137 F. 467 | 8th Cir. | 1905
after stating the case as above, delivered the opinion of the court.
The purpose, of the suits was the annulment of the orders of sale of the state court and the deeds of the executor. The suit against Prudence Beardsley was instituted in the court below on March 25, 1902, more than four years and nine months after the saje and the delivery to her of the deed from the executor. The suit against Mary A. Schoppe was instituted March 26, 1902, more than five years after the sale and the delivery to her of the executor’s^ deed.
Among the grounds specified in the demurrers to the bills of complaint were the bar of the statute of limitations and the laches of the appellants.
A statute of Utah provides as follows:
“No action for the recovery of any estate sold by an executor or administrator in the course of any probate proceeding, can be maintained by any heir or other person claiming under the decedent, unless it be commenced within three years next after such sale. An action to set aside the sale may be instituted and maintained at any time within three years from the discovery of the fraud or other lawful grounds upon which the action is based.” Comp. Laws 1888, § 4193; Rev. St. 1898, § 2870.
To escape the bar of the statute, or rather to evade the application of the equitable doctrine of laches, the appellants averred in their bills of complaint that the executor acted fraudulently, and also that they had no notice or knowledge of the orders of the state court or of the fraudulent acts of the executor resulting in the sale and conveyance of the property until within a few months of the institution of their suits. They now contend that those averments made their bills of complaint secure from the attack of the demurrers.
There was, however, an entire absence of averment of substantive facts justifying the charge of fraud; and in such a case the mere use, by the pleader, of the terms “fraudulent” and “fraudulently” signifies nothing. St. Louis, etc., Ry. Co. v. Johnston, 133 U. S. 577, 10 Sup. Ct. 390, 33 L. Ed. 683; Moore v. Greene, 19 How. 69, 72, 15 L. Ed. 533; Moss v. Riddle, 5 Cranch, 351, 3 L. Ed. 123. Viewing the bills of complaint in the aspect most favorable to the appellants, it does not appear- that the executor acted otherwise than in the utmost good faith. A misconception of power or authority, unaccompanied by corrupt or improper motive, is not fraud. When the ¿xecutor applied for the orders of sale of the property he stated the condition of the estate and his previous conduct of its affairs truthfully and in most commendable detail. Everything that he did was reported to and met with the judicial sanction of the state court in which the estate was being administered ; and upon the showing which he made—and it is not claimed that it was false in fact—the court ordered the property to be sold. The sales were made, reported to, and confirmed by the court, and the deeds were duly executed. If it were true that the sales were.
The appellants also contend that the statute of limitations had not run, and that they are not subject to the charge of ladies because they did not until recently discover the existence of the proceedings of the' state court and the alleged defects therein upon which they rely to defeat the orders of sale and the deeds. It appears from the averments of the bills of complaint that they knew of the will of the testator, its provisions, and the granting of the letters testamentary in 1883. They therefore knew that administration upon the estate had begun and was in course. They were charged with knowledge that their title to the property devised to them might in certain contingencies be devested under the authority of a statute of Utah, which provided:
“In a specific devise or legacy tlie title passes by the will, but possession can only be obtained from the personal representative; and he may be authorized by the court to sell the property devised and bequeathed in the cases herein provided.” Rev; St. 1S98, § 2S10.
The proceeding of administration was in the nature of a proceeding in rem, and in a sense the appellants were parties thereto. Everything they now complain of appeared upon the public records. There was no fraud, no deception, no concealment, nor were the matters of which complaint is made of such a character that they would ordinarily remain secret. Under these circumstances it is a misapplication of terms to say that the grounds of action were discovered years after they arose and appeared upon the records of the court. Discovery as employed in a statute or equitable rule of limitations and knowledge are not convertible terms, nor does the former mean the result of a resort at leisure to known sources of information. The possession of the means of knowledge is equivalent to knowledge itself. A party who has the opportunity of knowing the facts of which he complains cannot avail himself of his inactivity, and thus escape the imputation of laches. The grounds of attack against the validity of the orders of sale and the executor’s deeds were matters of record. They had notice of the pendency of the administration proceedings sufficient to excite their attention and to put them on guard as to the course thereof. Under these circumstances they must be deemed to have had actual knowledge of what the records showed. The Lady Washington Col. Co. v. Wood, 113 Cal. 482, 45 Pac. 809; Shain v. Sresovich, 104 Cal. 402, 38 Pac. 51; Moore v. Boyd, 74 Cal. 167, 15 Pac. 670; Hecht v. Slaney, 72 Cal. 363, 14 Pac. 88; Norris v. Haggin, 136 U. S. 386, 392, 10 Sup. Ct. 942, 34 L. Ed. 424; Wood v. Carpenter, 101 U. S. 135, 139, 25 L. Ed. 807; St. Paul, etc., Ry. Co. v. Sage, 49 Fed. 315, 322, 1 C. C. A. 256; Percy v. Cockrill; 53 Fed. 872, 4 C. C. A. 73; Wetzel v. Transfer Co., 65 Fed. 23, 12 C. C. A. 490; Swift v. Smith, 79 Fed. 709, 25 C. C. A. 154; Rhino v. Emery (C. C.) 65 Fed. 826.
