57 Ark. 583 | Ark. | 1893
It is difficult to ascertain where 1ruth lies in the conflicting statements of the witnesses, and the contradicting circumstances evinced by the conduct of some of them, in reference to the purpose for which the assignment of an interest in the Pearce decree was made to Moore. It is not of practical importance now because if the appellant’s theory about the facts is correct, her remedy has been lost by lapse of time. The decree was assigned in 1869 ; the appellee has always refused to account because he claimed that the fruits of the decree belonged to him, and the appellant’s suit was not instituted until 1890. Conceding that the assignment was made to Moore for the purpose of raising a fund to pay the appellant’s debt, her suit is barred. She was distinctly apprised by Rice in 1870, or in 1873, that he had assigned property to Moore in trust for her benefit. The witnesses vary between the dates mentioned as to the time of Rice’s communication to her, but there is no controversy about the main fact. The appellant herself recounts it in her testimony. A few days after the information was imparted to her by Rice, she told Moore of it, and was informed by him that Rice had assigned property to him, but that the assignment was made to pay debts due to him and was not for her benefit. She waited 17 or 20 years thereafter to bring suit to compel an accounting, Her excuse for the delay is that she was not fully apprised of the facts in reference to the assignment of property for her benefit until one year before she sued. She argues that the facts were fraudulently concealed from her by Moore, and that the statute did not run against her on that account. A complete answer is that it was not necessary that she should know the details of the evidence by which she expected to establish the fact that the assignment was in trust for her. It was enough that she was apprised that a cause of action existed in her favor. “When a party knows that he has a cause of action, it is his own fault if he does not avail himself of those means which the law provides for prosecuting his claim, or instituting such proceedings as the law regards sufficient to preserve it.” Amy v. Watertown (No. 2), 130 U. S. 320.
Rice informed the appellant of facts which apprised her that she had a cause of action in 1870 or 1873, and she had only to follow up that lead by making inquiry of him, to ascertain all she claims to know now. Shortly after receiving the information, she brought suit against Rice to collect the debt which is the basis of her present suit, without soliciting- further information about the security which Rice had told her Moore held to pay it. It was not enough that she disbelieved Rice’s statement made in 1870 or 1873 to the effect that Moore held security for her, unless, perhaps, she could show that her disbelief was brought about by a fraud practiced by Moore to accomplish that result. If that showing would excuse her non-action, in the face of the fact that she was apprised of the existence of her cause of action and knew that Moore openly disclaimed the trust, it could be only upon the ground that she stood in a relation of trust and confidence toward, or of dependence on, Moore, which enabled him to overreach her. Cóunsel have labored to establish such a relation. It is shown that Moore was her deceased husband’s nephew and the guardian of her children. . But neither of these facts is sufficient to establish the relation. Moreover, it is shown that Moore assumed the guardianship of the children as a part of a business arrangement entered into by him with Rice. The latter had been their guardian, and Moore was one of the sureties on his bond ; Rice resigned the trust, admitting that he was indebted to his wards in a large sum; when it was agreed between them that Moore should assume the liability and pay it off from the proceeds of a stock of goods which Rice & Engle assigned to him, as the witnesses agree, for that purpose among others-, or, perhaps, as Moore insists, from the proceeds of the Pearce decree. It does not appear that Moore performed any duty as g'uardian, except to discharge his predecessor’s delinquency according to their contract. Moore was not Mrs. Leacb’s business adviser, and it is not shown that she ever relied upon him in the conduct of her affairs. The facts did not establish a relation between them that would make Moore’s simple denial of the trust such a fraud as would stop the running- of the statute.
The judgment must be affirmed.
NOTE. — In discussing the question when the concealment of fraud will excuse laches, the Supreme Court of the United States announced the following doctrine:
‘1A wide and careful survey of the authorities leads to these results :
“The fraud and deceit which enable the offender to do the wrong may precede its perpetration. The length of time is not material, provided there is the relation of design and its consummation.
“ Concealment by mere silence is not enough. There must be some trick or contrivance intended to exclude suspicion and prevent inquiry.
“There must be reasonable diligence; and the means of knowledge are the same thing in effect as knowledge itself.
“The circumstances of the discovery must be fully stated (pleaded) and proved, and the delay which has occurred must be shown to be consistent with the requisite diligence.”
Wood v. Carpenter, 101 U. S. 135. (Rep.)
