79 F. 709 | 8th Cir. | 1897
The decision of this court in Wetzel v. Transfer Co., 27 U. S. App. 594, 12 C. C. A. 490, and 65 Fed. 23, is fatal to the bill of the appellant in this case. In that case a land-warrant had been issued on September 30,1848, to Elizabeth Remsen, widow of George W. Remsen, and to Harriet A., Mary Ann, John W., Elizabeth, and George W. A. Remsen, children and heirs at law of said George W. Remsen, deceased, under the provisions of section 9 of the act of congress approved on February 11, 1847 (9 Stat. 123, 125, c. 8). Section 9 of that act provided in substance that, in the event of the issue of a land warrant under it to the minor children of a deceased soldier, “then the legally constituted guardian of such minor children shall, in conjunction with such of the children, if any, as may be of full age, upon being duly authorized by the orphans’ or other court having probate jurisdiction, have power to sell and dispose of such certificate or warrant for the benefit of those interested.” On October 6, 1848, Elizabeth Remsen qualified as guardian of all the children of her deceased husband, except Harriet A. who was the oldest, of them, and was about 17 years of age. On October 11, 1848, Elizabeth Remsen, the mother, without any order or authority from the orphans’ court, executed an assignment of this land warrant to Nathan C. D. Taylor,' in her own right, “and as guardian of the persons and estates of Mary Ann Remsen, John Wesley Remsen, Elizabeth Remsen, and George W. A. Remsen, minor children of George W. Remsen, deceased.” The oldest daughter, Harriet A., joined in this assignment to Taylor, who located the warrant on a tract of land, which is now situated between the cities of St. Paul and Minneapolis, and on March 20, 1850, this land was patented to him as assignee of Elizabeth Remsen, in her own right, and as guardian of the minor heirs of George W. Remsen, deceased. On May 28, 1892, John W. Remsen, who was in 1848 one of these minor heirs, and other parties who were the heirs of the other minor heirs, who were then dead, brought their bill in equity in the United States circuit court for the district of Minnesota against the parties who, by mesne conveyances, had succeeded to the title conveyed to Taylor by his patent, and prayed that the title of the minor heirs to their undivided interest in the land might be established, that the defendants might be adjudged to hold the legal title to that interest in trust for the complainants, and that they might be compelled to convey it to them. The complainants alleged and proved that none of them, except Harriet A., who joined in the assignment, knew of the issue of the land warrant to them, or of its location upon the land in question; until 1889. This court held that, “while it is true that ignorance of one’s rights will frequently serve as.an excuse in a court of equity for not bringing a suit to enforce them, yet it will never have that effect where such ignorance is fairly attributable to negligence, or to a party’s failure to make such inquiries with respect to his rights as, with- the information at his command, he ought to have made,” and dismissed the bill on account of the laches of the complainants.
Conceding, but not deciding, that the records of the deeds to and from Aye, the administrator, were notice to all parties claiming under him that he originally held the title in trust for the appellant, and that the decree of sale of the probate court was void, the appellant presents no case here which entitles her to relief in equity against a purchaser who paid $25,000 for the title to this land more than 20 years after these deeds were recorded, on the faith of the conveyances of the administrator and the appellant’s silent abandonment of the property. Aothing but conscience, good faith, and reasonable diligence can call a court of equity into action. “The strongest equity may be forfeited by laches or abandoned by acquiescence.” Peebles v. Reading, 8 Serg. & R. 493; Great West Min. Co. v. Woodmas of Alston Min. Co., 14 Colo. 90, 95, 23 Pac. 908; Sullivan v. Railroad Co., 94 U. S. 806, 811.
