Raymond v. FlavelRaymond v. Flavel
- Reporters:
- , ,
- Before:
- Wolverton
Opinion by
Mr. Justice Wolverton.Lord Chancellor Eldon, in Hampson v. Hampson, 3 Ves. and B. Ch. 42, says: “Courts of equity have an original jurisdiction, which, I agree, must be exercised according to a sound discretion, to try questions of fact without the intervention of a jury; and which aid is sought, according to the common expression, for the purpose of informing the conscience of the court. I agree that a mistake in refusing to send the case to a jury is a just ground of appeal, if the court of appeal should think that the con*233trary decision would have been a sounder exercise of discretion; but it is a competent exercise of the authority and duty of the court, in every case, and throughout every case, and in every stage, to determine, according to its discretion, whether it does or not want that assistance. ” This doctrine has been recognized and the practice followed in this country. Rad cliff, J., in Le Guen v. Gouverneur, 1 Johns. Cas. 500, (1 Am. Dec. 121,) says: “The chancellor is, constitutionally, the judge both of law and fact. Whether the institution of such a court be expedient or wise is not now the subject of inquiry. Its power is established, and the trial by jury is there unknown. However excellent that mode of trial may be, it is not the right of any party seeking his remedy in that court to demand it. It ought regularly to proceed from the chancellor himself, to inform his own conscience, where the evidence is insufficient for that purpose; and even with respect to him, it is not a power to be exercised at pleasure, and depending on arbitrary discretion.” See also Chase v. Winans, 59 Md. 479. So that at common law, in cases of equitable cognizance, where the evidence was so conflicting and contradictory as to render the true state of affairs doubtful and uncertain, a jury was not demand-able by either party as of right. It was a matter residing within the sound discretion of the court whether an issue for a jury should be awarded. This was a legal discretion, not to be arbitrarily exercised, and was the subject of review by the appellate courts. And under our statute cited above, (section 396, Hill’s Code,) this doctrine must govern as to suits in equity in this state. It is the abuse of discretion that is reviewable, that it may not be arbitrarily exercised. The language of the statute is that “whenever it becomes necessary or proper to inquire of a fact by the verdict of a jury the court may direct a statement,” etc. It is in many instances proper to call a jury when it *234is not necessary or legally essential to do so. It is legally essential only when the law requires it. Such being the state of the law, it remains for us to determine whether there was an abuse of discretion by the court below in not directing a statement for a jury upon the two questions, one of notice, and the other of the statute of limitations. It may be doubted whether plaintiff’s motion for a statement was made at the proper time (see Chase v. Winans, 59 Md. 479), but our views as to other aspects of the case render this question unimportant. We have very carefully read and considered all the voluminous testimony brought here, and have given especial attention to the portions thereof bearing upon the question of notice and the ‘statute of limitations; and, while there is some conflict in the statements of the witnesses, we are left in no appreciable doubt as to the correctness of the findings of the court below. Without restating or discussing the evidence here, let it suffice to say we are fully satisfied that the presiding judge, exercising his functions as a chancellor in a case of purely equitable cognizance like this, did not arbitrarily refuse the plaintiff’s request for a jury, and hence there was no abuse of discretion in such refusal.
Ward v. Harvey, 111 Ind. 471, (12 N. E. 399,) was a case where it was sought to charge the administrator with funds which he had received from the sale of lands of which his intestate held the title. It was contended by appellants that they had furnished part of the purchase money, and that a trust resulted in their favor. The court there say: “Conceding that when the land was acquired and title taken, as it was, by John Ward, in eighteen hundred and fifty, and that it was taken in trust, there can be no recovery, because the evidence shows that more than twenty years prior to the time that this action was brought there was an open disavowal of the trust. The evidence, indeed, shows more than a disavowal of the trust, for it shows that the appellants acquiesced in the intestate’s assertion of title. There is evidence very clearly showing that the intestate treated the land as his own, and that the appellants dealt with him as the owner. Under this evidence there can be no recovery; for it is *237well settled that where there is a disavowal of the trust, and it is brought to the notice of the beneficiary, the statute will run.” Hubbell v. Medbury, 53 N. Y. 98, is a case where the trustee bought in, at a foreclosure sale, lands held in trust by him, and it was held that the statute began to run as soon as the trustee took possession in pursuance of the foreclosure sale, and “began openly and notoriously to occupy them as his own, asserting an individual right thereto.” Philippi v. Philippe, 115 U. S. 151, (5 Sup. Ct. 1181,) is much in point. The question came up on demurrer to a bill showing that Antonio Philippe claimed as his own since eighteen hundred and fifty-six the property alleged to have been bought with partnership or trust funds, the knowledge of which was brought home to. Angelo M. Philippi, the ancestor of plaintiff, but that from the year eighteen hundred and fifty-six down to the death of Angelo in eighteen hundred and seventy-four, eighteen years, and down to the commencement of the suit in eighteen hundred and seventy-nine, a period of twenty-three years, defendant had maintained his possession, and used and enjoyed as his own the property and its issues and profits. During all the period up to his death Angelo lived in the same town with defendant, in poverty, and some of the time in distress for want of means, but that defendant never paid to Angelo any part of the proceeds of the large property which the bill avers he was holding in trust. The court Say: “There could be no clearer line of conduct on the part of Antonio Philippe to show his repudiation of the alleged trust, and his claim of title to the alleged trust property; and all was of necessity known by Angelo. ” The statute of limitations in Alabama, where the cause of suit arose, was twenty years, and it was held that the plaintiff’s suit was barred. In this state, by section 382, Hill’s Code, a suit for the determination of any right or claim to or interest in real *238property shall be deemed within the limitations provided for actions for the recovery of the possession of real property. Under this statute it has been held that the same period which will bar an action for the recovery of real property will bar a suit touching a claim or interest therein, which is ten years: Springer v. Young, 14 Or. 285 (12 Pac. 400). So that a clear disavowal by the trustee of the trust relation, and an adverse or hostile holding of real property, for a period of ten years, the eestui que trust having had notice and knowledge thereof during the entire time, will bar a right of recovery by the eestui que trust under our statute.
