Benson v. Dempster
55 N.E. 651
Ill.
1899
Check Treatment
Mr. Justice Craig

delivered the opinion of the court:

A careful reading of the original and amended bills will disclose that in neither was it alleged, nor is it claimed, that there was or is now any writing indicating that John Dempster held this property in trust. The words, “in. pursuance of a certain agreement by and between said Benson and Dempster,” are the words used. The deed transferring the property from Benson to Dempster was absolute in form and contained no words indicating a declaration of trust or defeasance, but the transfer was made in payment of a debt of $10,222.01. If any relation of trust can be imputed to John Dempster it arose out of a verbal understanding, and comes within the Statute of Frauds and Perjuries. Section 9 of chapter 59 of the Revised Statutes of Illinois provides: “All declarations or creations of trusts or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing; or else they shall be utterly void and of no effect: Provided, that resulting trust or trusts created by construction, implication or operation of law, need not be in writing, and the same may be proved by parol.” The deed or conveyance alleged to have been made was from Francis H. Benson, as grantor, to John Dempster, as grantee, and any rights which he reserved were in the nature of an express trust. Where there is an express trust there cannot be a resulting trust. A voluntary conveyance cannot be held to create a resulting trust for the grantor. (Stevenson v. Crapnell, 114 Ill. 19.) In Biggins v. Biggins, 133 Ill. 211, it was said, referring to the case of Stevenson v. Crapnell, supra: “It is there held that an express trust between the grantor and grantee of land that the grantee is to hold the land in trust for the grantor or is to re-convey to him on a certain contingency is invalid, under the Statute of Frauds, unless evidenced by some writing signed by the grantor.” What was said in Rogers v. Simmons, 55 Ill. 76, can very properly be applied to the case under consideration: “The deed in this case is absolute. The alleged declaration or creation of trust is not manifested or proved by any writing, and is therefore, as an express trust, utterly void and of no effect.” The alleged trust between Benson and Dempster, being an express trust, is within the statute, and cannot be proved by parol evidence, and is void and of no effect.

Another serious objection apparent on the face of the bill is the gross laches of Francis H. Benson, the father of the complainants. The amended bill alleges that the transfer from Benson to Dempster was made in 1859 and 1860; that Dempster died on November 29, 1863; that letters of administration issued to Orrea W. D. Lansingh May 27, 1864, and that ever since the death of said John Dempster the property so transferred to him “his heirs have taken and used, and received the proceeds, profits, income and increase thereof as their own property, claiming to inherit the same by descent from said John Dempster.” It is also alleged that Francis H. Benson lived in Chicago until 1865; that he lived there when Dempster’s death occurred and at the probating of Dempster’s estate; that the defendants, the heirs of Dempster, claimed to own the property transferred by Benson to Dempster. There is no allegation that he (Benson) did anything during this time, or notified the heirs in any way, or did anything to put the heirs upon notice, that any trust relation existed as to said property, and there is no allegation that any of Dempster’s heirs, or any agent representing them, ever knew that Benson claimed any interest in said property. He filed no claim against the estate of Dempster, and did nothing by which the heirs could know that a secret trust existed. Besides, the bill alleges “that the amount realized by said John Dempster from said property was, up to the time of his death, not sufficient to provide for said encumbrances and pay said indebtedness, * * * and that there remained no surplus to account for to said Benson, but, on the contrary, a deficit, leaving him (Benson) still in debt to said John Dempster, or his heirs or legal representatives,” in 1865. Benson thus knew at this time, as the bill alleges, that a deficiency existed. He said nothing to the heirs, but kept still, leaving the heirs to believe thát Dempster had taken the property absolutely in payment and discharge of the debt due from Benson to Dempster when the transfer was made. Benson, in effect, abandoned the alleged trust at that time. He remained silent about thirty-eight years, (his death having occurred November 25, 1898,) until about the month of July, 1898, when the amended bill alleges he caused a demand to be made on the administrator de bonis non for an accounting. The property, when transferred, was, as the bill alleges, “then heavily encumbered and was of very doubtful and uncertain value, and it was then questionable, and, in fact, improbable, that sufficient amount could be realized from said property to make the payments above mentioned.” This property, it thus appears, was of little value, and now that it has become valuable complainants claim that Dempster received it charged with a trust as to the surplus over and above the indebtedness, encumbrances, etc., notwithstanding that their father had, in effect, abandoned it in 1864. This they cannot do after so great delay.

