85 Wis. 332 | Wis. | 1893
'There can be no doubt the complaint states facts sufficient to show that the plaintiff is entitled to enforce a resulting trust in the land in controversy; that is to say, she is entitled to have vested in her the absolute title to such land, unless she is excluded from such relief by the statutes of limitation of by her laches in the enforcement of her right. Before the enactment of our statute of uses and trusts, she would have been entitled to assert and enforce such trust, even though she consented that the land for which she paid should be conveyed to her husband, or had she personally taken the conveyance thereof in his name. In such cases, however, the statute abolishes the trust except as to creditors of the person paying for the land, but saves it to such person where, as in this case, the grantee named in the conveyance took it as an absolute conveyance in his own name without the knowledge or consent of the person paying the consideration, unless a Iona fide purchaser has intervened. R. S. secs. 2077-2088. If this action is not barred by some statute of limitation, we do not think, under the circumstances of the case disclosed in the complaint, that laches should be imputed to the plaintiff to defeat it. Although during more than twenty years before her husband died she knew he had taken the conveyance in his own name, yet she was residing with him upon the land, using it as the family homestead, and so far as it appears he recognized and ad
It is now thoroughly well settled, by authorities too uniform to require citation and too numerous to cite here, that as between a trustee of an express trust cognizable only in a court of equity, and his cestui que trust, concerning matters connected with the trust relation, no statute of limitation, nor any bar by analogy thereto, can be relied upon to defeat the execution of the trust, unless the full period of limitation has elapsed since the denial or repudiation by the trustee of the trust obligation. If any one desires to consult the cases holding this doctrine he will find many of them cited in the volume of the Encyclopedia of Law above
It is freely conceded that there are many authorities which, in general terms, assert the rule that the statute of limitations runs against all implied, resulting, or constructive trusts. But it is apprehended that the court would fall into serious error were it to accept and apply that rule without qualification to all cases involving the enforcement of such trusts. The trust here sought to be enforced is not an express, but a resulting, trust. Yet it is enforcible only in equity, and the alleged trustee (plaintiff’s husband) from the inception of the trust until he died freely admitted and never denied the trust claimed, and never had any adverse possession of the property; for he and his wife always occupied it jointly as their homestead, and it does not appear that he ever asserted any interest in, or exercised any control of, the land, hostile to the trust here sought to be enforced.
Thus we find in this resulting trust every element which operates to take an express trust out of the statutes of limitation, and prevents the statute from running against it until after-the trust has been effectually repudiated. Under these circumstances it would be illogical to hold the resulting trust within the statute, and the express trust not rvithin it. We do not believe the law makes any such imaginary distinction.
In the leading case of Kane v. Bloodgood, 7 Johns. Ch. 90, decided by Chancellor KbNT in 1823, nó' distinction
We hold, therefore, that because it appears from the complaint that the trust in question is cognizable only by a court of equity, because the trustee always confessed the trust, because he never had any adverse possession of the trust property, and because his heirs have no equities superior to those of the trustee when living, the complaint does not show that any statute of limitation has run against the cause of action therein stated.
We thus reach the conclusion that the complaint states a valid, subsisting cause of action in favor of plaintiff against defendants, without resorting to the rule stated in Second Nat. Bank v. Merrill, 81 Wis. 151, to the effect that statutes of limitation do not run against claims between husband and wife. For authorities to that proposition, in addition to those cited in the opinion of Mr. Justice OetoN, see cases cited in 13 Am. & Eng. Ency. of Law, p. Ill, note 3.
By the Court.— The order of the circuit court sustaining the demurrer to the complaint is reversed, and the cause will be remanded with directions to overrule such demurrer.