Beyond this it appears that during all the thirty-two and a half years intervening from the time of the execution of the deed to Adair, W. W. Raymond lived in the immediate neighborhood, and part of the time with Mrs. Loomis, yet he never at any time asserted his alleged rights as a cestui que trust. Much of this time he lived in poverty, and upon the county and the charity of his neighbors. He himself testified that he did not broach the subject of settlement to his daughter or son-in-law for fear of disturbing the family relations of amity and friendship, and he certainly never did inform the defendant of his alleged claim. Nor is there a scintilla of- testimony in the whole case to the effect that any of the grantees, from General Adair down, have practiced any fraud or deception upon him to prevent the enforcement of his demand, or to lull him into silence and repose. The relations of the parties have greatly changed; witnesses have died, the defendant has made valuable improvements upon the land, and the land itself has greatly enhanced in value, so that equity cannot now do complete justice as between the parties. Very similar were the facts attending the Philippi case, and were held to constitute unwarranted laches. And so in this case Raymond has been guilty of laches by reason of which his claim has become stale. A court of equity will not at this late date lend its aid to grant him or the plaintiff, who is his grantee, the relief demanded.
Morris testifies that he said to Flavel, “If you purchase this place I am very much afraid you will have trouble with the Raymond folks some time or another.” And George Raymond states at one time “I told Captain Flavel that Loomis had no rights there,” and McGuire at another, “not to have anything to do with it, that Loomis had no rights there, but he had bought mother’s half and never paid for it, and was trying to steal the old man’s altogether.” Now, at the time of the purchase by defendant it is claimed that Mrs. Loomis was a trustee in *246regard to the title, and W. W. Raymond the cestui que trust, and that the deed under which Mrs. Loomis held the title was in reality a mortgage to secure a loan of long standing, the defeasance resting in parol. What is there in either of these assertions to afford Flavel a clew to this secret trust? That he might have trouble with the Raymond folk was possible, or might have been even probable, but it was not made apparent what fact would induce the trouble. And the assertion that Loomis had no rights there was surely not suggestive of a secret trust abiding in Mrs. Loomis for the benefit of Raymond. Nor was the assertion “that Loomis had no rights there,” coupled with the one “that he (Loomis) had bought mother’s half and never paid for it, and was trying to steal the old man’s altogether,” any more explicit as the statement of a fact which could be laid hold of, and which, when followed up, would lead directly to the discovery of this secret trust. The language is strong to assert that one person is trying to steal another’s land, and one would infer that an attempt was being made to commit a grievous fraud. But from such an expression, how is one going to find out of what the fraud consists ? It would be fruitless to go to Loomis and inquire of him if he was trying to steal the land, and it might well have been assumed that George Raymond told him all he knew about it. So that, taking the testimony in its strongest light, we find no suggestion of any fact of a tangible nature which bears any indication whatever of the existence of a secret trust connected with the deed, which was in effect but a mortgage encumbering the land which Flavel was about to buy.
A court of equity acts upon the conscience, and it is upon the ground of malafides that a purchaser for value is affected with notice of a prior claim. The notice must be more than would excite the suspicion of a cautious and *247wary person; it must be so clear and undoubted, with respect to the existence of a prior right, as to make it fraudulent in him afterwards to take and hold the property: Hall v. Livingston, 3 Del. Ch. 348. This case cites several others with facts very similar to the case at bar. It may be remarked, however, in passing, that the facts of these alleged warnings being given by the witnesses Morris and George Raymond to Flavel and McGuire is disputed by the latter, or at least to the extent of materially modifying and explaining their meaning and bearing. On the other hand it has been proved beyond question that Flavel paid nine thousand dollars in cash for the land and some forty head of cattle,- — all that the land and cattle were worth; that before completing the purchase he took the precaution of having the record searched as to the land, and to procure the advice of an attorney skilled in such matters. He was also careful to see that a claim of John B. Morris against Loomis, which it was thought might encumber the land, was provided for before he would consummate the purchase. Flavel found Loomis in full possession of the land, acting as owner thereof, and he himself took possession directly from Loomis. In all this we are unable to discover that Flavel acted in bad faith in any particular, and the evidence fully warrants the position that he was a purchaser in good faith, for value, and without notice of the secret equities of W. W. Raymond.
Affirmed.
Notes
This was the holding in Fleischner v. Citizens’ Investment Company, 25 Or. 119, following the Tribou case. — Reporter.