| Mo. | May 15, 1876
delivered the opinion of the court.
Wells, the plaintiff, instituted this suit January 3, 1871, against Perry, the trustee in a deed of assignment made May 9, 1859.
The other defendants (with the exception of Paxton, the administrator of Merritt L. Young, deceased) were beneficiaries under the deed, who refused to join with the plaintiff in the prosecution of his suit, the object of which was to enforce the performance of duties, which, the petition alleges, were offered and accepted by the trustee by his signing and acknowledging the deed, taking .charge of the property conveyed, and selling the same.
This deed, though mentioned in the petition as filed therewith, and stated in the bill of exceptions to have been read in evidence, has been omitted from the record. The same may be said of the deposition of C. P. Armstrong. It appears, however, from the petition, that, by the terms of the deed referred to, it was made the duty of the trustee, to whom Merritt L. Young had transferred a stock of goods at Atchison, Kansas, worth some $30,000, to sell the same at Salt Lake City, and out of the proceeds of the sale thus made to pay all advancements, the costs and charges of transporting the goods to the point last named, then to pay the plaintiff the amount due on two promissory notes for $1,000 each, dared April 20, 1859, and due one day thereafter, executed to plaintiff by Young, afterwards to pay certain other debts, and, if there were any residue, to pay the same to the grantor in the deed, etc. It is also alleged, that Perry took the property to its point of destination and realized from its sale about $30,000, an amount sufficient to pay all advancements, charges, etc., and the debt of plaintiff; that Young died in 1864 insolvent; that Perry, though often requested, failed and refused to pay plaintiff’s claim. An accounting is asked, judgment for the amount due on the notes, and for general relief.
The answer of Perry pleaded the statutory bar of ten years; denied that he ever accepted the trust, took possession of or
The evidence in this cause abounds in contradictions; portions of the testimony give some support to the allegations of the petition, while other portions uphold the statements of the answer. But we are of opinion, after a very, careful perusal of the evidence, that it greatly preponderates on the side of the defendant, ’Perry. It would indeed be difficult to carefully examine the evidence adduced, without arriving at the confident conclusion, that the assignment made by Young was, as alleged by the answer, “a sham affaii’,” and that Wells was an active participant therein. .
Perry’s testimony, that he never took charge of the goods, was not to have any control of them, and that his acceptance of the trust was a mere formal matter, is fully supported by the testimony of Lawson, who drew the deed, that it was not contemplated that Perry ever would have such custody or control. And testimony also is not wanting strongly tending to establish that Evans, the brother-in-law of Wells, went out to Salt Lake in the double capacity of a clerk to Young and as the agent of Wells, for the protection of the latter’s inter- . ests and the collection of his debt; and that the debt was in reality collected.
And if Evans was the agent of Wells in this regard, and failed to conform to the duties imposed by his agency, this certainly can form no just ground for complaint against Perry, who had no concern in the matter.
But granting, that the transaction was bona fide, granting that Wells, in securing his own claim, had no intent to do more than to make himself a preferred creditor, which he might lawfully do, so long as cherishing no design against the rights of others ; still what excuse does he offer for his great delay in the assertion of his rights ? None whatever. According to his own theory, this is net a case of continuing trust, for the trust was broken, if broken at all, about the time of its formation ; and from that time to the institution of this suit nearly twelve years had elapsed. He says he never knew of an assignment having been made, until after the return of Evans from Salt Lake. But this occurred in October, 1859.
The plaintiff says further, that he did not sue Evans on the note on which he was the surety of Young, because he thought Perry had the proceeds of the sale of the goods and ought to pay it, and that he had been trying to collect the money from Perry for ten years.
It is a doctrine of universal recognition with courts of eqnity, that they will not countenance the prosecution of stale demands, unless there be some attendant circumstances which will excuse the seeming laches, and palliate the apparent delay.
There is nothing in this record having any tendency in this direction. So that, were we to lose sight of the statutory bar, which the defendant properly pleaded, the gross laches exhibited by the plaintiff, would of itself be equally
We shall therefore affirm the decree, dismissing the plaintiff’s petition. Judges Tories and Wagner absent; the other judges concur.