It will be observed that the Utah statute authorizes the maintenance of the action at any time within three years from the discovery of the fraud or other lawful grounds upon which the action
The appellants claim that they were ignorant of the matters complained of until November 1, 1901. This was nearly 18 years after the admission of the will to probate and the issue of the letters testamentary; nearly years after the entry of the orders for family allowance upon which, in part, the subsequent orders of sale were based; more than years after the order of sale in one case, and more than 5 years in the other. In each case the sale was made and the deed was executed shortly after the entry of the' order. It does not appear that during these years the appellants took any steps or made any inquiry for the ascertainment of the patent facts or the protection of their interests. The sole excuse presented in the bills of complaint is that they were nonresidents of and absent from Utah, and such excuse is insufficient either in law or equity. Whether time runs against the assertion of their claims cannot be made to depend upon their proximity to or remoteness from the seat of the court whose orders are in question. There is no such quality in distance from the location of public records as would enable us to say that those living within the state are bound to diligence while those living in neighboring states may rest secure without care or inquiry.
In proposed amendments to the bills of complaint it was averred that one of the appellants was a minor until about 15 months before the suits were commenced. It is well settled that under the rule in Utah and in California, from whence the Utah law was taken, the statute of limitations in cases of this character runs during the minority of the party affected. Jenkins v. Jensen, 24 Utah, 108, 66 Pac. 773, 91 Am. St. Rep. 783; Dennis v. Bint, 122 Cal. 39, 54 Pac. 378, 68 Am. St. Rep. 17; Meeks v. Olpherts, 100 U. S. 564, 25 L. Ed. 735; Meeks v. Vassault, 3 Sawy. 206, Fed. Cas. No. 9,393.
The appellants did not institute their suits within the time specified in the statute. There are no exceptional conditions or unusual circumstances attending the cases as presented which make it inequitable to follow the statutory rule of limitation. The duty of the Circuit Court was therefore clear, and its action was right.
The decrees are affirmed.
NOTE.—The following is the opinion of the court below (MARSHALL, District Judge):
On October 23, 1883, Jonathan M. Williamson died testate, being then a resident of Salt Lake county, Utah. By his last will he appointed Joseph R. Walker and Boyd Park as his executors, and devised the real estate in controversy in this action, together with other real estate, to his widow for life, and the remainder to the plaintiffs herein and their immediate predecessors in interest. Besides leaving real estate of considerable value he left sufficient personalty to more than pay his debts, the reasonable costs of administration, and a family allowance limited to the time reasonably necessary to administer his estate. The will of decedent was admitted to probate, and letters testamentary thereon were on the 5th day of December, 1883, duly issued to Joseph R. Walker and Boyd Park. They continued to act as executors
In the bill of plaintiffs the foregoing facts are in substance statedi and a decree is sought setting aside this sale, which is claimed to be void on the following grounds: (1) That the petition praying for the sale was made by one executor alohe and was not with the assent of his co-executor; (2) that no necessity for the sale was shown; (3) that four full weeks’ publication of notice was not had prior to the day fixed by the court for the showing of cause against the petition; (4) that the order of May 17, 1S95, granting the family allowance, was void, and it was the only basis for an order of sale.
It is not claimed in the bill that the defendant colluded or connived in any way with the executor, or did not pay a fair price for the premises sold, or had actual notice of any irregularity or informality in the proceedings leading up to the sale.
