Lutjen v. Lutjen

The opinion of the court was delivered by Veedenbubgi-i, J. (after stating the facts as above). The absence from the decree appealed from of any finding of the jurisdictional ground taken for invalidating the release, seems to justify a brief reference to the subject of jurisdiction. The right to an accounting in equity does not exist in favor of the complainant unless and until his deed of release is swept from his path. While that remains, his way is barred. Pie is, until it is displaced, effectually estopped by its clear and explicit terms from enforcing any right he might otherwise possess to a further share in the real and personal property of his testator. The share or interest which prior to the delivery of his lease was vested in him jointly with the defendant, became, after its delivery, the separate and absolute property of the defendant. If, under the evidence, there was no jurisdictional footing to set ■aside lire release, his bill, it will be conceded, should have been dismissed. There being no mutual mistake, alleged, there could have been no relief granted for the reformation of the instrument on that ground, as this court has repeatedly held—Green v. Stone, 9 Dick. Ch. Rep. 387; Herron v. Mullen, 11 Dick. Ch. Rep. 839—nor has the complainant placed himself, by the form of his bill, in a position to ask for a rescission on the ground of a mistake on his part. See cases, supra. The sole frame of the bill is that the release was obtained from the complainant — 779 — through the exercise of actual fraud by the defendant, but the decree does not so find, nor does the evidence justify such a finding. In the proofs there can be found no trace of positive or designed fraud in the entire history of the transactions between the parties. If fraud can be predicated at all, it is but constructive, and such as arises, presumptively, only from the confidential relationship of the parties. The utmost that can be said in behalf of the view that the release was procured by fraud is, it seems to me, that owing in part to the confidential and friendly relationship of the parties, in part to the absence of independent and competent legal advice, as well as owing to the inherent difficulties, both in law and fact, of the computation of the balance due him, the complainant was induced to make the settlement and execute the instrument of release for a less sum .of money than was then his due. The administratrix, on her part, for like reasons, ran the equal risk of paying to the complainant more than was his due. It would be strange, indeed, if the administratrix intended to profit by a false statement made more than eight years before the complainant was expected to act upon it. She gave him, according to- the complainant’s own testimony, from the year 1883 until the year 1891 to think about the $5,000 and to make the calculation of the balance due him, during which time he could, of course, consult his friends or any lawyer upon the subject. He thus admits he had notice for a period of not less than eighteen years before he brought his suit and for more than twelve years after he reached his majority, and for nearly ten years since he executed his release, that the claim made then, as well as now, by tiróse whose pecuniary interests he must have known were opposed to his own, was that $5,000 constituted the correctly calculated amount of his share. He was thus early, openly and frankly dealt with by the defendants, and put upon his own inquiry during that long period of time. His failure to investigate for-himself or to make inquiry of others whose interests were not adverse to his own, and who were competent to advise him, was his own affair and his own negligence (if such, indeed, it has turned out to- have been). A more deliberate opportunity to an interested party to arrive at a correct result could scarcely have been given. Even if it — 780 — be admitted that he has disclosed the whole truth as to the information. he obtained, prior to the date of the release, respecting the sum of money due him, certainly it would seem that he should be held bound by his subsequent deliberate submission of the matter to the surrogate. After the surrogate’s calculation and decision, when the items of the account, involving the prices of board, the periods of time and the value of services rendered (and many small items of expenditure which had occurred during the years since the father’s death in 1883), and when all the facts were fresh and easily ascertainable, such decision and its acceptance by the complainant without objection should be regarded at this late day as final. The various methods of calculation of the complainant’s share;, as claimed by the respective parties under section 21 of our statute concerning wills, and referred to at length by the learned vice-chancellor in the opinion below, show some of the difficulties of the computation. The parties evidently adopted the estimate of the surrogate because they