11 N.C. 412 | N.C. | 1826
Lead Opinion
The bill further stated that for a number of years complainants were ignorant of the situation of their father's estate, and further, that Hugh Torrance made repeated declarations that he did not intend to hold nor did he claim Flora and her children as his property, but that they should be distributed among the children of Gilbraith Falls, whereby complainants became less anxious to press for an immediate decision.
The prayer of the bill was that James Torrance might deliver up Flora and her children, and account for the value of their labor.
The answer of the defendant admitted that Hugh Torrance died, as stated in the bill, possessed of Flora, and also of her children; and stated that in November, 1781, the personal estate of Gilbraith Falls was *198 exposed to public sale; that in March, 1784, another sale was made by the administrator, at which not only almost all the property sold at the sale of 1781 was again sold, but also sundry articles which had come to the hands of the administrator since 1781; that this second sale was made on account of the depreciation of the currency of the country in 1781, 1782, and 1783; that owing to the entire depreciation of the continental money before 1784, the value of the estate was greatly reduced, and Hugh Torrance applied to the purchasers at the first sale (who were mostly the next of kin or near relations of Gilbraith Falls) to surrender their purchases and permit the property to be again sold, and many of them did so. That as to the negro Flora, she was the child of Binah, who belonged to the estate of G. Falls; that Binah was purchased at the sale in 1781 by Mrs. Torrance, then the widow of G. Falls, at the price of £ 70 (415) hard money, which was a fair price; that Flora was born after this purchase of Binah, but whether before or after the sale in 1784 defendant was ignorant; that Binah was sold at the second sale in 1784, and purchased by Hugh Torrance, and Flora, if then born, must have been an infant, and was probably sold with her mother; and defendants insisted that if Flora was born before the second sale, she was born the property of Hugh Torrance, inasmuch as her mother, Binah, belonged to him under the purchase of the widow at the first sale, and his subsequent intermarriage with her; and that Hugh Torrance was not bound in law or equity to expose Flora to sale for the benefit of the estate of G. Falls.
Defendants also stated that a settlement of the accounts of the estate of G. Falls had taken place, and complainants had given receipts for their distributive shares more than eighteen years ago, and some as far back as 1785, and insisted that as the bill charged no fraud, and pointed out no specific errors, complainants ought not, after this lapse of time, to open the account, and they prayed all the benefit which equity would give from lapse of time.
As to the coverture of some of the complainants, defendants insisted it was true of a few only, and their husbands were competent to take care of their rights, and had every opportunity of learning the situation of the girl Flora; and as to declarations made by Hugh Torrance, that he held Flora and her children in trust for complainants, defendants answered that they did not admit, nor had they reason to believe, such to be the fact, but rather the contrary. Upon reading the evidence in this case, the general (418) conclusion I have reached is that Flora and her descendants *199 were, after his death, part of the personal estate of Gilbraith Falls, and as such subject to distribution amongst the next of kin, not having been otherwise disposed of by the administrators in their regular exercise of their prescribed legal duties. It is not shown at what period of time Flora was born, whether before or after the first sale; but from her not being named in the first account of sales returned, from her apparent age at the second sale, from the reason then assigned by the administratrix for not selling her, and from other circumstances appearing in the case, I feel warranted in the conclusion that she was born between the two sales. But admitting that she was born before the first sale, and that Binah, her mother, and herself were purchased by the widow, administratrix, that sale, as it respected Flora, was a nullity, and can inure only to the benefit of the distributees. Their right to the property was not divested by it.
The same consequence follows if she was born after the first sale and before the second. In either case she should have been disposed of with the rest of the personalty, and the administratrix omitting to make such disposition, must, in equity, be considered as retaining the possession under the original trust. When the second sale took place, it is admitted by the answer that Hugh Torrance was married to the widow, and that he possessed himself of Flora, who was then bound by the trust, of which Torrance had notice, as further appears in the answer, for he applied to the purchased at the first sale to surrender their purchase for the purpose of a resale. He is, therefore, bound in equity, with (419) respect to Flora and her children, to the execution of the trust.
