Bowes v. Cannon
Decision Date | 03 January 1911 |
Citation | 116 P. 336,50 Colo. 262 |
Parties | BOWES v. CANNON et al. |
Court | Colorado Supreme Court |
Rehearing Denied June 5, 1911.
Error to District Court, Boulder County; Christian A. Bennett Judge.
Suit by John Bowes, executor of James Simpson, deceased, against James Cannon, Jr., and others. There was a judgment of nonsuit, and plaintiff brings error. Reversed and remanded for trial.
Miller, Barnd & Affolter and H. M. Minor (Ernest L Williams, of counsel), for plaintiff in error.
Goudy & Twitchell, for defendant in error International Trust Company.
This suit was commenced October 28, 1902. As to certain defendants, the case was discontinued, and the only ones now remaining are the International Trust Company and John Carruthers in his capacity as one of the executors of the last will of James Simpson, deceased. Carruthers is only a nominal defendant, made so by reason of his refusal to join with his coexecutor as plaintiff. He made no appearance in the cause, and no reference will hereinafter be made to him.
From the complaint as amended, and the replication to the answer, it appears, inter alia, that on July 1, 1892, the United Coal Company, a corporation, executed its 500 first mortgage, 7 per cent., coupon bonds, of the par value of $1,000 each, payable on July 1, 1912, or, at its option, on or after July 1, 1897. At the same time the coal company, to secure the payment of said bonds, executed and delivered a trust deed conveying all of its property to defendant in error the International Trust Company, as trustee. Each bond was conditioned therein, and in the trust deed, that it should 'not become valid or obligatory for any purpose until it shall be authenticated by the certificate of the International Trust Company hereon indorsed.' The deed of trust provided, inter alia, that the bonds should be delivered to the trustee, who should certify the same to an amount not exceeding 500 bonds and 'shall deliver the same, so certified, to the coal company or to its order, * * * and the trustee shall be in no respect liable or answerable for the use of said bonds, or either of them, after the certification of said bonds and the delivery or return of the same as aforesaid.' The bonds were delivered to, and certified by, the International Trust Company in 1892. Forty-four of said bonds belonged to, and were owned by, James Simpson. August 26, 1892, the United Coal Company, in writing, instructed the International Trust Company as follows:
James Simpson died January 23, 1896, leaving a will executed the previous day, by which he gave and bequeathed to his wife 'my bonds of the president, directors and company of the United Coal Company of Denver.' Plaintiff in error, as the duly qualified executor of said will, on the 16th day of July, A. D. 1900, made demand on the International Trust Company for the 44 bonds covered by the hereinbefore designated order, which demand, it is alleged, was refused, and the International Trust Company converted the bonds to its own use, 'and neglected and refused to comply with and perform the duties and obligations imposed upon it, which it promised to do at the time it received said bonds,' by which means the bonds and the value thereof in the sum of $44,000 were wholly lost, 'and the plaintiff has been damaged thereby' in such sum, together with the interest accrued upon said bonds, for which, and other proper relief, judgment is prayed.
The defendant admitted the reception, certification, and holding of the bonds as alleged, the direction to hold and deliver to James Simpson or order, denied the value of the bonds, and pleaded, among other things, the six-year statute of limitations, and the delivery of the bonds in 1892 to J. H. Simpson, the authorized agent and attorney in fact of James Simpson, and with the latter's full knowledge, consent, and ratification. At the close of plaintiff's case, the defendant moved for judgment of nonsuit on the ground of insufficiency of evidence, and the statute of limitations, which was sustained and judgment entered accordingly. To reverse that judgment this suit is prosecuted.
After a careful inspection and consideration of the record, we are clearly of the opinion that the evidence on behalf of plaintiff was sufficient to support a judgment in his favor, if one had been entered, unless the cause of action be barred by the statute of limitations.
Counsel on either side discuss at considerable length the distinction between trusts which are, and those which are not, within the statute of limitations. In its technical sense, a 'trust' is the right, enforceable solely in equity, to the beneficial enjoyment of property, the legal title of which is vested in another. It implies the separate coexistence of the legal and the equitable title. In a sense, the perfect ownership is segregated into its constituent parts with the legal title and the equitable vested in different persons at the same time. Bispham's Principles of Equity (6th Ed.) p. 52, par. 49. In its more comprehensive sense it embraces every bailment, every transaction by an agent or factor, every deposit, and, indeed, every matter in which the slightest trust or conflidence is reposed.
Certain causes of action, though under the comprehensive rule they be trusts, and, in a sense, equitable, are, nevertheless, brought within the operation of the statute of limitations. Sections 2900, 2909, Mills' Ann. St. It is only those causes of action of which a court of equity has peculiar and exclusive jurisdiction, and which are not cognizable in the courts of common law, that are excluded from its operation. Section 2910, Mills' Ann. St. Whenever the subject-matter of a trust is such that it could have been sued for in the common-law courts, the statute of limitations may be insisted on as a bar, although the remedy in the particular case is pursued in equity. But if the subject-matter of a trust is such that the courts of common law would not have had jurisdiction thereof, but the matter is peculiarly and exclusively the subject of equity jurisdiction, it is not within the operation of the statute. That is, if the nature of the cause of action, wheher it have the characteristics of a trust or is lacking in that respect, is such that there is a concurrent remedy at law and in equity, it matters not in what form relief is sought, the statute of limitations may be applied; but, if the cause be cognizable only in a court of equity, it cannot be affected by the statute. Such is the effect of the several statutory provisions, and likewise the adjudicated cases. Murray v. Coster, 20 Johns. (N.Y.) 576, 11 Am.Dec. 333; Kane v. Bloodgood, 7 Johns. Ch. (N.Y.) 90, 11 Am.Dec. 417.
Under the circumstances of this case, the trust and confidence reposed by Simpson in the trustee were probably sufficient to give jurisdiction to a court of equity, yet it is nevertheless certain that plaintiff could have sued at law, and the jurisdiction in equity was not exclusive. Colburn v. Riley, 11 Colo.App. 184, 52 P. 684. Therefore it was proper to plead the statute of limitations, and, if the cause of action accrued more than six years prior to the institution of this suit, the cause is barred thereby. C. F. & I. Co. v. Chappell, 12 Colo.App. 385, 394, 55 P. 606; Dunne v. Stotesbury, 16 Colo. 89, 26 P. 333.
Defendant contends that the cause of action accrued to plaintiff immediately upon the delivery of the bonds by the trust company to one unauthorized to receive them, though plaintiff had made no demand therefor, and had no knowledge of the delivery.
It is not certain there was sufficient evidence before the court when...
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...transaction constituted a bailment, the rule in Colorado is, the statute does not begin to run until after the demand. Bowes v. Cannon, 50 Colo. 262, 116 P. 336, 339; Schwartz' Estate v. Silvey, 101 Colo. 336, 73 P.2d 994, But, where a demand is a condition precedent to the right to bring a......
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...v. Comstock, 8 Cir., 121 F. 620, 61 L.R.A. 176. Colorado courts have often embraced this concept of equity jurisprudence. Bowes v. Cannon, 50 Colo. 262, 116 P. 336; Walker v. Bruce, 44 Colo. 109, 97 P. 250; Bohm v. Bohm, 9 Colo. 100, 10 P. 790; Botkin v. Pyle, 91 Colo. 221, 14 P.2d Making a......
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92CA1830
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