22 Or. 525 | Or. | 1892
At the trial of this cause in this court, respondent’s counsel argued both the grounds specified in his demurrer. Their examination, therefore, becomes necessary to a proper disposition of this case. In Manaudas v. Heilner, 12 Or, 335, much of the history of this controversy is noted. In that case, it appeared that the appellants Heilner & Cohn had sold the barber shop for six hundred
In this case, the defendant Mann took the deed from Heilner & Cohn with knowledge of all the facts and circumstances under which Heilner & Cohn held the same.
The other objection presents the question whether or mot the plaintiff’s suit is barred by the statute of limitations. In determining this question, something depends • on the character of the title to the property which Heilner & Cohn acquired and the capacity in which they held the -same. It was not contended that they owned the property -.absolutely; but it is claimed by the plaintiff that the -property in their hands constituted an express trust, while ■the defendants claim that the trust was only implied. “All possible trusts,” says a learned American author, “whether of real or personal property, are separated by a principal line of division into two great classes—those created by the intentional act of some party having dominion over the property, done with a view to the creation of a trust, which are express trusts; those created by operation of law, where the acts of the parties may have no intentional, reference to the existence of any trust—implied or resulting, and constructive trusts.” (2 Pom. Eq. Jur. § 987.)
Without entering more minutely into a discussion of the various classifications of trusts, this most general division suffices for the present. The trust in this case was created by the intentional act of the plaintiff in
Having said this much as to the nature of this trust, it remains to ascertain whether or not the plaintiff’s rights are barred by the statute of limitations. This question was considered in Decouche v. Sevetier, 3 Johns. Ch. 190; 8 Am. Dec. 478, and it was there held that no time bars a direct trust as between the trustee and cestui que trust. The Chancellor added: “ The settled rule is (and so it was recently declared by the Master of Rolls, in Cholmondeley v. Clinton, 2 Mer. 360,) that so long as the trust subsists, the right of the cestui que trust cannot be barred by the length of time during which he has been out of possession, and that he can only be barred by barring and excluding the estate of the trustee.” So it was held in Prevost v. Gratz, 6 Wheat. 482, that, generally, length of time is no bar to a trust clearly established to have once existed; and where fraud is imputed and proved, length of time ought not to exclude relief. The principle is stated as elementary, that as between trustee and cestui que trust in the case of an express trust, the statute of limitations has no application, and no length of time is a bar. (2 Perry on Trusts, 863.) Many reasons might be given for this rule, but one seems entirely satisfactory to us.
These conclusions require a reversal of the decree, and it remains to make some suggestions as to the decree to be entered. The defendant stands in the shoes of Heilner & Cohn; and the plaintiff in the former litigation with them established his right to the relief which he seeks as against them, and we are not disposed to send the case back with leave to the defendant to answer generally. A decree will therefore be entered here that the defendant convey the property in controversy, by good and sufficient deed, to the plaintiff within sixty days after the entry of the decree in the court below; and that in default thereof, the decree operate to transfer the title and stand in lieu of such deed.
It does not appear from the complaint that Mann actually paid Heilner & Cohn the six hundred and seventy-five dollars; but if he did, he knew the property belonged to the plaintiff, and did so in his own wrong. If Mann paid to Heilner & Cohn the six hundred and seventy-five dollars, then they have received it twice,—once from the plaintiff under the order of this court, and once from Mann. We do not think Mann’s conduct in these transactions put him in a favorable light, or recommend him to the favor of a court of equity. If he paid this money to Heilner & Cohn, he must pursue such remedy as the law affords, if any, to reclaim it from them.
The cause will be remanded to the court below, with the suggestion that the defendant Mann be permitted to answer in relation to the rents'and profits he has received, and also as to the value of any improvements he may have placed upon the lot, taxes paid by him, etc.; that an account
[On a rehearing of this case, the respondents were permitted to apply to the court below for leave to answer on condition that they deposit with the clerk there the sum of six hundred and seventy-five dollars and interest thereon since the payment thereof to Heilner & Cohn by the appellant, the same to remain on deposit there until otherwise disposed of by order of the court below.— Reporter.]