From this short review of the case it results that the complainants are entitled to a decree, unless relief is barred by the lapse of time. It is true that a court of equity is unwilling to countenance stale demands; and is averse to an interference in behalf of persons who have slept upon their rights, even in cases where there is no bar interposed by the statute of limitations. They will in such cases adopt the presumption, founded on the efflux of time, that the controversy has been settled by payment or otherwise. Time is, in such cases, a circumstance affording a strong primafacie presumption, but liable to be repelled by other circumstances explanatory of the delay.
There has been in this case a very considerable lapse of time, which, considered alone, would be much more than sufficient to bar many claims to which no act of limitations applies, and which at first view forms a great objection to the relief sought. But I cannot but think that the peculiar circumstances of the case are of strength sufficient to destroy any presumption arising from the delay, and to enable the Court to do justice without infringing any of its rules or holding out encouragement to the spirit of wanton and dormant litigation. The property remains *200 the same, with only the addition of an increase from the parent stock; it is completely identified, and has undergone no other change of possession than that from Hugh Torrance to his administrator. The state of the property seems to have been known to some of the witnesses, and most probably to the neighborhood, so that no purchaser will be vexed by a disputed title. The complainants could only assert their right by a legal controversy with the man who had married their mother, and who, it may be reasonably inferred, from the character given of him by the witnesses, had treated them with parental affection. But if these ties were too feeble to restrain them, those of interest may be deemed sufficient, for he had said in repeated conversations with the (420) witnesses that the property he acquired by his marriage should devolve upon the children of Gilbraith Falls, who had made it; and it is not at all probable that those children were ignorant of such declarations. Under the influence of these combined motives, the distributees may be supposed to have abstained from the assertion of their rights, without taking into view the legal disabilities under which some of them continued. Against these circumstances I cannot presume that their demands have been settled or that they have unreasonably slept upon their rights; but am of opinion that the equity of the case is in their favor.
Addendum
As regards time, equity acts either in analogy to the statute law or common law. When to the former, the statute of limitations is introduced with all its rigors, time is a positive bar, it may be pleaded, it is cause for demurrer, nothing prevents its operation but what will have the same effect at law; when it begins to run, it continues to run, notwithstanding supervenient disabilities; if all the complainants are not within its saving, all are without them.
Where it acts in analogy to the common law, time is no bar of itself, but it furnishes evidence of a fact which is a bar, payment or satisfaction, or possibly abandonment; the lapse of time itself is not, therefore, pleaded as a bar, but the fact which may be inferred from it is; but it is an inference of fact, not of law, as under the statute; it is offered as evidence, and, like all other evidence, may be rebutted; there is something like an exception: when the lapse of twenty years, without other circumstances, is relied on, from this alone a presumption of payment is inferred. It is one of those cases mentioned by Lord Erskine; the mind forms no belief about it for want of data, yet it is an inference of fact, and the belief, if it deserves that name, may be repelled by evidence, either dehors or intrinsic, and a bill in such case cannot be (421) demurred to for want of stating those circumstances by which it is repelled, for they are matters of evidence only, and the bill should contain the facts and not the evidence. The first class of cases embraces *201 those suits in equity where the matter of them may also be the subject of one of those actions at law, enumerated in the statute, and in England at this day also, all suits in equity, where the subject of them isanalogous to the subject-matter of any of such actions. An instance of cases of the first kind is a bill for an account for the same thing as would support an action of account at law; six years is a bar in such case, and may be pleaded as such. An equity of redemption, or an implied or rather a constructive trust, is an instance of the second kind; twenty years adverse possession in such cases is a statute bar, and may be pleaded as such. The equity of redemption and the constructive trusts, being analogous to legal estates, an entry into which is barred by an adverse possession for twenty years, a bill to redeem, after twenty years, such possession, without stating on its face that which would take the case out of the statute at law, is bad on demurrer. So all the late cases on the subject, and particularly Beckford v. Wade, 17 Ves., 98, and Walpole v.Clinton. When we adopted our rules as to time, as regards equities of redemption and construction trusts — indeed, as to all cases except in such where the subject of the bill might be the subject of one of those actions enumerated in the act — the rule was understood to be framed in analogy to the common law; it was thought, both here and there, that the statute had nothing