Keeton's Heirs v. Keeton's Administrator

Scott, Judge,

delivered the opinion of the court.

1. It cannot have escaped the observation of those whose attention has been called to the subject, that the application of the statute of limitations, in courts of equity, to matters of trust, is made difficult from the contrariety ■ of opinion which prevails in relation to it. Whilst all admit that an express or direct trust is not subject to be barred by the statute, a difficulty is experienced in determining what trusts fall under the denomination of express or direct trusts, as well as in ascertaining the period of limitations to be applied after the character of the trust is determined.

All seem to admit that, when courts of laAV and equity have a concurrent jurisdiction over a subject, and an action in relation to it is barred at law, a defendant cannot be deprived of the protection of the statute, by converting him into a trustee and suing him in a court of equity. In such cases, the statute is equally available in both courts as a defence.

In the conflict of views, on the question as to what trusts are excluded from the operation of the statute of limitations, we may safely adopt the conclusion of Chancellor Kent, in the case of Kane v. Bloodgood, ( 7 Johns. Ch. Rep. 110 ,) who, after an able review of the cases on the subject, expresses the opinion that the trusts intended by the courts of equity not to be reached or affected by the statute of limitations, are those technical and continuing trusts which are not at all cognizable at law, but fall within the proper, peculiar and exclusive jurisdiction of courts of equity.

*539 He says the trust must be a continuing one. There are cases, which maintain that a strict trustee must take care of the interest of his cestui que trust, and he is not permitted to do any thing adverse to it; that acts which, if done by a stranger, would be adverse, are not so in a trustee, from its being his duty to abstain from them ; that it is at the option of the cestui que trust, to treat such acts as adverse or not.

But Chancellor Kent, in the case to which reference has been made, maintains that, if the trustee deny the right of his cestui que trust and assume absolute ownership, the remedy of the latter is confined to the period allowed for the recovery of legal estates at law; that so long as the trust is a subsisting one, and admitted by the acts and declarations of the parties, the statute does not affect it; but when such transactions take place between trustee and cestui que trust as would, in case of tenants in common, amount to an ouster of one of them by the other, a court of equity would not consider length of time of no consequence. There is no good reason why the statute of limitations should not apply to such a case, as well as to cases of constructive trusts, to cases of detected fraud, and to all other cases in which the statute is assumed as a rule of decision. In the case of Boone v. Chiles, ( 10 Pet. 223 ,) the court says that an express voluntary trust cannot be enforced, after its known disavowal for such time and under such circumstances as would make an adverse possession a bar ; that time does not bar a direct trust, as between a trustee and cestui que trust, till it is disavowed. In the case of Robinson v. Hook, ( 4 Mason, 151 ,) Judge Story says : “When it is said that the statute of limitations does not apply to cases of trust, it is material to consider the sense in which that proposition is to be understood. In respect to trusts, which are strictly such and recognized and enforced in courts of equity only, such as express trusts created by the parties for particular purposes, the doctrine is in general true. So long as the relation of trustee and cestui que trust is admitted, in the case of express trusts, to exist between the parties, the very duties to be per *540 formed by the trustee prohibit him in general from setting up such bar. Acts, which, clone by a stranger, might be deemed adverse, when doné by a trustee, admit of a very different interpretation. But even in cases of express trusts, if an open, public, adverse claim is set up by the trustee against his cestui que trust, and the trust itself is denied as any longer subsisting, there is much reason to hold that the bar ought to be admitted to arise from such period.” Afterwards, in the case of Baker against Whiting, ( 3 Sum. 486 ,) the same Judge says : “ The doctrine that no time is a bar to a trust, clearly established, is regularly true, when it is received with the proper accompanying limitations ; that no circumstances exist to raise a presumption from lapse of time of an extinguishment of the trust, and no open denial or repudiation of the trust is brought home to the knowledge of the parties in interest, which requires them to act, as upon an asserted adverse title.” In the case of Pipher v. Lodge, (4 S. & R. 315,) it was held that, though as a general rule, the vendor, before conveyance, is a trustee for the vendee, and while his possession can reasonably be reconciled with the existence of the trust, the statute of limitations has no operation ; yet, if he disavows the trust, the vendee having notice will be barred by the statute of limitations of twenty-one years, such acts being evidence of a dis-seizin. It was thought analogous to the law of tenants in common. One tenant in common, who is in possession of ,the whole, while he does not deny the right of his co-tenant shall be presumed to hold as tenant in common, and the act of limitation will not attach; but when he denies the title of his partner, claims the whole exclusively, and will not suffer him to enter, the presumption of an ouster arises, and the statute takes effect. To the same effect is the case of Walker v. Walker, (16 S. & R. 384.) After a review of the cases on the subject, Angel, in his work on Limitations, 513, says: “Even in cases of direct and technical trusts, if the trustee should deny the right of his cestui que trust, and assume absolute ownership, the latter could not be allowed a remedy *541 beyond tbe period limited for tbe recovery of legal estates at law.”

