Carter v. Carter.
| Decision Date | 21 May 1929 |
| Docket Number | (No. 6433) |
| Citation | 107 W.Va. 394 |
| Parties | Lucinda M. Carter v. Ditson P. Carter et al. |
| Court | West Virginia Supreme Court |
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.
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 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 a mere gift to him from his brother. Both the commissioner and the circuit court, however, have found against him on that proposition; there is ample evidence to support the finding, and we cannot say that it is wrong. McBee v. Deusenberry, 99 W. Va. 176.
Ditson then charges the plaintiff with laches. As demonstrating wherein he is prejudiced by the late assertion of the plaintiff's claim, he says that he spent several hundred dollars in improving the property believing it to be his own; that he kept no account of the rents paid him for its use, and that he does not remember the price he received for it. 0. M. Carter testified that at Ditson's request, he sent Ditson $1500.00 to be spent on improving the property. True, Ditson attempts to deny this testimony, but O. M. Carter produced a cancelled check for $1500.00 bearing Ditson's endorsement, which Ditson failed to explain. Ditson does not testify that he does not recall the rent or the approximate rent charged for the property. He is not shown to have owned but a few pieces of real estate. His failure to remember the price he received for the property in question, is, therefore, a remarkable instance of amnesia, particularly when his evidence is so positive on a great number of minor details which occurred prior to 1911. We...
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Brand v. Lowther
...because the appellee was guilty of laches. "Laches is delay which operates prejudicially to another person's rights. Carter v. Carter, 107 W.Va. 394, 148 S.E. 378 [1929]." Syl. pt. 1, Bank of Marlinton v. McLaughlin, 121 W.Va. 41, 1 S.E.2d 251 (1939). "Where a party knows his rights or is c......
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...specific statute of limitations period."). Laches is "delay which operates prejudicially to another person's rights." Carter v. Carter, 107 W.Va. 394, 148 S.E. 378 (1929). As we said in Syllabus Point 1 of State ex rel. Smith v. Abbot, 187 W.Va. 261, 418 S.E.2d 575 Mere delay will not bar r......
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Kuhn v. Shreeve
...this case. 'Delay alone does not constitute laches; it is delay which places another at a disadvantage.' Pt. 3, syllabus, Carter v. Carter, 107 W.Va. 394, 148 S.E. 378. But that alone does not cause an estoppel to arise in the circumstances of this case. We think the delay was excusable. We......
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Maynard v. Board of Educ. of Wayne County
...of the relief sought. Stated succinctly, " '[l]aches is delay which operates prejudicially to another person's rights. Carter v. Carter, 107 W.Va. 394, 148 S.E. 378 [1929].' Syl. pt. 1, Bank of Marlinton v. McLaughlin, 121 W.Va. 41, 1 S.E.2d 251 (1939)." Brand v. Lowther, 168 W.Va. 726, 737......