie, and a court of equity alone has jurisdiction, the statute of limitations will not constitute a bar." In McGuire v. Linneus, 74 Me. 344, it was held that where a town holds money belonging to an individual, the statute does not begin to run against the cestui que trust until it has announced its intention to hold it adversely. In Hamer v. Sidway, 124 N. Y. 538, reversing 57 Hun, 229, it appeared that S., the defendant's testator, agreed with W., his nephew, the plaintiff's assignor, that if he would refrain from drinking liquor, using tobacco, swearing, and playing cards or billiards for money, until he should become twenty-one years of age, he would pay him $5,000. W. performed his part of the agreement; he became of age in 1875. Soon thereafter he wrote to S. advising him of such performance, stating that the sum specified was due him, and asking payment. S. replied admitting the agreement and the performance, and stating that he had the money in bank, set apart, which he proposed to hold for W. until the latter was capable of taking care of it. It was thereupon agreed between the parties that the money should remain in the hands of S. on interest. In an action upon the agreement, held, that it was founded upon a good consideration, and was valid and enforceable. It is not essential in order to make out a good consideration for a promise to show that the promisor was benefited or the promisee injured; a waiver on the part of the latter of a legal right is sufficient. S. died in 1887 without having paid any portion of the sum agreed upon. It was held that under the agreement made in 1875, the relation of the parties thereafter was not that of debtor and creditor, but of trustee and cestui que trust; and that, therefore, the claim was not barred by the statute of limitations. It did not appear upon the face of the complaint that the original agreement was not in writing, and so prohibited by the statute of frauds, because not to be performed within a year. It was held that as no such defence was set up in the answer, it was not available; and that the statements of S., subsequent to the date of final performance on the part of the promisee, was a waiver of such defence. Mallory v. Gillett, 21 N. Y. 412; Belknap v. Bender, 75 id. 446; Berry v. Brown, 107 id. 659; Beaumont v. Reeve, Shirley's L. C. 6; Porterfield v. Butler, 47 Miss. 165; Duvoll v. Wilson, 9 Barb. 487; In re Wilber v. Jewett, 116 id. 40, distinguished. 1 Lockey v. Lockey, Prec. Ch. 518; Lawly v. Lawly, 9 Mod. 32; Cholmondeley v. Clinton, 1 Jac. & W. 171; Blount v. Robeson, 3 Jones (N. C.) Eq. 14; Tucker v. Tucker, 1 McCord (S. C.) Ch. 176; Burham v. James, 1 Speers (S. C.) Eq. 375; Farnham v. Brooks, 9 Pick. (Mass.) 212; Finney v. Cockran, 1 W. & S. (Penn.) 118; Johnston v. Humphries, 14 S. & R. (Penn.) 394; Walker v. Walker, 16 id. 379; Culbert v. Fleming, 5 Leg. & Ins. Rep. 19; Fox v. Lyon, 33 Penn. St. 474; Clark v. Trindle, 52 id. 492; Best v. Campbell, 62 id. 476; Mussey v. Mussey, 2 Hill (S. C.) Eq. 496; McDowell v. Goldsmith, 6 Md. 319; Sayles v. Tibbetts, 5 R. I. 79; Marsh v. Oliver, 1 N. J. Eq. 209; Martin v. Bank, 31 Ala. 115. |