, HINCHMAN V· .KELLEY ·
63 .
, Numerous authorities might be cited to the same effect. In given to.' ,thbl case I have confined myaeJl to the questions relating to the real estate only. If upon the tria.l of the case it should, from any cause, appear that the personal property should be more de6Jrltely described, leave to amend in that pa.1'o ticular will, of COUl'lile, be granted. The demurrer is overruled.
BINOHM:AN v. KELLEY et aL
(Circuit Court of. Appeals, Ninth Circuit.
January 16, 1893.)
No. ,
61.
An assignee of one cla1mlng to be cestul que trust of the vendee named In an executorv contract to convey land brought suit to establish a't:rust In such land 19 years after the vendor's death, and 6 years after the death of the vendee, the alleged t:rustee,-a period exceeding the statutory period of limitation. There was no written evidence of the trust. It did not appear that its enforcement had been requested In the l1fetime of either : party to the contract, or that the trust was ever admitted by the vendee's executors, and no explanation of the delay was made. Held, that there Wl18 SUch laches as would justify a court of equity In refusing its aid. 49 Fed. Rep. 492, aff1rmed. B,um-DEHURRER.
2.
When laches affirmatively appears on the face ot a: bill, advantage may be taken thereof by demurrer.
AppeaJ from the Oircuit Court of the United States for the Western Division of the District of Washington. In Equity. Bill by Walter Hinchman against George O. Kelley an(l Andrew O. Smith, executors and trustees under the last will and testament of Edward S. Smith, deceased, and the North Olympia Land Company, to establish a trust in land. The bill was dismissed on demurrer. 49 Fed. Rep. 492. Oomplainant appeals. Affirmed. O. So Fogg, (W. H. Doolittle, on the brief,) for appellant. Galusha Parsons and E. T. Dunning, (parsons & Corell and John O. Stallcup, on the brief,) for appellees. Before McKENNA,Oircuit Judge, and HAWLEY and MORROW, District Judges. HAWLEY, District Judge. This appeal is taken from an order of the circuit court in the district of Washington sustaining a demurrer and dismissing the bill of complaint. Hinchman v. Kelley, 49 {:Fed. Rep. 492. The bill, in substance, alleges that in February, 1872, one Ira B. Thomas held the legal title to certain land, described in the bill, and was apparently the owner thereof; that in fact the land was then owned by Philo Osgood, and the legal title was vested in Thomas 41 secret trust for Osgood; that the Lake Superior & Puget Sound Company, a corporation, through its agent, Edward B. Smith, in good fa.ith, and without notice of the said trust, contracted for and
FEDERA.L' REPORTER.
vol. 54.
purchased otThomas oti his wife, Sarah L. Thoma,g,said for "the/$Wrl.,off31600, andtb.esaidThoma..ll and his wife then ana mere execntetl and delivered ro;the :Lake Superior & 'Sollild !Company, by'and through its agent, Smith, an agreement to selland convey'to"'SIb.ith the said land, which agreement·was duly recorded; that this money was advanbed to Smith by said corporation, and that it was the real and beneficial P3l'ty in interest in making said purchase; that on the 9th of October, 1872, the said Ira B. Thomas died intestate, leaving surviving him his wife, Sarah L. Thomas, and son; that the wife was appointed administratrix of his estate, and the samehas been fully and the administratrix discharged; that proceedings were had ill the superior court of New York, wherein Philo Osgood was plaintiff and Sarah L. Thomas and her son were defendants, and resulted in a decree declaring that Ira B. Thomas held said the legal title thereto iri.,t,rust for Philo Osgood; ,that, in pursuance of said decree, said Sarah L. Tho:rnas and her Bon executed to said Osgood a quitclaim deed conveying said land to him, which deed was recorded in Thurst<in co1;lnty, Wash., where said.bmd is situated; that thereafter the said Osgood and his wife executed and delivered a quitclaim deed of said land,to one Philo Remington; that by divers quitclaim deeds the land was conveyed to several parties, and on the 1st of November, 1889, to the North Olympia Land Company, a cocporation, Qne of the defendants; that all of said deeds were duly recorded; that the said Edward S. Smith died December 31, 1885, without having conveyed said land or assigned the said agreement to the Lab Superior & PugetSound Company, but that by virtue of the trust before mentioned he delivered said contract to it; that said Smith died testate, leaving his property to his executors and trustees, parties defendant herein; that the said Sniitli at all times "admitted that said money was furnisped by said company, and used by him as aforesaid, and that he held said contract aild interest in said ,land in trust for said' company i" that on the 3d of January, 1891, the Lake Superior & Puget Sound Company conveyed said land to ,the Whidby Land. & Development Company, a corporation, and 3)ssigned the agreement before mentioned to it, and on the 20th Qf November, 1891, the Whidby. Land & Development Company sold and' conveyed the land,and assigned the agreement to complainant, Hinchman; that Osgood and all the parties who procured the quitclaim deeds "had full, complete, and actual notice and knowl· edge of aU the matters aild things in this complaint set outi" that complainant's grantor demanded of the executors and trustees of said Smith that they execute and deliver to it a deed of conveyance Qf said land, and assign to it the agreement before mentioned, so as to vest in it· the title and ownersItip to said land, which they refused to do; that the North Olympia Land Company claims to have some title to said land, and thereby clouds and slanders complainant's right, title, and interest iil safd land; that said land is vacant and unimproved, and is not in the actnal possession of anyone. Com· plainant prays that said Ira B. Thomas be decreed to have held said latin in trust, with power sale, for Philo Osgood; that the Lake
HINCHMAN 11. ttELLEY.
