Carter v. Carter., (No. 6433)

• Court: Supreme Court of West Virginia
• Writing for the Court: HATCHER, J.
• Citation: 107 W.Va. 394
• Parties: Lucinda M. Carter v. Ditson P. Carter et al.
• Decision Date: 21 May 1929
• Docket Number: (No. 6433)

107 W.Va. 394

Lucinda M. Carter
v.
Ditson P. Carter et al.

(No. 6433)

Supreme Court of Appeals of West Virginia.

Submitted May 14, 1929.
Decided May 21, 1929.

[107 W.Va. 394]

1. Trusts Express Trusts Are Not Subject to Statute of Frauds.

Express trusts are not subject to the statute of frauds in this state. Swick v. Rease, 62 W. Va. 557. (p. 396).

2. Limitations of Actions Limitations do Not Run Against Express Trust Until Beneficiary Has Notice of Repudiation.

The statute of limitations does not run against an express trust until the beneficiary has notice that the trustee has repudiated the trust. Ruckman v. Cox, 63 W. Va. 74. (p. 396).

3. Equity Delay Alone Does Not Constitute "Laches" Unless Placing Another at Disadvantage.

Delay alone does not constitute laches; it is delay which places another at a disadvantage, (p. 395).

Appeal from Circuit Court, Cabell County.

Action by Lucinda M. Carter against Ditson P. Carter and others. Decree for plaintiff, and defendant named appeals, and plaintiff assigns cross-error.

Affirmed.

Vinson, Thompson, Meek & Scherr, for appellant.

J. H. Strickling and R. P. Asbury, for appellee.

Hatcher, Judge:

In 1891 the plaintiff purchased a lot in the city of Huntington at the price of $500.00 on which she built a house costing approximately $2,000.00. On June 12, 1895, she conveyed the house and lot to one of her sons, O. M. Carter, who resided at that time in the East. By deed of July 1, 1895, O. M. Carter granted the property without a monetary consideration to the defendant, Ditson P. Carter, another son of plaintiff, who resided in Huntington. O. M. Carter testified

[107 W.Va. 395]

that both of these conveyances were made at the suggestion of Ditson, and that their purpose was to put the property in the hands of Ditson so that he could "readily handle" it for the plaintiff. Ditson sold the property in 1911, and this is a suit to compel him to account therefor. From a decree in favor of plaintiff, Ditson appeals.

Both in the brief of Ditson Carter and in the argument of his counsel, it was stated that the bill alleged that Ditson had "failed from the beginning to comply with the trust which the plaintiff sets up", and that the bill contained no explanation of the long delay in bringing this suit. For these reasons, it is contended the demurrer should be sustained. An examination of the bill fails to find the allegation upon which the defendant relies. The bill simply alleges the trust in her favor and that "Ditson has sold the lot and has never paid nor accounted to her therefor". The date of the sale is not alleged and no "long delay" in bringing this suit is apparent from the bill. Therefore, the demurrer was properly overruled.

It is also contended that the circuit court erred in holding that the conveyance to Ditson Carter was in trust for the plaintiff. Ditson denies the trust and testifies that the conveyance was...