Kimball v. Ives

The opinion of the court was delivered by Redfield, J. Two questions are made in the present case ; 1. Whether the plaintiff’s account is barred by the statute of limitations. 2. Whether a settlement of the account is to be presumed from lapse of time. It has been long settled, that the statute of limitations will not, in equity, bar an account subsisting between trustee and cestui que trust, so long as the trust subsists, and the relation is acknowledged on both sides, — which ought, perhaps, to be extended to the case of a guardian’s account, as well after, as before, the guardianship ceases, until the account is settled and the property surrendered, or'some adverse claim, inconsistent with the former relation, is set up. Decouche v. Savetier, 3 Johns. Ch. R. 190; Goodrich v. Pendleton, Ib. 384; Coster v. Murray, 5 Ib. 522. It is true, indeed, that, where the law fixes a limitation to any concurrent remedy, this will be applied in equity; so where the trust is denied, and the possession becomes adverse. [433] Kane v. Bloodgood, 7 Johns. Ch. R. 90, 127; Roosevelt v. Mark, 6 Ib. 266; Murray v. Coster, 20 Johns. 576. In analogy to this principle of chancery law, it has always been held, in this state, that the statute of limitations will not bar the account of an executor, or administrator, or of a guardian, by parity of reasoning. Evarts v. Nason’s estate, 11 Vt. 122; Rix, Adm’r, v. Heirs of Smith, 8 Ib. 365. In the former of these cases it was held, that mere lapse of time will not bar such a claim. The same reason, indeed, which should exempt such a claim from the operation of the statute of limitations, should equally exempt it from the presumptive bar, from lapse of time. There is another reason, why this presumptive bar cannot be applied in the present case, — no such question was raised until the hearing in this court. This presumptive bar is always a matter of fact, to be determined by the triers of the fact, and should have been raised and determined by the commissioner. But from the commissioners, reporting the account, and referring the questions of law, arising upon the facts, to the court, we are to infer that the account is to be alloVved, unless the facts reported by the commissioner constitute a peremptory bar. There are some very respectable authorities, which so treat the defence of mere lapse of time. Sumner v. Child, 2 Conn. 607; Cope v. Humphreys, 14 Serg. & R. 15; Holcroft v. Heel, 1 B. & P. 400. Some other cases seem to favor the same views; but that has arisen, perhaps, mainly, from the fact, that, in the absence of all proof to the contrary, a lapse of twenty years is considered sufficient time, from which to presume a grant, or payment, or most other matters resting in presumption. And the jury, when recommended by the court so todo, will ordinarily make such presumptions, without hesitation. And there are, no doubt, many cases, where these presumptions have been made, quite contrary to what was supposed to be the fact. But that has happened, ordinarily, in regard to deeds and conveyances, in order to quiet a long and uninterrupted possession, — which in this state requires only fifteen years. But the payment of a debt, or the settlement of an account, is never to be presumed, except in accordance with the rational probr abilities of the case. It is, therefore, but just and reasonable it should be judged of by the triers of the fact. Such, too, will be [434] found to be the settled rule of the English law. 2 Wms. Saund. R. 175, n. 2. Mayor of Hull v. Horner, Cowp. 102. In this last case Lord Mansfield says, “ I think it was properly left to the jury, whether they would presume such a grant.” In Campbell v. Wilson, 3 East 294, Lord Ellenborough says; “ It might be too much to say, in the case of Holcroft v. Heel, that the adverse user of the neighboring market for twenty years was a bar to the action by the grantee of the crown. In strictness- it was not. But certainly the evidence in this case was sufficient to warrant the jury in presuming a grant of the right of way.” The rule is laid down in the late edition of Starkie’s Evidence, vol. 2, 824, thus; “ But a lapse of twenty years, before the statute, was no legal bar, but merely afforded a presumption in fact for the jury” And this last proposition contains the result of all the English cases. The consideration, too, that a less time than twenty years, when circumstances concur ,to support the presumption, is permitted to go to the jury, from which to find the fact sought, and that even a much longer time than twenty years is permitted to be explained by evidence, shows very clearly that the presumption is one of fact, and not of law; Gray v. Bond, 2 B. & B. 667; Lord Ellenborough, in Bealey v. Shaw, 6 East 214. From this last case, as well as the nature of the subject, I should consider presumptions of payment and of settlement more undeniably matters of fact for the jury, than presumptive grants, which', in the absence of all evidence to the contrary, become absolute in the term of fifteen years in this state. In the present case, the lapse of time was fully explained by the facts and circumstances in the case, and no presumption of payment or settlement of the account could arise.. Judgment affirmed, and ordered to be certified to the probate court.