57 P. 55 | Or. | 1899
after making the foregoing statement of the facts, delivered the opinion of the court.
It is contended by plaintiffs’ counsel that the petition for the appointment of an administrator of the estate of J. Y. Clary, deceased, did not state facts sufficient to confer upon the County Court of Multnomah County jurisdiction of the subject-matter; that Clary’s heirs were not served with a citation to appear, and show why their ancestor’s real property should not be sold to satisfy his debts, and hence said court never acquired jurisdiction of their persons, in consequence of which it was powerless to order a sale of the premises, thereby rendering any attempted sale thereof void. Defendants’ counsel maintain, however, that, inasmuch as the complaint nowhere charges that Rosenthal was improperly appointed administrator, the question sought to be presented is not in issue ; that, if it were conceded that such sale was void, — which is denied, — the plaintiffs were never devested of their legal estate in the premises, and their proper remedy would have been an action in ejectment, but, having commenced a suit in equity to have Rosenthal declared a trustee, who, by reason of the alleged fraudulent sale of the premises as administrator to himself, holds the title to the land in trust for them, they thereby admit the jurisdiction of the county court,
The fraud charged in the complaint as a basis for the relief demanded is that Rosenthal bought the land from Mrs Clary under an agreement to pay off the Ladd & Tilton mortgage; that, instead of keeping his engagement in this respect, he procured the mortgage to be assigned to Bloch, who undertook to enforce it for his benefit; and, being the equitable owner of this mortgage, he fraudulently sought and secured the appoint
During this period of time the country about Portland probably improved somewhat, in consequence of which the value of this tract, together with all other lands in the vicinity of that city, must necessarily have appreciated in some degree ; and it is a circumstance tending to show that the land was not probably worth as much at the time Rosenthal secured Mrs. Clary’s deed as it was when the note and mortgage were assigned to Bloch.
The next inquiry is whether Rosenthal procured this mortgage to be assigned to Bloch, who held the lien thereby created in trust for him. The evidence tends to show that in 1861 Rosenthal was very poor, and, with his family, was living on leased land, keeping a few cows, and supplying milk to his customers in Portland ; that about that time he became acquainted with Bloch, who was then wealthy, and engaged in the wholesale grocery business in Portland,, and, being Jews, a strong friendship sprang up and existed between them, so much so that Bloch loaned him- money to buy cows, and also furnished him groceries on credit for his family, and feed for his stock; and on May 12, 1862, being indebted on account
The most important question to be considered is
Mrs. Bloch, appearing as a witness for plaintiffs, testified that in consequence of her illness her husband never told her anything about his business affairs, but that on one occasion, in referring to the purchase of the Clary land at the administrator’s sale, he said that it had not cost him anything. This witness, in answer to the question propounded on her direct examination, as to when a certain transaction occurred, said: “I don’t know. I can’t remember. I have no memory any more.” Thomas Trengrove, being called as a witness for plaintiffs, in speaking of what Rosenthal told him about his difficulty in keeping the Clary land, says : “And he was talking about it, and he was finally congratulating himself to me that his friends — his Jewish friends — had come to his relief, and he would not be injured on his place ; he would still retain it; and they were holding it over for him until such time as he could recover it, as I understood him, from them.” Rosen
Mrs. Bloch’s testimony is of little value by reason of her defective memory, and because her husband, in consequence of her sickness, tried to avoid worrying her with his business cares ; and knowing, as she probably did, that he was financially embarrassed, he might say that the purchase of the land had not cost him anything, meaning thereby that he had not paid out any additional consideration therefor. Mr. Goldsmith’s testimony shows how indistinct his recollection of the transaction is, and that he took the title to the property on Bloch’s account, and not by reason of any friendship he entertained for Rosenthal. A consideration of the attending circumstances leads us to believe that the time Bloch and Rosen
Assuming, without deciding, that the administrator’s deed is void by reason of the lack of jurisdiction of the County Court of Multnomah County to order a sale of the land, can it not be said that plaintiffs’ claim to the premises is a stale equity, which is barred by their laches, when it is remembered that Rosenthal, for a period of nineteen years prior to the commencement of this suit, and for more than fifteen years after the youngest heir became of age, has been in the open, notorious, and exclusive possession of the land, claiming a right thereto under Goldsmith’s deed? In Badger v. Badger 69 U. S. (2 Wall.) 87, it is held that courts of equity, acting on their own inherent doctrine of discharging, for the peace of society, antiquated demands, refuse to interfere in attempts to establish a stale trust, except where" (1) the trust is clearly established, and (2) the facts have been fraudulently and successfully concealed by the trustee from the knowledge of the cestui que trust. “In order,” says Mr. Justice Wolverton, in Raymond v. Flavel, 27 Or. 219 (40 Pac. 158), “to call into activity a court of equity, there must be an exercise of good conscience, good faith, and reasonable diligence; and, where time and long acquiescence have obscured the nature and character of the trust, or the acts of the parties, or other circumstances give rise to presumptions unfavorable to its continuance, the court is passive, and does nothing, because of its inability to do complete justice.” To the same effect, see also Sedlak v. Sedlak, 14 Or. 540 (13 Pac. 452); Teall v. Slaven, 40 Fed. 774; Naddo v. Bardon, 2 C. C. A. 335, 51 Fed. 493; Pratt v. California Mining Co., 9 Sawy. 354, 24 Fed. 869; Marsh v. Whitmore, 88 U. S. (21 Wall.) 178; Brown v. County of Buena Vista, 95 U.
Assuming that plaintiffs’ complaint, hereinbefore quoted, complies with the rule prescribed in Badger v. Badger, 69 U. S. (2 Wall.) 87, that “the party who makes such appeal should set forth in his bill specifically what were the impediments to an earlier prosecution of his claim ; how he came to be so long ignorant of his rights, and the means used by the respondent to fraudulently keep him in ignorance ; and how and when he first came to a knowledge of the matters alleged in his bill; otherwise the chancellor may justly refuse to consider his case, on his own showing, without inquiring whether there was a demurrer or formal plea of the statute of limitations contained in the answer,” — nevertheless, to entitle them to recover thereon, they must show that by the exercise of reasonable diligence they would have failed to discover the fraud of which they aver they were ignorant. In Johnston v. Standard Mining Co., 148 U. S. 360 (13 Sup. Ct. 585), it is held that, where a question of laches is in issue, the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known to him were such as to put the duty of inquiry upon a man of ordinary intelligence. In Bacon v. Chase, 83 Iowa, 521 (50 N. W. 23), the facts were that a man, having died in Iowa, seised of certain lands in that state, left surviving him several minor children, who resided in Massachusetts. These lands, without notice
When the property forming the subject of the suit is speculative in character, thereby rendering it liable to great and rapid fluctuations in value, prompt action by the party claiming to have been defrauded by its transfer is necessary to repel the imputation of laches which a court of equity invokes from any unreasonable delay in applying to it for relief: Hammond v. Hopkins, 143 U. S. 224 (12 Sup. Ct. 418); Twin Lick Oil Co. v. Marbury, 91 U. S. 587; Pratt v. California Mining Co., 24 Fed. 869, 9 Sawy. 354; Hayward v. Elliott National Bank, 96 U. S. 611. Rosenthal cut and removed the heavy timber which grew upon the land, rendering it arable. He set out orchards, erected costly buildings, and made other valuable improvements. He laid out a part of the tract into lots and blocks, many of which he has sold and conveyed ; and he contributed the sum of $5,000 to secure the building of an electric railway from the City of Portland to the premises, of which he has had the exclusive possession until the land is worth, as plaintiffs allege, the sum of $100,000. The great
Affirmed .