Sheldon v. Sheldon

3 Wis. 699 | Wis. | 1854

Jhj tlie Court,

Wnrrov O. J.

There can be no doubt that the facts stated in the bili and admitted in the answers, or proved I / tlie testimony,-¡how tliat Benjamin Sheldon was th- (-raster of che complainant in respect to .the land in dispute,- and that consequently the title wont to hh heirs subject to the trust. ■ Admitting that the substitution, of Benjamin K. as the agent to select and purchase the lands, would have entitled the complainant to refuse the land and recover the ’money, there is Sufficient evidence of a ratification of the acts of the former by the latter' to bind all the parties. . T'10 dispute between them appears to have arisen solely in regard to the proportion of the expenses, of selecting and purchasing the land, which the complainant ought to pay and not in relation to the main question in the case, which is, whether the complainant is entitled to a portion of the land purchased.

We do not think that the commencement of the suit in Massachusetts by the complainant against the administrator of Benjamin Sheldon, to recover the4' money, changes the aspect of this question. If the suit had been prosecuted to a judgment, and a recovery of the money had taken place, undoubtedly the rights of the parties would have been changed. But this was not the case.

It appears from the testimony of the attorneys of the parties, that the suit was settled, and that the basis of the settlement was an agreement that the complainant should receive a deed of his proportion of the land, the parties agreeing to refer the question of expenses to the determination of arbitrators, This of itself is sufficient evidence of a ratification of the acts of Benj amin II. Sheldon by the complainant, to determine the question.

It is true that some or all of the defendants, aver in their answers that the agency of Benjamin B,. was disavowed by the complainant, but this averment is not responsive to any thing contained in the bill, and is not therefore, to be considered as testimony.

The defendants contend that the original contract set out in the bill, and which is the foundation of the complainant’s claim, has been cancelled. For proof of the fact of cancellation, we are referred to the answer of Henry A. Sheldon, who states the fact positively of his own knowledge ; and to the answer of the otherl defendants, who state the same fact, upon « • * jl information and belief. If this part of the answer of jjenl-y a. Sheldon was responsive to the bill of com-piaint, we should be obliged to regard it as testimony, which could not be overcome without evidence to contradict it, equivalent to the testimony of two credible witnesses. But as the case stands we cannot regard it in the light of testimony, as it is not responsive to any thing which is contained in the bill. The defendants were not specifically interrogated in relation to the contract, and the bill does not any where negative the cancellation. It alleges nothing upon the subject. It is true that it sets out the making of the contract, alleges its loss, and treats it as a contract in force. But this does not entitle the defendants to aver the cancellation in their answer, and then insist that their averment is testimony. It is a fact set out by them as a defence to the suit, and must be proved like other facts.

The defendants rely also, upon the statute of limitations ; the land having been purchased in the year 1836, and Benjamin Sheldon being then (if ever) under obligation to convey, it is insisted that the statute of limitations is a bar.

Section twenty-seven of chapter one hundred and twety-seven of the Revised Statutes, we think must control this question. That provides that bills for relief in case of the existence of a trust, not cognizable by the courts of common law, “ shall be filed within ten years after the cause thereof shall accrue, and not after.”

It is insisted by the complainant, that as this provision was made by the present Revised Statutes which went into effect in 1850, the ten years commenced at that time. But it is to be remembered that this is a re-enactment of the statute of the tern-tory of Wisconsin, passed in 1839, and that the act of the State legislature which repeals the act of 1839, took effect at the same time that the act of 1850 became operative. We, however, give no opinion upon this question, nor do we decide that the act of 1850, if it had been the first legislative provision upon the subject, would not have been a bar, if the cause of action in this case had accrued more than ten years before filing of the bill. See the cases of Wight vs-. Oakley et al., 5 Met. R. 400 ; Ross et al. vs. Duval et al., 13 Pet. R. 45 ; People vs. Supervisors of Columbia, 10 Wend. R. 363 ; Smith vs. Harrison, 22 Pick. R. 430.

But we do not think that the cause of action in this case accrued more than ten years before the commencement of this suit, so as to be barred by the statute. We cannot suppose that the legislature intended to allow a trustee to plead the statute in bar of a bill filed, to compel the performance of a trust, when he has acted as trustee ten years, with the consent, and at the request of the cestui que trusts and all persons interested in the trust property. A per son may be appointed a trustee and may hold real estate as such, for the purpose of accomplishing objects, which cannot be realized within ten years. To hold that, the trustee in such a case might plead the statute in bar ot a bill filed to compel the performance of the trust, although he might have faithfully performed his duty as trustee until the lapse of ten years, would be doing injustice to the spirit of the statute.

We think that in a case of this kind, the “ten years” commenced with the denial of the trust, or the setting up of a claim to the trust property, by the ^nstee jn fijg ovm right. So long as he claims to hold p1<0p81gy ¡n h¡3 fiduciary character, and performs the duties which were devolved upon him by the ao-ceptance of the trust, it cannot properly be said that a bill for “ relief” may be filed against him. Rush vs. Barr, 1 Watts, R. 110 ; Pratt vs. Oliver et al., 2 McLean, R. 318.

By applying- these principles to this case, we are satisfied that the complainant’s right is not barred by the statute. Woman find no denial of the trust by Benjamin Sheldon, in his life time, nor by his heirs or legal representatives, till within iten years. Indeed, it appears, that as late as the year 1843, a suit at law pending in Massachusetts, was settled upon the basis that the complainant’s share of the land in dispute should be conveyed to him. This was an express recognition of the trust, and is within the time limited by the statute, the bill in this case having been filed in the year 1351.

Upon the whole, we are satisfied that the decree of the court below must be affirmed.