65
Superior & Puget SOund Company be decreed to have furnished the money to said Edward S. Smith· which he patd to said Ira· B. ·['h0lnaS for said contract and .land, and that said· Smith, in procuring said contract and land, acted as the agent and trustee of said company; tha.t said trust be declared, and that complainant be decreed to be the absolute owner of the land, and that his titJ.e thereto be established and quieted; that defendants, and each of them, be restrained and forever enjoined from setting up or claim.ing any right, title, or interest therein; "and for such other, further, and additional relief as may be just and equitable." Can this aetion be maintained for the enforcement of the trust? Is the right of action barred by lapse of time? Was the grantor of appellant, the Lake Superior & Puget Sound Company, guilty of such laches as to deprive it of the right to maintain this action? Can laches or lapse of time be pleaded in bar to an action for the enforcement of a trust of the character set out in the bill? There is no averment in the bill that the cestui que trust ever requested the enforcement of the trust during the life of Thomas, or during the life of Smith, its alleged' trustee. No explanation is given as to why tlie suit was not brought in their lifetime, nor any reason given why the commencement of the action was delayed for such a long period of time after their death,-19 years after the death of Thomas, and 6 years after the death of Smith. There is no averment that the executors of Smith have ever admitted the trust. No written contract is alleged to· be in existence as evidence of the trust. The assignment of the trust was not executed by the Lake Superior & Puget Sound Company until nearly six years after the death of its alleged. trustee, and long after the statutory period of limitation, under the law of Washington, had fully run. . Courts of equity have always refused to give any aid to stale demands when the parties seeking relief have slept upon their rights, and acquiesced for a long period of time, and. have repeatedly declared that nothing can call a court of equity into activity but conscience, good faith, and reasonable diligence. Laches and unreasonable neglect are always discountenanced. This defense is peculiar to courts of equity, and is founded upon grounds of public policy, and is often based upon the mere lapse of time, and the staleness of the claim, in cases where no statute of limitations directly governs the case; the courts acting I!lometimes by analogy of the law of limitations, and sometimes upon their own inherent doctrine of discouraging antiquated demands by refusing to interfere where there has been. gross laehes in prosecuting alleged rights. This general rule is admitted. Its application to the facts of this case is, however, denied. Every case must, of course, depend upon its own peculiar facts. While it is true that one ground most frequently mentioned for the enforcement of the general rule, to wit, the possession of the party against whom the demand is made, and long and unreasonable acquiescence in the assertion of adverse rights, does not exist in this case, yet there are other groUIlds that are directly applicable to the facts of this case that have been recognized as equally controlling in favor of the rule. One of the particular reasons which have induced the courts to v.54F.no.1-5
66 refust, ito-et
FEP]jlRA.;LltEPOBTER,
of ascertaining $e, facts Mfe for of equity to' exercise its judicial and thia rU"especiaJly case like ,tllefflle under consideration, when, tbemoons of. the trqst, if @founded, cannot be obWeG:;OIUlOOOunt:ot,1Ae lleath ot the t:M complp,iningpany,llas $lumbered .over hls, mghts fQr a long peri'()d iOfntinle, with noobliltaclein the way to him. from assert,. ing thwn, until the evidence upon which; ,lilUClI.. rights might be questionedHllnd, overthrown.,lost, andf;tllthe or:ig:inal actors are dead, and their affairs left to. heirs 01' it if5 deemed meet ,and :pJ:l,)])er 't;Mt the law,ln the e,xercise of ita equitable jurisdiction, shouJ,d; pmumeit unjust, and refuse to allow the complainant 'W' b,e ,hearq.. .The peaceanq. safety., of li10ciety and the property ti,ght.ft:the general;pl1;l>Itc ,demand tliisprotection. Prevost ,Gratz, 6 Wheat. 498;,14:qKnight v.Taylor,'l How. 168; Jeilkins v. Pye,12 Pet. 241., A'failure to reasonable diligence to enfOJlf.e the trust, or the omission to specificaJ,ly state the inpediments W. prosecution,of the claiIn, 01' demand, isanot.h.er specW for theapplicatiQn of the general rule; Badger v. Badger, 2 Wall. 87; Sullivan v. Railroad 00.; 94 U.S. 811; .Godden v. IOm:tnell,99 U. S. 211;' 4ndsdale v.$mith, 106 U.. S. 394, 1 Sup. Ot. " : : ' l'.rhf! principles applicable to the case at bar are clearly stated in 2 StofY, Eq. Jur. § follows: ,
to
of
I'
"It is often SlU1:J;teSted that lapse of time' COnstitutes no bar In cases of trust. But. this· proposition must be .received with its· appropriate quslliicattons. As long.as the relation of trustee and cestui que.trust is acknowledged to exist betw;een the parties, and is continued, lapse of time can constitute no 1>IU'Jo an account 01; other proper reliet for the cestui que trust. But where thJ8re18.tion is no longer adl1J.itted to 'exist,' oi-time and long acquiescence have obscured the nature and character of the trust, or the acts of the parties or oth$r c1J:cums1:lmces give ,rise to presumptlonliJ unfavorable to its continuance, in all such cases a court of equity willretuse relief upon the ground of lapse of time; and itslnabllity to do complete justice. This doctrine will apply even to ClUles of express trust," and, a fortiori, it will apply with Increased strength to cases of 1mvlied or constructive trusts."
