Carpenter v. Cushman

105 Mass. 417 | Mass. | 1870

Chapman, C. J.

Carpenter and Dana assigned to Apolles Cushman their judgment against Dan Carpenter, December 18, 1848. At the same time Cushman executed an agreement reciting the assignment, and the fact that he and Timothy G. Coffin had been and still were counsel for them, and were their creditors for fees and expenses, and promising that when a proper adjustment of their claims should be made, and certain matters brought to a close, he would release whatever balance should remain in his hands. On February 11, 1851, Carpenter and Dana executed a deed, reciting the assignment and the fact that land had been set off on the execution issued upon the judgment, and releasing the land to Cushman.

There can be no doubt that this assignment created a trust, and the deed was made for the purpose of perfecting the trust. Any expressions which show unequivocally the intentions of the parties to create a trust, will have that effect. Hill on Trustees (4th Am. ed.) 65. The expressions used in the assignment and deed express unequivocally an intention to create a trust for the purpose of paying the claims of Cushman and Coffin, and paying the balance to Carpenter and Dana. See Richards v. Allen, 8 Pick. 405; Eastman v. Foster, 8 Met. 19.

Coffin afterwards died, and on September 15, 1856, Cushman conveyed to Betsey Coffin, his executrix, two undivided eleventh parts of the land in payment of Coffin’s claims. This was an execution of that part of the trust. Cushman died September 17, 1864. He had remained in possession of the land and taken the rents and profits, except as to the part conveyed to Mrs. Coffin. The defendant is his executor, and holds the land under his will. Dana conveyed his interest in the land to the plaintiff Sibley, February 10,1860. The conveyance is stated to have been without consideration, but we do not think that fact is material in this case.

The claims of Cushman have never been settled, and the only payments he has received have been by taking the rents and profits of the land. The bill was filed January 26,1869, the services of Cushman ceased before January 1, 1849, and the deed was made February 11, 1851. The defendant contends that the plaintiffs’ claim is barred by lapse of time. But the statute of limitations would not begin to run, so long as both parties allowed the trust to continue without a demand. The answer denies that any demand was made upon Apollos Cushman or the defendant, his executor, and no demand appears to have been made for an adjustment on either side. The defendant took the land subject to the trust, and, after the debt due to his testator is adjusted and paid, the plaintiffs are entitled to the balance. The case should be sent to a master to settle the amount due.

Ordered accordingly.