Beaubien v. Beaubien

Mr, Justice NELSON delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of the United States for the district of the State of Michigan.

The bill was filed by the plaintiffs against the defendants, claiming to be tenants in common with them in a tract of land now lying in the city of Detroit, each party deriving title from a common ancestor, who made the settlement as early as the year 1745, under a concession from the French Government. The tract contained five arpens in front on Lake Erie, and eighty arpens back. The ancestor, John Baptiste Beaubien, died in 1793, having had the uninterrupted possession of the property from the time of the concession in 1745, leaving a widow and several children. Two of the sons, Antoine and Lambert, resided with their father at the time of his death, and continued in the possession and occupation with their mother till her death, in 1809.

In 1804, Antoine, one of the heirs in possession, applied to *206 the board of commissioners to adjust land claims, under the -act of Congress of 1804, to confirm his claim to the land; and which was confirmed accordingly, and a patent issued in 1812. Acts of Congress, 26th March, 1804; 3d March, 1805; 3d March, 1807.

Lambert, the other brother, continued in the joint occupation of the tract till his death, in 1815, and subsequently, in 1818, Antoine conveyed to the heirs of Lambert a moiety of the premises; and the present occupants and defendants are the descendants of the two brothers, or purchasers from them under this title.

The tract constitutes a portion of the city of Detroit, and is averred in the. bill to have been worth, at the time of the filing of it in 1855, from half a million to a million of dollars, exclusive of the improvements.

The case .was presented to the court below on demurrer to the bill, and on pleas by some of the defendants, as bona fide purchasers for valuable consideration, without notice.

The plaintiffs aver in the bill, in addition to the facts already stated, that they are-the descendants of the brothers and sisters of Antoine and Lambert, from whom the title of the defendants is derived, and that Antoine and Lambert and their descendants possessed and occupied the tract in subordination to the right and title of their-co-tenants, and that they were permitted to possess and occupy the same in confidence, that they so held the premises for the common benefit of all parties interested. They further aver, that they verily believed that the brothers, Antoine and Lambert, and their legal representatives, were acting in good faith in this respect, until about the year 1840 they discovered, after examination and inquiry into the facts and circumstances, that they intended to cheat and defraud them, and those under whom they claim, of their just rights in the premises.

The bill further states that Antoine, in his lifetime, and his son, who is one of the defendants, and the heirs of Lambert, have conveyed to divers individuals rights in the said tract; that, in some instance's, they made-donations without consideration ; in others, conveyances for a pretended consideration; .

*207 and that there now are in possession, as heirs, donees, and purchasers of different portions of the premises, several hundred persons, most of whose names are uuknown to the plaintiffs, which persons set up claims and pretended rights and interests therein. And further, that neither Antoine nor Lambert’s heirs, down to the year 1834, committed any open or notorious act, inconsistent with the rights of the plaintiffs, or in any way disavowed the trust and relation as co-tenant, or of brothers or co-heirs, nor in any manner asserted any title to the land, to the exclusion of their rights.

■ The court decreed upon the demurrer to the bill, and also upon the pleas, in favor of the defendants.

The case comes before us on an appeal from this decree. Antoine and Lambert, the two sons of J. B. Beaubien, the common ancestor, and those claiming under them, haye been in the exclusive possession of the premises in question since 1793, a period of sixty-two years before the commencement of this-suit.- The plaintiffs and those under whom they claim, during all this time, as averred in the bill, resided in Canada, and, as appears, most of them in the county of Essex, in the neighborhood of the premises. The four hundred arpens which, in 1793, were worth some six or seven thousand dollars, now embrace a portioh of the city of Detroit, and are worth, with the improvements-, over a million of dollars; and, for aught that is averred in the bill or appears in the case, hu right has been set up by them, or by those Under whom they claim, to the title or the possession of the premises, until the filing of the bill; no claim to the rents and profits, or to an account as tenants in common, or for partition, or to be admitted to the enjoyment of any right as co-heirs.

The case is one, so far as the title of the plaintiffs is concerned, which depends upon the establishment of ah implied trust to be raised by the evidence, and hence falls within, that class of cases in which courts of equity follow the courts of law, in applying the statute of limitations. (Kane v. Bloodgood, 7 John. Ch. R., 91; Hovenden v. Annesly, 2 Sch. and Lef., 607.)

There- are two acts of limitation in the State of Michigan, either of which bars the claim of the plaintiffs:

*208 1. The act of May 15,1820, which limits the right of action to twenty years after the same has accrued; and 2. The act of November 15, 1829, which limits the right of entry to ten years, if the cause of action has then accrued.

The language is: “ No writ of right or other real action, no ejectment or other possessory action, &c., shall hereafter be sued, &c., if the cause of action has now accrued, unless the same be brought within ten years after the passage of this act,any law, usage, or custom, to the contrary notwithstanding.”

There «is no saving clause in'this as to infants, feme coverts, or residence beyond seas.

The pleader has sought to avoid the operation of the limitation, by an averment of concealment and fraud on the part of the defendants, and those under whom they claim. The plaintiffs aver,“ that, until within the last few years, your orators and oratrixes, and those under whom they claim, verily believed and supposed that the said brothers, Antoine and Lambert,' and their legal, representatives, were acting in good faith towards them, but that, about the year 1840, they discovered by information, after examination and inquiry into the facts and circumstances of thé ease, that the said brothers, Antoine and Lambert, and their legal representatives, iutended to cheat and defraud them, anchthose under whom they claim, of their just rights in the premises.”

This averment is too general and indefinite to have the effect to avoid the operation of the statute. The particular acts of fraud or concealment should have been set forth by distinct averments, as well as the time when discovered, so that the court may see whether, by the exercise of ordinary diligence, the discovery might not have been before made. (Stearns v. Page, 7 Howard, 819 ; Moore v. Greene, 19 ib., 69.)

Here, no acts of fraud or concealment are stated; and the time when even an intention to defraud, which is all that is avefred, was discovered, was some fifty years after the exclu ' sive possession of the defendants and those under whom they claim.had commenced; and this, although the parties lived in the neighborhood, and almost in sight of the city, which has, in the mean time, grown up on the premises.

*209 We think the statute of limitation applies, and tha4 the decree of the court below should be affirmed.