Harbour v. Rhinehart

39 Iowa 672 | Iowa | 1874

Cole, J.

The demurrer was properly sustained, because the claim is barred by the statute of limitations. The plaintiffs’ right to the real estate, the nine acres, or to its proceeds rests upon one of two bases. They must claim upon the express agreement by parol to convey to them at a future time; or upon a trust resulting to them by reason of having paid White the consideration for the nine acres, in the conveyance to him of out-lot five. If their claim is asserted upon the basis of the express parol agreement, then it is certainly barred by the statute of limitations, which limits the time for bringing such actions, even when the agreement is in'writing, to ten years. No future time being specified, in which he was to convey, the law annexes the implied promise to do so in a reasonable time; and certainly in a reasonable time after the full conveyance to him by all the plaintiffs of out-lot five, which was in 1857, and twelve years before this action was brought.

If their claim is upon a trust, it is necessarily an implied trust, a trust resulting to them because of the payment by them of thebousideration. In other words it is not an express trust, and the authorities are very generally in accord in holding that the statute of limitations, or the equitable bar by lapse of time, in analogy to the statute, will apjdy to limit and'Control the right of action in equity, in cases of implied or resulting trust, Johnson v. Hopkins, 19 Iowa, 49, and cases there cited; Newman v. De Lorimer et al., Ib., 213, and cases cited; Hill on Trustees, 264 (or p. 106 of 4th Am. Ed.) and cases cited in note 3; and see, directly to the point, Strimpfler v. Roberts, 18 Penn. St., 300; Farnam, Adm'r, v. Brooks, 9 Pick., 212; Peters v. Jones, 35 Iowa, 512. This case is one in which the statute of limitations most aptly •applies. The plaintiffs claim title from White; he was in possession when they claim to have purchased and paid the consideration; he never received possession from them or in their right, he never said a word or did an act, so far as shown by the petition, even tending to aclcnowledge that he held possession/»/* them; he laid out-the property into lots, blocks, etc., in his own right and thereby repudiated the trust in 1853; the plaintiffs were all adult, and so far as appears must have had full knowledge of all the facts for twelve years, at least, before this suit was commenced; it was twenty-one years, after the alleged trust originated, before bringing this action; the whole claim rests in parol, and the alleged trustee is dead. Surely the plaintiffs’ claim as stated in their petition is stale, barren and barred.

Affirmed.