In cases of resulting, implied and constructive trusts, when a party is to be constituted a trustee by a decree of a court of equity, founded on fraud, it is well settled as a rule of equity, that the statute of limitations and presumption from lapse of time will operate. With regard to the statute of limitations, it will run from the time that the facts are brought borne to the knowledge of the party. He then has a cause of action, and there is no reason for placing him in any better situation than any other suitor. Having a cause and being fully aware of it, there is nothing to prevent the statute from running against him. The statute to be applied in such cases is determined by.the nature of the claim. Lord Redesdale, in the case of Bond v. Hopkins, (1 Sch. & Lef. 429,) says: “ If the equitable title be not sued on within the time within which a legal title of the same nature ought to be sued upon, to prevent the bar created by the statute, the court, acting by analogy to the statute, will not relieve. If the party be guilty of such laches in prosecuting bis equitable title, as would bar him, if bis title were solely at law, be shall be barred in equity. As in suits relating to real estate, courts of equity adopt the limitation of twenty years, that being the period beyond which a writ of entry is barred, so in those relating to personalty, they are governed by the limitation prescribed for personal actions.” Angel, 511, says : “ It is perfectly clear that, whenever a person takes possession of property in bis own name, and is after-wards, by matter of evidence or by construction of law, changed into a trustee, lapse of time may be pleaded in bar. This possession entitles him at least to the same protection as that of a. direct trustee, who, to the plaintiff’s knowledge, disavows the trust and bolds adversely.” (Miller v. Mitchell, 1 Bai. S. C. R. 437. Buchan v. James’ Adm’r, Speer’s Cb. Rep. (S. C.) 375.)

From the foregoing principles relating to the application of tbe statute of limitations in equity for the enforcement of *542 trusts, which we have endeavored to show are established as law, it will follow that, in whatever light this suit is viewed, whether as one seeking to enforce an express or direct trust, or a constructive one, resulting from the proof of fraud in the person sought to be made a trustee, it is evident that the statute of limitation applies.

In this case, there is no evidence wanting to establish the fact that a great many years ago, William Keeton asserted an adverse title to the slaves in controversy. His assertion was open and notorious, accompanied with the possession of the property and claim of ownership. The fact is stated in the bill that a short time after the sale, Keeton held the slaves as his own property, and that they remained under his control until his death, and are now in the hands of his administrator. The sale took place in March, 1830, and this bill was filed in March, 1848.

2. The answer sets up the statute of limitations as a defence to the bill, and there is no charge in the bill of any coverture or infancy or any other matter which avoids it. The exceptions to the statute, not being in the pleadings, no evidence could be received in relation to them ; for the evidence, to be admissible, must be founded on some allegation in the pleadings. The doctrine is now clearly established that, if the statute of limitations is relied on as a bar, the plaintiff, if he would avoid it by any exception in the statute, must explicitly allege it in his bill, or, instead of replying, he must, according to the modern practice, amend his bill, if it contains no suitable allegation to meet the bar. (Pratt v. Vattier, 9 Pet. 416 .)

3. But we will consider the cause as though the facts in avoidance of the bar of the statute were in the pleadings. If we are correct in what has been said before, this cause of action accrued between the years 1825 and 1835; consequently, under the eleventh section of the third article of the act concerning limitations, in the code of 1835, the limitation contained in the code of 1825 is that by which it is governed.

By the act of 1825, one entitled to bring any personal *543 action, if out of the United States, beyond seas, an infant or feme covert at the time the cause of action accrued, is allowed to bring bis or ber action witbin sucb time as sucb action is before limited after their respective disabilities are removed. It is now settled that the term “ beyond seas,” in the act of 1825, does not mean out of the limits of the state ; consequently, if a person is absent from this state in one of the United States, he is not witbin the exception of the statute. (Marvin v. Bates, 13 Mo. Rep. 217 . Fackler v. Fackler, 14 Mo. Rep. 431 .)

4. Clarissa, the youngest child, was an infant at the time-the cause of action accrued. She was born in November, 1822, and was of age in November, 1843. She was married in 1837" or ’38. Now ber marriage did not merge ber disability of infancy, nor did it prolong ber right to sue, as it did not exist at-ibe time ber cause of action accrued. It was a cumulative disability, and therefore not allowed. By the statute, she bad' five years witbin which to bring ber action, after the disability of infancy was removed. Her husband’s failure to sue, although be might have brought an action, did not affect ber right-to sue witbin the time allowed by the exception. (Robertson v. Wardeman, 2 Hill (S. C.) Rep. 324. Angel on Limitations, 206-7-8-9. Butler v. Howe, 13 Maine, 400. Wood v. Aiken, 1 Paige Chan. 616.) According to this, the statute bad not run against Clarissa, at the time this suit was commenced in March, 1848. The five years would have been out-in November following, and she would have been barred. Her two elder full sisters would be barred, as the five years would' have expired as to them, from the removal of their disability of infancy, it being less than a year witbin the time of expiring as to a younger sister. It matters not when they were married, as they were single when the cause of action accrued, as we have seen that marriage, occurring after the cause of action has accrued, does not prolong the protection of the statute. As to the two sisters by the first 'wife, it does not appear when they were born, or when they were married. If they were both under age and married at the time of the accruing of the action, *544 then both disabilities must be removed before the statute will run against them. If they .were adults and married, at the time of the accruing of the action, their coverture, so long as it continues, will prevent the running of the statute. Of course, the same marriage or coverture is meant, as existed at the time the cause of action accrued.