both undoubtedly believed it to be correct. For the accurate adjustment of all these old items the court can now have only the assistance of the fading memory of witnesses, and cannot feel satisfied of its ability to deal justly with the situation as it really existed. A finding of these facts now by this court can hardly be more than a conjecture, a condition of judicial uncertainty that cannot justify the setting aside of the formal settlement of 1891. The conjectural character of the decree below is evident from the following terms, used in the conclusion in denying an accounting urged by the defendants, viz.: “But I think that an accounting must be refused for the simple reason that a reperusal of the evidence satisfies me that it is impracticable to take it. There are no data in existence from which a master could arrive at any just conclusion capable of being stated in dollars and cents. * * * The result is necessarily founded somewhat upon conjecture.” But there is a further ground for the rejection of the claim of the complainant by a court of equity. Iiis release has stood unchallenged by its author upon the records of the titles to property in the public office for the long period of nine years and — 781 — almost eight months. Lapse of time alone is deemed by the authorities to be a sufficient ground of estoppel in cases like the present, when the court cannot feel confident of its ability to ascertain the truth now as well as it could when the subject for investigation was recent and before the memories of those who had knowledge of the material facts have become faded and weakened by time. To constitute estoppel of this description it is not essential that any actual loss of testimony, through death or otherwise, or means of proof, or changed relations, to the prejudice of the other party, should have occurred. But the estoppel arises because the court cannot, after so great a lapse of time, rely upon the memory of witnesses to reproduce the details that entered into the final execution of the instrument of settlement. The case in hand is, as already noted, a striking illustration of the importance of adhering to this rule. It is held by a long line of controlling authority, both in this state and elsewhere, that suitors who seek to repudiate their deeds of release are bound to use reasonable diligence, after the delivery of the instruments of settlement, both'to ascertain their rights and to enforce them in courts of equity. The old equitable maxim, Vigilantibus non dormientibus coquitos subvevui, is applied her. Equity requires this diligence, in analogy to the statutes of limitation at law, for the security of titles to property; to guard against the danger of the loss of evidence by the death, failure of memory or absence of witnesses and proofs, and for other important considerations. There has been no inflexible rule adopted by the courts fixing any exact period of time as a bar to relief in such cases. Necessarily each case must rest upon its differing circumstances. Under what variety of situations our courts of equity have refused relief to litigants who, being-under no legal disabilities, have not used what the courts have regarded as reasonable diligence in challenging their deliberate seals to like instruments, will be seen by reference to the following- cases: In Doughty v. Doughty, 3 Halst. Ch. 643, in an opinion read by Chief-Justice Green, where the instrument of settlement, sought to be avoided for inadequacy of consideration and fraud (charges of unsoundness of mind of the complainant also being made), — 782 — was executed in July, 1833, and the bill.was filed in December, 1845—a period of about twelve years—this court held that the objection of lapse of time was fatal to the relief sought, in whatever form the case might be presented. In Gifford’s Administrator v. Thorn, 1 Stock. 702, where the deed of assignment and release attacked was of a residuary estate worth a sum very largely in excess of the amount actually received and mentioned in the paper, this court held that it was not reasonable diligence for the party, “where there is no disability and no impediment to the vindication of his rights, to lie passive for twelve years and to call on a court of equity for aid, when the lapse of time and his own laches may have deprived his adversary of the means of defence;” and the complainant’s bill was dismissed. In Trustees of East Newark Co. v. Gilbert, 1 Beas. 78, where the bill was filed (to set aside a deed of conveyance, on the ground that it was fraudulently procured) on the 5th of October, 1857, “nearly four years after the conveyance,” Chancellor Williamson held that the injunction should be dissolved, because the complainants should have filed their bill promptly. In Brown v. Mutual Benefit Life Insurance Co., 5 Stew. Eq. 809, in affirming a decree advised by Vice-Chancellor Van Fleet denying the defendant’s efforts to repudiate his deed, this court held that if a party would avoid