73 Cal. 285 | Cal. | 1887
— According to the complaint, the material facts are as follows: In 1849 John A. Bell and William M. Bell became partners " in the business of buying and selling stock, and the purchase of real and personal property.” The business was carried on until the death of John A. Bell in 1859, at which time there was on hand, belonging to the firm, “ a large amount of personal
No administration was had upon the estate of John A. Bell until June 3, 1885, when the plaintiff was appointed administrator. In the mean time, “ and up to the third day of June, A. D. 1885, the said William M. Bell has continued and did continue individually in the possession of the whole of said real and personal property, and to manage and carry on said business, and dispose of said property, and to collect the debts and things in action, and to manage and control all the property in any wise belonging to said partnership, and during the time aforesaid used the said property in any manner he saw fit, and has sold and disposed of said property, and changed it into other property, and realized thereon large sums of money, the amount of which plaintiff does not know and cannot ascertain.”
It is not alleged that the heirs of John A. Bell were ignorant of these proceedings on the part of William M. Bell, or that there were any impediments to the prosecution of their claims, or that they made any demand upon him, or in any way asserted their claims, during his lifetime. He died on June 3, 1885, and the defendants were appointed executors of his will. The complaint goes on to allege that “the said plaintiff
The court below sustained a demurrer to the complaint, and the plaintiff not amending, final judgment was entered in favor of the defendants. Two grounds are urged in support of the judgment. It is argued, in the first place, that the claim is barred by the statute of limitations; and in the second place, that the claim is so stale that a court of equity will refuse to enforce it.
1. In the view we take of the case, it is unnecessary to pass upon the first question. Assuming in favor of the plaintiff what we are inclined to think is true, — viz., that the trust is not one of those implied trusts against which the statute runs,—we think that so far as the claim for relief is founded upon the partnership transaction it is stale, and that a court of equity will not aid its enforcement.
This is a defense peculiar to courts of equity, and applies, although no statute of limitations governs the case. (Harwood v. Railroad Co., 17 Wall. 81; Sullivan v. Portland etc., 94 U. S. 811; Godden v. Kimmell, 99 U. S. 201; Sheldon v. Rockwell, 9 Wis. 181; S. C., 76 Am. Dec. 265; Harrison v. Gibson, 23 Gratt. 212; Stout v. Seabrook, 30 N. J. Eq. 189, 190; Matter of Neilley, 95 N. Y. 390; Groenendyke v. Coffeen, 109 Ill. 329; 2 Story’s Eq. Jur., sec. 1520.) It is not the same thing as equitable estoppel, although it has been termed a quasi estoppel
The principal foundations of the doctrine are acquiescence and lapse of time. But other circumstances will be taken into consideration. Thus it is a material circumstance that the claim was not made until after the death of those who could have explained the transaction, (See Mooers v. White, 6 Johns. Ch. 360; Barnes v. Taylor, 27 N. J. Eq. 259; German-American Seminary v. Kiefer, 43 Mich. 111; Bolton v. Dickens, 4 Lea, 577; Hatcher v. Hall, 77 Va. 578.) So it has been held that a change in the value and character of the property may be material. (Bliss v. Prichard, 67 Mo. 187; Allen v. Allen, 47 Mich. 79.) But as stated by Davis, J., in McQuiddy v. Ware, 20 Wall. 19, “ there is no artificial rule on such a subject, but each case as it arises must be determined by its own particular circumstances.” In other words, the question is addressed to the sound discretion of the chancellor in each case. (Brown v. County of Buena Vista, 95 U. S. 160; Rayner v. Pearsall, 3 Johns. Ch. *586; Landrum v. Union Bank, 63 Mo. 56.)
Now, in the present case, the complaint does not allege that the heirs of John A. Bell had not knowledge of the proceedings of William M. Bell, or that there was any impediment to their action, and consequently it must be presumed that they had such knowledge, and that there were no such impediments. (Marsh v. Whitmore, 21 Wall. 184, 185; McQuiddy v. Ware, 20 Wall. 19; Harwood v. Railroad Co., 17 Wall. 81.) Such being the case, we think that the fact that they delayed the assertion of their claim until the death of the surviving partner, a period of twenty-five years, is sufficient to make their claim stale.
It is contended, however, that this question cannot be raised on demurrer. But the preponderance of authority (and we think the better reason) is to the effect that it can. (Landsdale v. Smith, 106 U. S. 392; Bliss v. Prichard, 67 Mo. 189, 190; Shorter v. Smith, 56 Ala. 210.) The defense is, in substance, that the bill does not
We think, therefore, that so far as the claim for relief is founded on the partnership transactions a court of equity will not enforce it.
2. But the complaint alleges that the real property “ has at all times since the same was acquired and still does stand in the names of said partners, John A. and William M. Bell.” Does this, in connection with the other allegations, state a cause of action of any kind? We think not. The action cannot be considered as for partition between co-tenants because the administrator is not a co-tenant, and cannot bring such an action. (Freeman on Cotenancy and Partition, sec. 454.) It cannot be treated as an action of ejectment between co-tenants, because what is alleged does not amount to an averment of ouster (Carpentier v. Webster, 27 Cal. 561; Carpentier v. Mendenhall, 28 Cal. 487; S. C., 87 Am. Dec. 135); and it cannot be treated as an action for mesne profits, because (if for no other reason) there is no averment that the use of the land was of any value.
We see no aspect in which the complaint states a cause of action; and we therefore advise that the judgment be affirmed.
For the reasons given in the- foregoing opinion, the judgment is affirmed.