5. It thus appears that some of the plaintiffs are barred and some are not. What effect will this have ? If it be true that, in the application of the statute of limitations, courts of equity are governed by analogy to its application in suits at law, then it would seem that, as at law, in all actions jointly instituted, unless all the plaintiffs are under disability, the operation of the statute is not arrested, a disability existing on the part of one of the plaintiffs will not prevent the running of the statute against all of them. The application of this rule- in equity would seem to be less harsh than at law; for, in equity proceedings, if one plaintiff will not join, he may'be made a defendant. In the case of Riden and others v. Frion, (3 Mur. (N. C.) Rep.) in an action of detinue for slaves descended to three heirs, it was held that the infancy of one of them did not prevent the running of the statute. The other heirs not being entitled to the protection of the statute, the suit was barred as to them, and being barred as to some, it was barred as to all. The case of Perry v. Jackson, (4 Term Rep. 516,) was on a bill of exchange by several plaintiffs. It was held that, though one of the parties was not barred by reason of his disability to sue, yet one being barred, all were barred. In Marsteller v. McLean, (7 Cr. 156,) which was an action for mesne profits, the same doctrine was maintained. In Turner v. Debell, (2 Mar. (Ky.) Rep. 884,) suit was brought by two executors, and it was held that the disability of one of them did not prevent the statute from running.

The same rule prevails in real actions, if the tenants unite in a joint demise. In such case, the disability of one of the joint tenants does not aid the others. If one is barred, all are barred. By making a separate demise, and suing for his own *545 interest, be wbo bas been under a disability may recover bis share. But if be sues jointly with others wbo are barred by the statute, be will not be protected. (Roe v. Rowlston, 2 Taun. 445.)

6. Then there are two objections to this suit. First, that the statute of limitations is set up in the answer as a defence, and there is nothing in the bill which avoids the effect of that bar; second, courts of equity, applying the statute of limitations, enforce it as it is enforced at law, and as at law a joint action being barred as to some of the plaintiffs, is barred as to all, some of the plaintiffs in this suit being excluded from the protection of the statute, all are excluded. As these objections may be obviated by amendments, and as a dismissal of the bill might enable the party to plead the statute of limitations against Clarissa, if not against others, the decree will be reversed and the cause remanded.

7. This course will render necessary an expression of our opinion as to the conduct of William Keeton in relation to the slaves entrusted to him as administrator. The facts established by the evidence abundantly show that the sale made by him was a feigned one ; that he was guilty of a fraud, and converted his intestate’s estate to his own use. He was poor and thriftless, unable to pay his debts before he became administrator. Suddenly he becomes rich and is, to all appearance, a man of wealth. This is not accounted for in any way. It does not appear that he was enriched from any other source, or by any other means. His apparent prosperity can only be ascribed to the possession of John Keeton’s estate. Most if not all the witnesses who were present at the sale, inform us that William Keeton was the purchaser of most of the slaves. The bill of sale to Elizabeth Keeton seems to have been an after thought. It was dated in April, 1882, more than two years after the pretended sale, and within a few days thereafter, a bill of sale is executed by Elizabeth Keeton to William Keeton, reconveying the slaves. The bill of sale to E. Keeton is made to recite the falsehood that the slaves were delivered to her at the adminis *546 tration sale, at which it is pretended she bought them, when all the evidence shows that William Keeton always retained possession of them. It is recited therein, that it was made in satisfaction of alleged advancements of William Keeton to John Keeton’s estate, amounting to the sum of $2,691. Now the order of court under which the sale took place, recited that the debts against the estate, for the payment of which the sale was made, only amounted to the sum of one thousand dollars and upwards. If William Keeton had made advancements to the estate, why were they not passed upon and allowed before the sale and their payment provided for ? The sale was also made to enable the administrator to make distribution of the slaves among the heirs. It would seem then, that this was a winding up of the estate. Is it not singular, then, that it should not appear until after this step that the estate was indebted to him for advancements, and that too, in an instrument signed by a confiding sister, who unfortunately found out too late that her confidence had been betrayed?- The administration sale of the slaves was without notice of its terms. Against the usual course in such sales, it was made for cash, causing a diminished price for the slaves, and producing dissatisfaction among those attending it.

It is unnecessary to pursue this subject farther. Every circumstance is against the fair dealing of William Keeton, and there is nothing in the record to relieve his administration of John Keeton’s estate from the imputation of fraud and mismanagement under which it rests and must rest.

The plaintiffs will have leave to amend, and the decree is reversed and remanded, with the concurrence of the other judges.