:After a careful reviElw of the decisions upon this question, we are of opinion that the North Olympia Company, upon the factB aJlegedin the bill, has the right to rely upon the well-settled principles :of equity that time and long acqqiescence, the want of diligence, the fallure toassigI1. any reason for delay, and other acts of the parties, sufficient to, raise the presumption that the Lake Superior & PugetSound Oompany ,bad a.bandoned its claim, or that was in some manner or coJP.promised prior to its assignment to complainant, have deprived complainant of asserting any rights in the' premiSes in a cO'Qrt of· equity.. . It afll,rmatively appeamg from thea,verments of the bill that com· plaiJ;lant is not entitlec;l. to. any rellef .by reason of the laches and unreasonable delay. of the Lake Supel10r & Puget Sound Compa.ny, the objection was pllOperly takenlly· 'S demurrer. 'Maxwell v. Ken· nedy, 8 How. 210;, Browll v. ,Oounty.of Buena Vista, 95 U. S. 159; Bank v. Oarpent6f, .;L01. U. S. 56S; Speidel v. Henrie!. :1,20 U. S.
NORTHERN PAC. R. CO. V. WRIGHT.
67
387, ·7 Sup. Ct.. Rep. 610... careful exatnimttion of all the facts alleged in the bill,andof the authorities'applicable to· such facts, we are of opinion court did not ew' in sustainmg the demurrer. The of the circUit court is affirmed. ' NORTHERN PAC. R.'CO. v. wItIGHT, County Troosurer. (Circuit Court ot Appeals, Ninth. CircIl1t. No. 59. PUBLIC LAN,DS-RAILROAD GRANTS-S'J:A'J:ETAXATION.
The grant ot lands to the Northern Pacifio Railroad Company under Act July 2, 1864, (13 St. at Large, p. 365,) was a present grant, whioh attached to the specifio sections as they beoaI1l.e capable of identification by the definite location ot the road; and upon a report by· the government surveyors that the lands surveyed are nonmineral suoh lands become SUbject to state taxation, although not segregated trom the pUblio domain, and although the land commissioner refuses to issue patents therefor until further satisfied that the lands are in faot 51 Fed. Rep. 68, atlirmed·.
Appeal from the Circuit Court of the United States for the District of Montana. In Equity. Bill by the Northern Pacific Railroad Company against F. E. Wright, treasurer of Fergus county, Mont., to enjoin the collection of taxes. . A demurrer to the bill was sustained, (51 Fed. Rep. 68,) and a decree entered dismissing the same. Complainants appeal. Affirmed. Fred M. Dudley, for appellant. H. J. Haskell, for appellee. Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge. HAWLEY, District Judge. Tli.is is an appeal from an order and judgment of the circuit court for the district of Montana sustaining a demurrer to complainant's bill, which was brought against the county treasurer of Fergus county, Mont., to obtain a decree that the assessments and taxes levied for the year 1891 upon certain lands granted to complainant by the act of congress approved July 2, 1864, entitled "An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound, on the Pacific coast,· by the northern route," (13 U. S. St. 365,) were illegal, and constitute a cloud upon complainant's title to said land, and to restrain the treasurer from selling said land fm.' said taxes. Railroad Co. v. Wright, 51· Fed. Rep. 68. The bill alleges, among other things, that the lands in question were within the limits of the grant; that the complainant's railroad has been completed and accepted; but the comm.issioner of the general land office has refused to issue patentS to complainant for said lands, as required by section 4: of the because complainant has failed and refused to :file with the commissioner affidavits showing the nOnnllneral character of the land; that the