Bend v. Marsh
| Decision Date | 23 March 1945 |
| Docket Number | 31864. |
| Citation | 18 N.W.2d 106,145 Neb. 780 |
| Parties | BEND v. MARSH et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The rule obtains in this jurisdiction that equity will not afford relief if the complainant has a remedy by statutory proceeding in the original action, and that to be entitled to equitable relief against the enforcement of a judgment procured by fraud the party must not have neglected to avail himself of a statutory remedy.
2. The accrual of a cause of action means the right to maintain and institute a suit, and whenever one person may sue another, a cause of action has accrued and the statute begins to run, but not until that time. So whether at law or in equity, the cause of action arises when, and only when, the aggrieved party has a right to apply to the proper tribunal for relief.
3. Where it appears from the statement of facts in the petition that the cause of action is on its face barred by the statute of limitations, and there are no allegations tolling the statute, a demurrer can be properly interposed to such cause of action.
4. Where the laches of the plaintiff and the staleness of his claim are apparent from the petition, objection may be taken by demurrer.
5. The interest of the beneficiary in the trust property is not cut off by a transfer by the trustee in breach of trust to a third person who at the time of the transfer has notice that the transfer is in breach of trust, and the beneficiary can in equity compel the third person to restore the property to the trust. The third person holds the interest which he acquires by the transfer upon a constructive trust for the beneficiary of the trust.
6. In the case of a constructive or implied trust, except where the trust is imposed on the ground of actual fraud which is not immediately discovered, or there has been a fraudulent concealment of the cause of action, the statute begins to run in favor of the party chargeable as trustee as soon as the trust relation is created, or from the time when the wrong is done by which the trustee becomes chargeable, or the time when the beneficiary knew or ought to have known thereof and can assert his rights; not from the time when demand is made on the trustee, or the trust is repudiated by him, for no repudiation of an implied or constructive trust is ordinarily necessary to mature a right of action and set the statute in motion.
7. Independently of any limitation for the guidance of courts of law, equity may, in the exercise of its own inherent powers, refuse relief where it is sought after undue and unexplained delay, and when injustice would be done in the particular case by granting the relief asked.
Lloyd Dort and Coburn Campbell, both of Lincoln, for appellant.
Brown Crossman, West, Barton & Fitch and Kennedy, Holland DeLacy & Svoboda, all of Omaha, and Lester L. Dunn, of Lincoln, for appellees.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
The plaintiff, Blanch Bend, commenced this action in the district court for Saline county on August 14, 1942, naming as defendants, Bert M. Marsh, Fred H. Bruning, Bert M. Marsh and Fred H. Bruning, as executors of the estate of DeWitt C. Marsh, deceased, Arnold C. Blattspieler, as special administrator of the estate of DeWitt C. Marsh, deceased, Retta McGee Dunning, United States Fidelity and Guaranty Company, a corporation, and Massachusetts Bonding and Insurance Company, a corporation. The purpose and object of the plaintiff's petition, as amended on April 14, 1943, is to recover the sum of $10,000, with interest at six per cent from August 17, 1932, and farm lands, together with the income and profits therefrom from August 17, 1932. From an order sustaining the demurrers of all the defendants to the amended petition and dismissing plaintiff's action, plaintiff has appealed.
For the purpose of this opinion the appellant will be referred to as plaintiff and the appellees by their respective names.
The facts as alleged in the plaintiff's amended petition and admitted by the demurrers are: That in 1893 DeWitt C. Marsh and Ellen C. Marsh, husband and wife, requested the plaintiff, a niece of Ellen C. Marsh, to come from her home in Illinois, where she then resided, to the Marshes' home at Tobias, Nebraska, to work and care for them. They agreed to pay her for her services when they were through with their property. That at various times she came to Nebraska and worked and cared for the Marshes and among the years she rendered such services are the years of 1893, 1899, 1903, 1904, 1906, 1908, 1923 and 1928. In 1928 DeWitt C. Marsh took the plaintiff with him and they looked at his various farms. He then told her to choose the farm she wanted. She chose the Bruning farm, legally described as the northeast quarter of section 30, township 4, range 2, and the south 95 acres of the southeast quarter of section 19, township 4, range 2, all in Thayer county, Nebraska. Thereafter, on August 18, 1928, at their home the Marshes made, executed and delivered to plaintiff a memorandum which plaintiff accepted in full payment, accord and satisfaction for the services she had rendered with the agreement that the delivery of the property was not to be made until the Marshes were through with it for their own use. This memorandum, which plaintiff alleges has either been lost or unintentionally destroyed, is as follows:
Ellen C. Marsh died intestate on May 22, 1929, and no administration has been had of her estate. DeWitt C. Marsh died on April 15, 1932, leaving a solvent estate which included the Bruning farm and cash, over and above all obligations of the estate, more than sufficient to cover the sum of $10,000.
Plaintiff alleges that DeWitt C. Marsh, by reason of the agreement, became a trustee of the property in his lifetime and the plaintiff became the equitable owner thereof; that during his lifetime he did not make any delivery of the property to the plaintiff nor make any provision for the delivery thereof to her after his death; that upon the death of DeWitt C. Marsh, of which plaintiff had actual knowledge within a month after it occurred, the plaintiff became entitled to the possession and legal title of the property; and that Bert M. Marsh knew of the agreement but permitted the property to be included as part of the assets of the estate and distributed under the provisions of DeWitt C. Marsh's will.
After his death a will of DeWitt C. Marsh, dated March 28, 1932, and disposing of all of his property but making no provision for plaintiff as to the property here involved, was offered for probate in the county court of Saline county and over objections made to its allowance by William E. Lyon was admitted and allowed to probate on May 20, 1932. The contestant took an appeal to the district court which appeal was, on August 8, 1932, dismissed by the court. By decree of the county court, dated May 12, 1933, entered pursuant to stipulation of the residuary devisees and legatees, the remaining assets of the estate were distributed to them, they being Ira C. Marsh, Harry D. Marsh, Bert M. Marsh, DeWitt C. Marsh and Retta McGee Dunning. In this distribution the Bruning farm was included in the share of Bert M. Marsh and the personal property, including cash, was so distributed as to equalize the division of the lands. No demand was ever made by plaintiff upon any one for this property and the right thereto until in July of 1940 when demand was made upon Bert M. Marsh, who refused plaintiff's demands. This suit was subsequently filed on August 14, 1942.
Plaintiff alleges, contends and bases many of her propositions on the theory that the order of the district court for Saline county entered on August 8, 1932, in the matter of the Estate of DeWitt C. Marsh, deceased, dismissing the appeal of William E. Lyon, contestant, is void and consequently the will of deceased dated March 28, 1932, has never been allowed and admitted to probate and that there has never been a legal administration of the estate. This has been decided to the contrary in Re Estate of Marsh, Neb., 17 N.W.2d 471. Consequently, all of plaintiff's allegations with reference to the execution of the will, the lack of testamentary capacity, the exercise of undue influence and fraud practiced upon both the county court and the district court are without merit for all of these matters could have been raised either directly in the proceeding in the county court of Saline county, instituted on April 19 1932, for the allowance and admission of the will as objections thereto or subsequently by statutory proceedings within the time fixed by statute. The time within which such proceedings could be brought has long passed. The rule as announced by this court in Brandeen v. Beale, 117 Neb. 291, 220 N.W. 298, 300, is applicable: ...
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