Francis v. Gisborn

83 P. 571 | Utah | 1905

McCANTY, J.,

after making the foregoing statement of the case, delivered the opinion of the court.

As stated by counsel for appellant in their brief, the important question presented by this appeal is, “has the statute of limitation run, or is appellant guilty of laches,” and did the court err in sustaining respondent’s demurrer on these grounds ? Appellant contends that the facts alleged in the complaint, which, for the purpose of determining the sufficiency of the complaint, the demurrer admits to be true, show that the money alleged to have been delivered by him to defendant constituted a trust fund of an express and continuing trust, and that the relation of trustee and cestui que trust was thereby created between them, and he now seeks to invoke the rule that takes such cases out of the operation of the statute of limitations. We are of the opinion, however, that the facts alleged in the complaint entirely fail to show any such relation. The gist of the complaint, when stripped of all redundant matter, is that on the 2d day of August, 1881, at Salt Lake City, Utah, plaintiff delivered to defendant $4,800 “for the special purpose of paying some of said money to satisfy the debts of plaintiff and for the purpose of keeping the remainder and returning the same to plaintiff on demand;” that defendant failed and neglected to pay any of plaintiff’s debts, but mingled said money with his own and used it in his own private business; that nearly twenty years thereafter (December 20, 1900) plaintiff demanded a return of said fund, and that defendant refused to return it or any part thereof, except the sum of $25, which was paid in small payments, the last payment being made in June, 1904. This complaint, in effect, alleges conversion of the money by defendant, and the facts therein stated utterly fail to bring the case within the domain of equity, as the elements necessary to-create the relation of trustee and cestui que trust are not shown to exist. True plaintiff in his complaint designates the-money he seeks to recover as a trust fund, but this, however, is only the conclusion of the pleader. The relations of the parties to each other, because of and which grew out of the-transaction in question, must be determined by the facts, what they did in the premises, and not by what plaintiff chooses to label or call it in his pleading.

“The mere delivery of property or money to one to he held until the performance of an act by another, whereupon it is to he paid over to such person, otherwise to he returned, does not, independent of the equitable circumstances, necessarily create a trust of which equity ha3 jurisdiction, hut, on the contrary, the remedy is by action at law.” (22 Ene. PI. & Pr. 16.)

And on page 15 of this same volume it is said:

“Courts of equity will not assume jurisdiction to establish or enforce trusts in every case where confidence has been reposed or confidence given.”

Even though we should treat this as a suit in equity, it would not take the case out of the operation of the statute of limitations; for the authorities uniformly hold that in eases where law and equity have concurrent jurisdiction lapse of time covering the period of the statute of limitations is a complete bar to a recovery in such cases, and that the only cases not affected by the statute are those over which equity has exclusive jurisdiction.

“It is obvious that a person cannot by declaring a trust change the character of his obligation so as to affect the operation of the statute of limitations.” (Buswell, Lim. and Adv. Poss., 327; 2 Beach on Trusts and Trustees, 668; Wood on Limitations (3 Ed.), 58, and numerous cases cited in note; 18 Am. & Eng. Ene. L. (2 Ed.), 155, 156; cases cited in note.)

Further discussion or citation of authorities on this branch of the case seems unnecessary, as it is plain the case doe's not belong to that class over which equity exercises exclusive jurisdiction.

Appellant contends, however, that the payment alleged to have been made by respondent in June, 1904, takes the case entirely out of the statute of limitations, and, in support of this contention, cites section 2898, Revised Statutes IJtah, 1898, which, so far as material in this case, provides that

“In any case founded on contract, when any part of the principal or interest shall have been paid ... an action may be brought in such case within the period prescribed for the same after such payment.”

When tbe foregoing provisions of tbe statute went into effect, tbe claim sued on bad been barred for a period of more, than twelve years by tbe provisions of chapter 3. Code Civ. Proc. (2 Comp. Laws 1888, p. 224, tit. 2), referred to and relied on as a bar by defendant in bis demurrer. And section 2900, Revised Statutes 1898, wbicb is a part of tbe same chapter as section 2898, supra, provides as follows:

“This chapter does not extend to actions already commenced nor to cases where the time prescribed in any existing statute for acquiring a right of barring a remedy has fully run.”

It will be seen that this section of tbe statutes expressly exempts causes of action against wbicb tbe statute of limitations has “fully run” from tbe operation of section 2898, .relied on by appellant, and by virtue of wbicb be claims bis cause of action was revived when tbe alleged partial payments referred to were made. It therefore follows tbe plea in bar of tbe statute of limitations must prevail.

Tbe judgment of tbe district court is affirmed, with costs.

STPAUP, J., concurs; BARTCIT, C. J., dissents.