35 S.C. 422 | S.C. | 1892
The opinion of the court was delivered by
This was an action to recover a tract of land (350 acres), described in the complaint, as trustee of Malinda C. Sullivan, now Kay. As well as we can understand, the leading facts are as follows : Joseph Sullivan departed this life in 184-0, leaving a will, by which he devised the parcel of land in dispute as follows: “I hereby convey and deed to George W. Sullivan, to be held by him in trust, until my son, M. A. Sullivan, arrives of age, then the title to.vest in him, the following property: One tract of land, * * * for the use and benefit of my daughter, Malinda O. Sullivan, the said land to be held in trust in the same manner that my daughter, Mary Ann Epps, is,
Milton A. Sullivan, as soon as he arrived at full age, took possession of the land and held it as trustee, paying the rents to his sister, Malinda C., then an infant, up to the time of his death in February, 1865. He also left a will, which is not before us, but it was stated at the bar that it gave all his property, real and personal, without describing it, to his brothers, W. D. Sullivan and C. P. Sullivan, but requiring them to pay $50 per annum to another brother, J. Hewlet Sullivan. C. P. Sullivan qualified as executor of this will, and in 1866 filed a bill against W. D. Sullivan, J. Hewlet Sullivan,' and one Bolt (supposed to be a creditor of the testator, M. A. Sullivan), alleging an insufficiency of personal assets to pay the debts, and including in the proceeding the trust land in controversy as part of the absolute property of the testator, M. A. Sullivan. It was sold and bid off by Hew-let Sullivan, who took commissioner’s titles for the same, and gave bond and mortgage to secure the purchase money, which was not fully paid until 1879. In May, 1887, Hewlet Sullivan died, leaving a will, under the general residuary clause of which the defendants claim that the land in controversy ivas devised to them.
In 1887, Malinda C. Kay filed her petition in the Court of Common Pleas, setting forth the death of M. A. Sullivan, her testamentary trustee, and praying for the appointment of some suitable person to act as her trustee in place of her late brother, M. A. Sullivan, deceased. After proper inquiry, the court made an order appointing the plaintiff trustee, and the certificate required by the statute was attached to the original will of Joseph Sullivan. The plaintiff, as such trustee, now brings this action to recover possession of the said tract of land. (Action brought November 12, 1887.) The defendants answered, first, denying each and every allegation of the complaint; second, alleging that Hewlet Sullivan, under whom they claim, was in the exclusive adverse possession of the land, claiming it as his own, for ten consecutive years prior to the commencement of this action under a deed from the commissioner in equity; and, third, alleging that
At the close of plaintiff’s testimony, the defendants moved for a non-suit on the ground that the testimony failed to show legal title in the plaintiff, claiming that the appointment of the trustee was irregular and void, for the reason that the defendants, who had the legal title, had not been made parties. The motion was refused. Under the charge of the judge, the jury found a verdict for the plaintiff, “the land in dispute and two hundred dollars damages.” The defendants appeal to this court upon numerous exceptions, which are long, and being all presented in the “Brief,” need not be set out here.
The jury in effect found that Hewlet Sullivan purchased the land of his kinslady with full knowledge of the trust, which, doubtless, was right, for Spencer Wood testified at the trial that he ivas present at the sale by the commissioner, bidding for the land, when Hewlet Sullivan approached him and asked him if he
But it is further argued, that this doctrine only applies to direct trusts; that in constructive- trusts, where the conduct of a party fixes upon him a trust, he may plead lapse of time in analogy to the statute of limitations and prescriptions. There is such a doctrine, but, as far as I have been able to discover, it will not be allowed to a trustee who still retains possession of the property and is unable to make clear proof of adverse possession. The Chief Justice of the Supreme Court, in discussing the famous case of Cholmondeley v. Clinton, expressed the doctrine as follows : “The case was considered of the highest importance, and the opinion expressed, that both on principle and authority, the laches and non-claim of the rightful owner of an equitable estate for a period of twenty years (supposing it the ease of one who must, within that period, have made his claim in a court of law had it been a legal estate), under no disability and where there has been no fraud, will constitute a bar to equitable relief, in analogy to the statute of limitations, if, during all that period, the possession has been held under a claim unequivocably adverse.” See 10 Wheat., 174. .
It would, seem somewhat difficult to understand how one made a trustee for the express purpose of holding the property for the cestui que trust, could at the same time be regarded as holding adversely to that very same person, without any notice at any
The judgment of this court is, that the judgment of the Circuit Court be affirmed.