In Williams v. Rhodes, 81 Ill. 571, it was said (p. 588): “A delay which might have been of no consequence in an ordinary case may be amply sufficient to bar the title of relief where the property is of a speculative character or is subject to contingencies, or where the rights or liabilities of others have, in the meantime, been varied. If the property is of a speculative or precarious nature it is the duty of the party complaining of the fraud to put forward his complaint at the earliest possible time. He cannot be allowed to remain passive, prepared to affirm the transaction if the concern should prosper, or to repudiate it if that should prove to his advantage.”

These allegations show there was inexcusable delay on the part of complainants’ ancestor, and his heirs, the complainants, now that the property has become valuable, cannot claim the benefit of an alleged trust. It was also said in Mayfield v. Forsyth, 164 Ill. 32: “Here was a period of almost thirty-one years in which the complainants, with a full knowledge of all the facts in relation to. the manner in which Robert N. acquired the land, have remained silent and made no effort whatever to set up any claim or assert any rights to the land.. The delay is inexcusable, and this court has held in numerous Cases that a delay for a much shorter period will bar a recovery. — Reach v. Shaw, 57 Ill. 17; Owen v. Peacock, 38 id. 33; Carpenter v. Carpenter, 70 id. 457; Brown v. Brown, 154 id. 35; Quayle v. Guild, 91 id. 378; McDearmon v. Burnham, 158 id. 55.” Benson knew how Dempster had acquired the laud, and yet during- this long period he made no effort to set up any claim that it was held in trust by Dempster. No sufficient excuse is given in the bill to overcome the presumption of acquiescence by Benson during this period of thirty-eight years. Benson resided in Chicago at the time Dempster died, when his estate was administered upon, and until 1865. He was absent then in Canada, and removed to Kansas City, Missouri, in 1869, returning to Chicago in 1895, and continued to reside there until his death, in November, 1898. Why was no effort made after Benson’s return, from 1895 to 1898, to recover the property? He knew, or could have known by the exercise of ordinary diligence, that the heirs of John Dempster claimed absolute title to the property transferred by him, and claimed to inherit it by descent from their father, John Dempster. The inventory and papers in the probating of Dempster’s estate would have shown it, and it is alleged in the bill that ever since Dempster’s death, the property so transferred by Benson “his heirs have taken and used, and received the proceeds, profits, income and increase thereof as their own property.” He could have found from the public records that Dempster’s heirs' had paid and were paying the taxes. Even after Benson’s return from Missouri, in 1895, he made no demand on the administrator until 1898. Dempster he knew was dead, and he knew of his rights under the alleg'ed agreement in 1864. He kept silent, though he knew he was the only one who knew of the alleged trust. He permitted the heirs of Dempster to deal with his alleged property and made no protest or objection and did not inform them of the alleged'trust, and now, after this lapse of time, he cannot claim relief. His conduct amounts, in law, to acquiescence, and he will be bound by it.

The excuse complainants, the heirs of Benson, give for not calling for an accounting is, that Benson, their father, “was intimately acquainted with said John Dempster, and had great faith in his integrity, and trusted implicitly that said Dempster would promptly and properly report and account for and turn over to him the balance, if any, of said property.” When John Dempster died, in 1863, it is alleged “that there remained no surplus to account for to said Benson, but, on the contrary, a deficit, leaving him still in debt to said John Dempster, his heirs or legal representatives.” How, then, can this be offered as' an excuse for this long delay? He could not expect Dempster to account for the increase in value of the property after his decease, and Dempster’s heirs knew nothing of his claim, from anything that appears in the bill. The bill alleges that ever since the probating of Dempster’s estate his heirs have claimed to hold the title to said property by descent from said Dempster. This allegation is, in effect, that for thirty-five years the defendants, the heirs of Dempster, have been in the open and adverse possession of this property.