Counsel for the appellant invoke the principle that there can be no acquiescence and no laches where there is no knowledge, and contend that, since the appellant did not know that she had any interest in
When the appellant became of age, in 1871, she had met and was acquainted with John A. Kye, who had been the administrator of her father’s estate. She had lived for 10 yéars (from the age of 4 to the age of 14 years) in the same town, and for 4 years in the same house, with her grandfather, who liad been her guardian, and had received $1,000 from this administrator for her benefit. She knew that her father had lived and died in Pueblo county, in the state of Colorado; that he owned some property in that state; and that Kye had been the administrator of his estate. If these facts were not sufficient to excite attention and call for inquiry as to the property of this estate left unsold or improperly sold by the administrator,-we are.at a loss to know what facts wouíd have been sufficient. The least investigation in the natural and usual place to make such an inquiry would have led unerringly to a discovery, in 1871, of all the facts which the husband of the appellant learned of his own accord, and brought to her attention in 1891, without any inquiry on her part. She was not: The victim of any actual fraud or of any concealment. All the facts, on which she now relies for relief were spread upon the records of the probate court of Pueblo county, and upon the records of the register of deeds at Denver, in 187.1, open and ready for her inspection. The natural place to inquire after property of the estate of Russell, when she knew that he had lived and died in Pueblo county, in the state of Colorado, was in the probate court of that county. Án inquiry there would have disclosed a sufficient descriplion of these lots and their location, both in the inventory of her father’s estate and in the account of the administrator, to have led to a discovery of their occupation by Brown, and of the record of the deeds of them in the register’s office at Denver. Under the principle of law to which we have referred, the appellant must he charged with the knowledge, in 1871,
Another contention of counsel for the appellant is that the record of the deed of the judge of the probate court of Arapahoe county to Aye, the administrator, disclosed an express trust in favor of the appellant; and they cite the principle that neither time nor laches will bar the right to enforce such a trust, because the possession and use of the trust property by the trustee is presumed to be the possession and use of the cestui que trust, and never adverse to him. Speidel v. Henrici, 120 U. S. 377, 386, 7 Sup. Ct. 610; Lemoine v. Dunklin Co., 38 Fed. 567. The principle is sound, but it is subject to the express exception that when the trust is repudiated, and knowledge of the repudiation is brought home to the cestui que trust, the case is brought within the ordinary rules of limitation and laches. The purchase of these lots from Aye, as administrator, in 1867, the payment to him by Brown of their full value, Brown’s occupation of them as his residence, Ms improvement of them, the administrator’s deed to him in 1869, the subsequent sales and conveyances of them, the payment of taxes upon them, and their improvement by the purchasers, were - all acts of repudiation of this trust, acts utterly inconsistent with any admission of its existence. The appellant was chargeable, under the law, as soon as she became of age, in 1871, with knowledge of all these acts which had been done prior to that date; and, upon the same principle, she was chargeable with knowledge of the later acts as they occurred. This case therefore falls under the exception to the rule, and the inexcusable negligence and delay of the appellant are fatal to her recovery. Naddo v. Bardon, 4 U. S. App. 642, 682, 2 C. C. A. 335, 338, and 51 Fed. 493, 495, and cases last cited supra. Any other conclusion in ihis case would be unconscionable and inequitable. •The court in which the appellant exhibited her bill is a court of conscience, bound by its principles and inspired by its history to prevent, but never to perpetrate, injustice and wrong. The purchasers under the administrator of the estate of the appellant’s father improved this property, and held undisputed possession of it for more than 20 years after the appellant became of age. They built houses upon it. They discharged the burdens imposed upon it for its protection and for the support of civil government. Under their improvement and care, the lots advanced in value from about $1,000, in 1871, to $25,000, in 1889. MeanwMle the appellant paid no taxes and made no inquiry about her interest in the property, although all the facts lay spread upon the public records of Pueblo county, in the state of Colorado, where she knew her father lived and died seised of some property. Aeither con
The conclusion we have reached upon equitable principles is in accord with (he statutes of limitation in the state of Colorado. Those statutes provide: (1) That no person shall commence an action for the recovery of lands unless within 20 years after the right first accrued, and that, where (he land is claimed by an heir or devisee, his rights shall he deemed to have accrued on the death of 1ns ancestor (Sess. Laws 'Colo. 1893, pp. 327-330, §§ 1, 3); and (2) that bills for relief on the ground of fraud shall be filed within three years after (he discovery by the aggrieved party of the facts constituting the fraud, and not afterwards (Mills’ Ann. St. Colo. 1891, § 2911). It is plain that section 1, supra, would have barred the appellant from maintaining an action for the recovery of these lots when she commenced (Ids suit, becuse it was then 30 years after her right had accrued, and 22 years after she became of age.
Counsel for the appellant contend, however, that the execution and delivery of the administrator’s deed to Brown was in law a fraud upon the appellant, because it vas a breach of duty by a trustee; and from this they argue that this suit is governed by section 2911, and is not barred, because the appellant did not discover this fraud until within 3 years before tlie commencement of the suit. But if the execution of the administrator’s deed and the repudiation of the trust thereby were "facts constituting a fraud,'’ within tlie meaning of this section, the appellant was, as we have shown, chargeable with knowledge of these facts in 1871, 22 years before she commenced this suit, and her cause of action was therefore barred by this section. The provisions of this statute bar a suit, not only after 3 years from actual knowledge of facts constituting the fraud, but also after 3 years from knowledge of facts which would put a person of ordinary prudence upon an inquiry, which, if pursued with reasonable diligence, would lead io a discovery of the facts constituting the fraud. Pipe v. Smith, 5 Colo. 146, 159; Rugan v. Sabin, 10 U. S. App. 519, 534, 3 C. C. A. 578, 582, and 53 Fed. 415, 420; Burke v. Smith, 16 Wall. 390, 401; Parker v. Kuhn, 21 Neb. 413, 421, 426, 32 N. W. 74; Wright v. Davis, 28 Neb. 479, 483, 44 N. W. 490.
The decree below must be affirmed, with costs; and it is so ordered.