215 F. 791 | E.D. Pa. | 1914
This is the second time the question now raised has been before us. The facts necessary to its decision are stated in the opinion already handed down. The record of the case was not then in such condition that a decree could be entered. The case has now been called for trial. As a preliminary, the defendants asked to have called up and disposed of the question raised by the answer which goes to the whole cause of action. This is in effect a motion to dismiss the bill. The basis of it is that the bill on its face shows a lack of equity in that gross laches in the plaintiffs appear by their own showing. Deave to so raise the question was granted, and a like leave accorded the plaintiffs to amend so as to make their bill self-supporting. This they have declined to do, standing on the averments of the bill as filed to support their equitable claim to the relief for which they pray. They asked only to amend their bill in a feature not involved in the motion to dismiss. This feature is that the bill as filed avers the trust company defendant to have acquired title to the stock, the ownership of which is in dispute; under the will of John Alexander, and is there made a defendant in its capacity as executor of and trustee under that will. The amendment avers that the title of 'the trust company was acquired by a deed of trust executed by the same John Alexander in his lifetime, and asks to have it made a defendant in that capacity. This amendment was allowed, and the motion was heard and is now disposed of upon the bill as thus amended.
‘ The salient facts, so far as we are now concerned with them, and so far as they are averred in the bill, the averments of which, of course, we must on this motion accept as facts, are these:
John Alexander, in his lifetime, as far back as November 20, 1894, had in his possession certificates for certain shares of the stock of the Corn Exchange National Bank, which stood in his name as owner. How much longer than since 1894 he had so held the stock neither the .original bill nor the bill as amended informs us. The amended bill "avers that he transferred this stock to the Fidelity Trust Company, one of the defendants, on the date mentioned. This transfer followed a deed between the parties .inter vivos, and was made to enable the grantee to carry out the trusts therein and thereby declared.
The third paragraph of the bill has now been made to aver that John Alexander had no real ownership or interest in this stock, but held it “in'trust” for the plaintiffs “up until that date,” to wit, November 20, 1894. John Alexander died in 1895, and letters testamentary were duly granted upon his estate. The trust company defendant has assigned this stock to Duden H. Alexander, who has also been made a defendant.
It is to be observed that the fact upon which rests whatever equities the plaintiffs have is not averred as a fact. It appears,- if at all, as implied in the statement that John Alexander held the stock “in trust.” This is the statement of a legal conclusion not a fact. It is further to be observed that there is no averment other than this of the ultimate fact upon which the decision of the question now before us depends, nor of any other facts from which this ultimate fact can be inferred. We are further uninformed why the plaintiffs allowed more than 19
Let us apply the test inquiry in this case. The bill as amended avers that John Alexander, on July 11, 1894, “held in trust for the complainants’’ 60 shares of the Corn Exchange National Bank; that on that day he transferred this stock to the Fidelity Trust Company, in trust for certain expressed purposes, with which the plaintiffs are not concerned, and which are in direct conflict with the beneficial ownership of the plaintiffs in the stock, and that the trustee consistently with the terms of the expressed trust transferred the stock to Lucien H. Alexander. The court on this bare allegation is asked, by a bill filed November 25, 1913, more than 19 years after John Alexander had parted with his title, to decree that the Fidelity Trust Company shall assign this stock to the plaintiffs and account for all dividends received on it. A similar decree is asked against the Corn Exchange National Bank and likewise against Lucien H. Alexander. There is no averment or suggestion that any of the defendants even knew of the claim of ownership of the plaintiffs, and no averment that the Corn Exchange National Bank had any relation to the shares of stock other than that it was the bank which had issued the shares of stock, the ownership of which is in dispute. If these facts, and no more than these facts,
The plaintiffs, after full notice that the sufficiency of the averments of their bill was challenged and that in the judgment of the court thére was this insufficiency, declined to add anything to their averments in this respect. All they have added is in effect this:
“We thought at first that the title to the stock had passed to the Fidelity Trust Company as executor of John Alexander under liis will probated in 1895. We learned, on July 16, 1912, that the' title was acquired in 1891 by deéd from John Alexander in his lifetime.”
Even this fact, it will be observed, was known to them before their bill was filed, and obviously this fact adds' nothing of persuasive force to the prayers of their bill. As therefore, if they prove all that they have averred, their prayers would be denied, there is no good l-eason to withhold the decree until such proofs ar.e made.
This ruling is in accord with the rulings of the courts under the practice of raising tire question by demurrer.
The principles are clearly stated.
The reasons for this are obvious.
2. Where the trust is an implied or constructive trust, there must have been a fraudulent concealment or other cause for the delay in having it found or declared, or lapse of time is a complete bar.
The reasons for this are equally obvious.
3. As the decree of a chancellor is always of grace, it will be withheld where the conduct of the plaintiff justifies this course and unexplained supineness is a reason for the court refusing to be moved. Speidel v. Henrici, 120 U. S. 377, 7 Sup. Ct. 610, 30 L. Ed. 718.
The bill of plaintiffs is therefore dismissed, with costs to defendants.