a deed on the ground of fraud or forgery he is required to interpose the objection promptly. The effort in this ease was to invalidate a power of attorney and mortgages executed about ten years prior to suit brought to question those instruments, and this court held the delay was too great. In Swayze v. Swayze’s Executors, 10 Stew. Eq. 180, it was held, in an opinion filed by Vice-Chancellor Bird, that “where matters of account were equally within the knowledge of both parties, and there was no surprise, but considerable deliberation, and complainant allowed the settlement to stand for five years unquestioned, the court will not disturb it.” In McCartin v. McCartin’s Administrators, 18 Stew. Eq. 273, this, court, upon the point under discussion, affirmed the decree advised by Vice-Chancellor Van Fleet dismissing the complain — 783 — ant’s bill—reported in 16 Stew. Eq. 323. This bill was filed in July, 1886, about nine years after the sale of the mortgaged premises. The objects of the suit, over which the controversy principally arose, were to procure a settlement of the estate of deceased and a division of the testator’s property among his beneficiaries. The vice-chancellor held that the persons in whose behalf the claim was made had delayed their suit too long. In Coles, Administrator, v. Vanneman, 6 Dick. Ch. Rep. 323, on appeal from a decree advised by Vice-Chancellor Bird, dismissing complainant’s bill for laches, this court affirmed the decree and held that eight years’ delay—-from August, 1877, to August, 1885—by parties interested, in seeking redress from a receipt in full which was endorsed upon a mortgage at the time of its surrender by the owner, resulting in its cancellation, amounted to inexcusable laches. The suit was brought by the representative of the surrenderer against the surrenderee alone, no rights of third parties having intervened. The allegations of the bill resembled those in the present case in that they charged that the mortgage, with its endorsement, was obtained from the owner by unfair means. While the court expressed doubt as to the weight of evidence upon a question of the fairness of the transaction in the procuration of the receipt in full, in view of the mental infirmities of the owner, it held that the failure of himself and his family, who knew about the transaction, to question the matter by suit for so long a period was fatal. These adjudications, it will be noted, are based chiefly upon the idea of the injury that .might have ensued from the loss of testimony through the impairment of memory of witnesses and other causes by reason of delay, and not upon evidence of any actual loss of testimony or proofs. The case of Tynan v. Warren, 8 Dick. Ch. Rep. 313, remains to be considered. Vice-Chancellor Green there held that “the rule that laches in bringing suit will deprive one of his remedy, is not applied unless such neglect has so prejudiced the other party, by loss of testimony, or means of proof, or changed relations, that it would be unjust now to permit him to enforce his rights.” While the decree in this case was reversed, upon appeal, by this court (see 9 Dick. Ch. Rep. 402) upon other grounds, — 784 — the point of laches was not considered nor decided by this court. But there will be found no conflict of decision between that case and the present. By reference to the questions presented for decision, it will appear that Vice-Chancellor Green regarded the complainant there as entitled to enforce an express trust (although this court afterwards held that it was a resulting trust), and he rejected the defence of lapse of time, citing with approval the expression of Mr. Justice Story in Oliver v. Piatt, 3 How. 333, that “the mere lapse of time constitutes of itself no bar to the enforcement of a subsisting trust.” He viewed the ease he was deciding as involving, he said, “an active, subsisting trust,” and consequently, as controlled by his citation just quoted, that mere lapse of time constituted no bar to its enforcement; and this court, upon appeal, in the opinion read by Mr. Justice Dixon, considered tire ease as controlled by the character of the trust shown, expressly stating in his opinion that he had not adverted to the question of laches in the determination of the issues of that controversy. No feature of a subsisting or other trust applies to the case at bar. But it is not intended by what has been here written to construe the expression in the third head-note of “loss of testimony” as referring necessarily to proof of actual loss, as distinguished from inferential loss. Regarding such expression as meaning any loss of testimony, whether actual or inferential, the rule declared in that case is not opposed to the present holding. For the reasons stated, I think the decree below should be reversed and the bill dismissed. For reversal—The Chiee-Justice, Van Syckel, Dixon, Collins, Foet, Garretson, Hendrickson, Bogert, Vreden-BURGII, VOORI-IEES, VrOOM-11. For affirmance—None.