to do with it. Time was, therefore, considered as a mere matter of evidence, a presumption of fact; it, therefore, did not vary with the change of time by the statute from twenty to seven years, as it would have done if it had been thought to have been formed in analogy to the statute of England. It was easy to make the change in the decisions, for the time remained the same, towit, twenty years. We have adopted the common-law rule throughout. Twenty years of (422) itself forms a presumption of payment or satisfaction, as it does at law; but is here, as there, a mere inference of fact. Time is the evidence, and the inference may be repelled here, as it is there. It cannot, I think, be denied but that, upon principle, the late English decisions are right, and, of course, that ours are wrong; but after an uniform train of decisions for more than a century, the principle has something like legislative sanction; we cannot make a change; too much property depends on it. We must, therefore declare the rule to be that less than twenty years will not bar an equity of redemption, or an implied trust; and that should a longer period elapse, it is but matter of evidence, and that the presumption arising from it may be repelled; but that twenty years of itself, without proofs either way, dehors or intrinsic, raises a presumption of payment, abandonment, or satisfaction, imperative on courts and juries, as to equities of redemption of personal property, and implied trusts relating to the same, particularly as to slaves. I believe, but I am not positive, that the same rule has always prevailed. We can *202 get nothing on the subject from English decisions, personal property not being the subject of mortgage. It is there called pledging, in regard to which they have very different rules from those applied to mortgages. Pure trusts are not subject to the operation of time; for the possession of the trustee is the possession of the cestui que trust. It is that which supports and fortifies his estate, and which, in fact, cannot exist without it. An analogy to the law time forms no bar; for the cause of action does not accrue unless the trustee thinks proper to consider that it has; for it is not in the power of such a trustee to put off his character at pleasure. It was by agreement that it was created, and it requires the consent of both parties to put an end to it; but the cestuique trust may, if he thinks proper, consider the trust as at an end upon any misconduct of the trustee; but the trustee cannot, by his act or declaration, shake off his character. I am, therefore, disposed to (423) doubt the correctness of some late opinions that in such cases time begins to run from the time the trustee disavows his character, and that is made known to the cestui que trust; for I am persuaded that he can no more, by his own act, put off his character than a tenant can, during his time, put off his and convert his occupation into an adverse possession. During the period allowed by law for the settlement of the estate the administrator may be considered as holding the property on an express trust, and afterwards, perhaps, as to negro property, it would be doing him no injustice to view him in the same character; for, by law, he cannot purchase them himself, nor can they be rightfully sold by him but by an order of the court, and then only for the payment of debts, where the perishable property is insufficient for that purpose, or for the purpose of making division among those entitled. But this case does not require that this question should be decided; for the case is, I think, against him, upon the ground of his standing as a trustee by implication or construction, a situation more favorable for him.
It appears that at the second sale — for I pay no regard to the first, as far as purchases were made by the administratrix — that the girl Flora was not sold, she being claimed by Mrs. Torrance, upon some frivolous ground; that afterwards, when the settlement or statement was made by the commissioners, Huggins and Davidson (upon which settlement Torrance's distribution among each of the distributees was made and at different periods of time), she was not brought into account, and had she been sold for the payment of debts, it is to be presumed it would have been then alleged by him, for the statement was made long after the death of Falls and his marriage with the widow. All these facts show very clearly, I think, that she remains yet to be accounted for. It is a case where the next of kin do not barely show that he was once liable, and call on him to account, in which case lapse of time would of itself *203 afford presumption of satisfaction, but by these proofs render it (424) next to impossible that he should have accounted. I lay no great stress upon Torrance's declarations that Falls' children should enjoy the fruits of their father's labors, further than to rebut the idea of abandonment, for it grew out of some conversation in the family relative to the claim (I presume) for those negroes, for it does not appear that they claimed anything more; but it weighs nothing with me, as to Torrance's recognition of their right; for I think it was nothing more than a mere gratuitous promise, which the law does not recognize, but refers the obligation entirely to the will of the person who made it. An account, therefore, will be taken of the hire of the negroes and the expense of raising them, allowing all moneys or other things expended for their support. The account may be taken by any one the parties may agree on to do it; otherwise, by the master of this Court.
Cited: Nesbit v. Brown,