Angelí on Limitations (sec. 174) says: “Though it has invariably been maintained that the Statute of Limitations does not apply directly to trusts of the nature above considered, yet it has ever been as invariably maintained that if a trustee should deny the right of his cestui que trust, and assume absolute ownership of the property he holds in trust, he abandons his fiduciary character, and the cestui que trust must commence legal proceedings against him within six years therefrom. * * * ‘When,’ says Mr. Justice Story, ‘it is said that the Statute of Limitations does not apply to cases of trust, it is material to consider the sense in which that proposition is to be understood.’ He then says, that ‘even in cases of express trusts, if an open, public, adverse claim is set up by the trustee against his cestui que trust, and the trust itself is denied as any longer subsisting, there is much reason to hold that the bar ought to be admitted to arise from that period.’ * * * In a case subsequently decided by the same learned judge, he gives his opinion that though the doctrine that a positive and technical trust is not barred by lapse of time is regularly true, yet the doctrine is subject to two qualifications, namely: that no circumstances exist to raise a presumption from lapse of time of an extinguishment of the trust, and that no open denial or repudiation of the trust is brought home to the knowledge of the parties in interest which requires them to act as upon an asserted adverse title.”

In the case of Philippi v. Philippi, 115 U. S. 151, the rule laid down is applicable to the case at bar: “It is true, as a general rule, that when the relation of trustee and cestui que trust is uniformly admitted to exist, and there is no assertion of adverse claim or ownership by the trustee, lapse of time can constitute no bar to relief. But when the trust relation is repudiated, or time and long acquiescence have obscured the nature and character of the trust, or the acts of the parties or other circumstances give rise to presumptions unfavorable to its continuance, in all such cases a court of equity will refuse relief on the ground of lapse of time and its inability to do complete justice.”

In the case under consideration both Benson and Dempster, the two parties to the transfer and the only persons who knew the facts, are dead, and what was said in the case of Hammond v. Hopkins, 143 U. S. 224, is pertinent here. There the trustee under the will of a deceased partner was called to account for and to turn over certain land purchased by him in the name of a third person for himself, as trustee, and the court say: “In all cases where actual fraud is not made out but the imputation rests upon conjecture, where the seal of death has closed the lips of those whose character is involved, and lapse of time has impaired the recollections of transactions and obscured their details, the welfare of society demands the rigid enforcement of the rule of diligence. The hour glass must supply the ravages of the scythe, and 'those who have slept upon their rights must be remitted to the repose from which they should not have been aroused.” And at page 250: “The rule is peculiarly applicable where the difficulty of doing entire justice arises through the death of the principal participants in the transactions complained of, or of the witness or witnesses, or by reason of the original transaction having become so obscured by time as to render the ascertainment of t,he exact facts impossible.”

A case similar, in some respects,_ to the case under consideration is the case of Brown v. Brown, 154 Ill. 35. It was there said (p. 43): “But, independently of other considerations, the laches of complainants precludes a recovery. Where a party has slept upon his rights or acquiesced for a great length of time a court of equity will refuse relief. The rule adopted in Carpenter v. Carpenter, 70 Ill. 457, Dempster v. West, 69 id. 613, Walker v. Carrington, 74 id. 446, and other like cases, applies here. As has been seen, the deed was made in August, 1865, and recorded in December, 1865, but this action was not brought until November, 1891. For a period of over twenty-six years complainants acquiesced in the conveyance. The complainants pretend ignorance of the fact that the defendant was claiming under the deed. They knew the deed had been executed and delivered. They received a consideration for the deed. They knew, or at least were bound to know, the deed was on record. They also knew, or by the exercise of ordinary diligence might have known, that the defendant was in the control of the property under the deed. There was therefore no excuse for a want of knowledge that the defendant was claiming under the deed. Moreover, the complainant Lemuel Brown admits, in his evidence, that he learned that the defendant was claiming under the deed after his return from Iowa, which was nine or ten years ago. After learning of that fact he allowed seven years to intervene before bringing an action. The delay was inexcusable.”

A careful examination of the amended bill shows that no sufficient excuse is given for the delay of thirty-eight years between the alleged transfer and the death of Benson and the demand for an accounting by him. A demand must be made within a reasonable time or the claim will be considered stale and relief will be refused in a court of equity. The length of time which elapsed in this case was inexcusable, and ho sufficient excuse is given in the bill for the long delay. The laches of Benson, under whom complainants claim, must be held a bar to any recovery interposed by complainants in the bill.

The decree of the superior court will be affirmed.

Decree affirmed.