Mullen v. Walton

SIMPSON, J.- The bill in this case was filed by the appellant against appellee, for the purpose of forcing an accounting and settlement of an express trust created by the will of appellant’s father, under which appellant’s step-mother (appellee’s intestate) became trustee, more’ than twenty years before the filing of the bill, when appellant Avas only eleven years of age. The case comes up on the decree of the chancery court, sustaining demurrers to the bill and granting the motion t< - dismiss for want of equity, and the only question raised by the assignments of error is whether or not the [172] appellhnt has been guilty of laches, as bars her right to relief. The decisions of this court are very strong on the doctrine of prescription, holding that the period of twenty years is one “beyond which human transactions shall not be open to judicial investigation,” and this period of repose has been made applicable to all kinds of pecuniary obligations, including fiduciary demands in favor of cesluis que trust. — McArthur v. Carrie’s Admr., 32 Ala. 75, 88; Garrett v. Garrett, 69 Ala. 429; Semple v. Glenn, 91 Ala. 245, 261, et seq. This presumption, when applied to the liability of trustees, or others occupying fiduciary positions, requires that there shall have been no recognition of the trust within the period of twenty years. — Semple v. Glenn, supra. In the case at bar the bill alleges that, during the year 1892, the appellees’ intestate wrote a letter to- appellant-in which she stated (referring to her property) “I shall leave it all to you, because I lost most all of that $4,000, when you were a child, part of which your father intended for you, and it will only be right for you to have it when I am done with this world.” We are not left to this expression for information as to what the trust was, for the will of appellant’s father shows a clear trust, and we hold that this reference to it is a clear acknowledgment that, at that time, the obligations of the trust had not been fulfilled, and, taken in connection with this acknowledgment, the clause in the attempted autograph will of the step-mother giving to appellant $1500.00, “her rightful portion,” amounts to an acknowledgment that the obligation was still unfulfilled. It has been said that the laches which will deprive a party of claiming equitable relief is the “intentional failure to resist the assertion of an adverse right” and that consequently there cannot be acquiescence, “without knowledge on the part of the person of the infringement of his legal rights.” — 18 Am. & Eng. Ency. Law, (2nd ed.) p. p. 99, 113 and notes; Pomeroy’s Eq. Juri. § 817; [173] Haney v. Legg, et al, 129 Ala. 619, 625-6; James v. James, 55 Ala. 525, 533. Where there is added to that ignorance, the additional element of fraudulent concealment, by the party sought to be charged, from the party seeking relief, of the facts constituting the rights claimed, it would seem to be a strange perversion of a wise principle of law, to allow the party guilty of the fraud to profit by his own wrong, and to presume that the trust had been settled when the evidence shows that the trustee was concealing it, with the determination of not settling it, and that the cestui que trust had been kept in ignorance of his rights, by the act of the other party. “No lapse of time, no delay in bringing suit, however long, will defeat the remedy, provided the injured party was, during all this interval, ignorant of the fraud. The duty to commence proceedings can arise only upon his discovery of the fraud. — Pomeroy’s Eq. Juri. (2nd ed.) Vol. 2, § § 917, 965; Kilbourn v. Sunderland, 130 U. S. 505, 518-19; Kirby v. Lake Shore & M. S. R. R. 120 U. S. 130, 136. It has been well said by the Supreme Court of the United States, that, “to hold that by concealing a .fraud, or by committing a fraud in a manner that it concealed itself until such time as the party committing the fraud could plead the statute of limitations to protect it, is to make the law which was designed to prevent fraud, the means by which it is made successful and secure. — Rosenthall v. Walker, assignee, 111 U. S. 185, 190. This principle of equity has been marie applicable to the statute of limitations, where there was no statutory provision for the same, but our legislature has made it applicable to the statute of limitations. — Code of 1896, § 2813. While the statute is not strictly applicable to the equitable doctrine of laches, stale demands, or prescription, and while there is a difference in the theory upon Avhich the statute and the equitable doctrine operate, yet the statute shows the legislative mind, and the cases are analagous so far as this principle is concerned. Accordingly we find that this principle has been applied to the [174] equitable presumption.- — Story’s Equity Pleading, (10th ed.) § 818, note 1; Moddaugh et al v. Fox, et al, 135 Ill. 344, 358; Penn v. Folger, 182 Ill. 77, 109. In a case where the widow had destroyed the marriage contract, which* was not recorded, and failed to disclose its existence for more than twenty years-, this court held that the heirs were not guilty of laches, hut had one year after the discovery of the fraud to bring suit, — Holt v. Wilson, 75 Ala. 58, 66, and the court say, “When this (fraud) is coupled with the existence of a fiduciary relation between the parties, rendering disclosure both the moral and legal duty of the trustee, a court of conscience can scarcely preserve its self respect and, at the same time, hesitate for one moment to grant relief.”- — p. 66-7 Ih. The infancy and non-residence of the complainant, in that case, and other circumstances make it, in several respects, analago-us to the case now under consideration. See also same case, 83 Ala. 528, 539. The only remaining question is-, whether or not the constructive notice from the recording of her father’s will in Texas, was sufficient to put the appellant on inquiry as to her rights? We think not. The court has said in another case, “We do not think, however, that the constructive notice of the nature of M’s. possession, as imported by these deeds, should charge the complainant with a knowledge of her rights. The blind ignorance in which she seems- to have been kept, by the fraudulent conduct of her trustee, was sufficient- to drown all suspicion of unfairness, and stupefy the activity of inquiry.”- — McCarthy v. McCarthy, 74 Ala. 555. In the case, under consideration, Ave hold that the facts, as alleged in the bill, that appellant, at the tender age of eleven, Avas sent aAvay into another State, Avhere she Avas raised by her aunts, under the impression, made by her step-mother, that there was nothing due her from her father’s estate, but that the step-mother was going to provide for her out of her own estate, was enough to “stupefy the activity of inquiry,” and she was not chargeable with notice by reason of the record in Texas. [175] The decree of the court is reversed and a decree will be here entered by this court overruling the demurrers to the bill and the motion to dismiss for the want of equity, and allowing the respondents sixty days within which to answer. McClellan, C.J., Tyson and Anderson, J.J., concurring.