23 Colo. App. 183 | Colo. Ct. App. | 1912
Grace Ann Cliff, the. only living child of William Cliff, deceased, filed a suit in equity in January, 1908, against Annie Cliff, William’s third wife, to enforce'a resulting trust upon the real estate involved in this suit, of which Annie was in possession, and an undivided one-half interest in which she claimed to own, as the widow of William Cliff, who died in January, 1907, and his joint heir intestate with Grace. Grace is the only child of William and his first wife, Mary Cliff, who were divorced in September, 1884. The second wife was Sarah, who
Appellant’s principal contention relates to the statutes of limitation and the doctrine of laches in equity, pleaded in defense, and, incidentally, the ruling of the lower court in admitting the testimony of Grace as to when she first learned of her right to claim the land in controversy. Her testimony bears directly upon the applicability of such defenses and helps to determine the time when the cause of action' accrued, and within which the suit should have been begun.
Under our statute concerning witnesses, it was error to permit Grace to testify in hjfer own behalf. At common law, a party to a suit could not testify at all in his own behalf, and while our statute has changed this rule of the common law, certain exceptions are still provided for. Secs. 7266 and 7267, Eev. St. 1908 (Secs. 4822, 4816, M. A. S.). After stating, in sec. 7266, that “neither parties nor other persons who have an interest in the event of
“That no party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein, of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of an idiot, lunatic or distracted person, or as the executor or administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee; unless when called as a witness by such adverse party so suing or defending, and also, except in the following cases, namely:
‘ “First. In any such action, suit or proceeding,- a party or interested person may testify to facts occurring after the death of such deceased person.”
Annie was defending as the heir at law of her deceased husband, and Grace was suing her for the property, not as an heir at law of her father, but as the beneficiary under the trust created by her stepmother, Sarah, and under the plain words of the statute she was not a 'competent witness to testify in her own behalf to any fact unless it occurred after the death of her father. Her testimony was that she first learned of her right to claim the land the week after her father’s death, and that she never had any knowledge of it prior to that date. This was testimony to a fact, — her lack of knowledge, — existing prior to and not after the death of her father. Appellee invokes the exception stated in Pigg v. Carroll, 89 Ill., 205, where the distinction is made that in a controversy among the conceded heirs or distributees of an intestate estate, concerning advancements, the heirs are competent witnesses for and against each other. The same rule is discussed in Laurence v. Laurence, 164 Ill., 367, and In re Estate of Maher, 210 Ill., 160; but the ques
Appellant relies upon laches in equity, and upon that statute of limitations that provides that:
“Bills of relief, in case of the existence of a trust not cognizable by the courts of common law, and in all other cases not herein provided for, shall be filed within five years after the cause of action shall accrue, and not after.”
Both of these defenses depend upon Grace’s knowledge of the alleged trust and the time when she first obtained such knowledge, or ought to have obtained it. And
Thayer, circuit judge, in the case last cited, used the following language:
“It is also a well-established rule that when a suitor applies to a court of chancery for relief, for any considerable length -Of time after the wrong complained of was committed, it is incumbent npon him to show, both by averment and proof, some sufficient excuse to justify the delay. This latter rule, requiring a suitor to plead and prove some adequate excuse for his silence and inaction in every instance where there has been an apparent want of diligence, is applied and enforced with great strictness in those cases where a person seeks to fasten upon another a constructive trust with' respect to personal or real property.”
Consequently, the statute of limitations pleaded in the answer, sec. 2912, M. A. S. (sec. 4073, Rev. Stat. 1908), is a good defense unless it be shown by competent evidence, which was not done, that the plaintiff was ignorant of the facts that constituted her right of action, and that her ignorance was excused under all the facts and circumstances as heretofore stated. Therefore, on account of the error committed by the lower court in permitting the appellee to testify in her own behalf to facts hereinbefore referred to, and for the further reason that there is no other testimony in the record tending to prove such facts, and because such facts must be established by the complaining party, which was not done, the cause is reversed and remanded.
Reversed and Remanded.