Cook v. Elmore

• Decision Date: 18 March 1918
• Docket Number: 856
• Citation: 171 P. 261,25 Wyo. 393
• Parties: COOK v. ELMORE
• Court: Wyoming Supreme Court

171 P. 261

25 Wyo. 393

COOK v. ELMORE

No. 856

Supreme Court of Wyoming

March 18, 1918

ERROR to the District Court, Campbell County; HON. C. H. PARMELEE Judge.

Action by Lydia H. Elmore as executrix and administratrix of Mike Elmore, deceased, against Claude K. Cook to recover rents and profits of land and to enforce a trust. From a judgment for plaintiff, defendant brings error. Other material facts are stated in the opinion.

Affirmed in part and reversed in part.

LaFleiche & Diefenderfer, for plaintiff in error.

This action was brought under the provisions of Section 4295, Comp. Stats. 1910. Such actions are barred after ten years from the time the cause of action accrues. This action accrued, if at all, when property was conveyed to defendant. The petition discloses that the action was barred and the demurrer should have been sustained. If the action was brought to establish a resulting trust, it accrued on the date of the taking of the deed. To establish a resulting trust, two elements must appear: First, that the purchase money belonged to Elmore; second, that it was furnished to purchase the property for him. A resulting trust must arise at the time of execution of the conveyance. (Vol. I, Beach on Modern Equity, Section 223; Keuper v. Mette's Heirs, 88 N.W. 218; Strong v. Messinger, 148 Ill. 431, 36 N.E. 617; Pom. Eq. Jur., Section 1040; Dodge v. Thomas, 266 Ill. 76, 107 N.E. 261; Phillips v Phillips, 86 A. 949; Drake v. McDonald, 137 N.W. 863; Veeder v. McKinley-Lanning L. & T. Co., 61 Neb. 892; Metropolitan Trust & Savings Bank v Perry, 102 N.E. 218; Chambers v. Emery, 45 P. 192; Bank v. Campbell, 30 P. 357; Berla v. Strauss, 75 A. 763.) The evidence is insufficient to support the decree entered by the court below. (Chambers v. Emery, supra; 39 Cyc. 167; Reynolds v. Blaisdell, 40 A. 42; In re. Mahin's Estate, Romp, et al., v. Mahin, et al., 143 N.W. 420; Cottonwood County Bank v. Case, et al., 125 N.W. 298; Summers v. Moore, 18 S.E. 712; Jones v. Hughey, 24 S.E. 178; Keith v. Wheeler, 151 S.W. 284; Easter v. Easter, 151 S.W. 413; Wallace v. Dunton, 139 S.W. 345; 39 Cyc. 166, Subd. 4.) Defendant and his successors are guilty of laches. (Teall, et al., v. A. Schroder, et al., 158 U.S. 173, 39 L.Ed. 938; Gillespie, et al., v. Cooper (Neb.), 55 N.W. 302; Bishop, et al., v. Knowles, et al. (Iowa), 5 N.W. 139; Laird v. Kilbourne, et al. (Iowa), 30 N.W. 9; Allan, et al., v. Wisconsin, I. & N. Ry. Co., et al., 57 N.W. 1121; St. Paul, S. & T. Ry. Co. v. Sage, 1 C. C. A. 256.) Every presumption that is reasonable must be indulged in favor of the legal title which is clearly expressed by the deed long appearing of record.

Metz & Sackett, for defendant in error.

This is not an action of ejectment, nor for the recovery of title because plaintiff claims title. No cause of action accrued until after September 5th, 1911, after the trust relation was ended and Cook made his first claim for the land. If the doctrine of laches is applicable at all, it is against Cook, who allowed Elmore and his heirs to use the land for so many years, acquiescing in their claim of title. The doctrine has no application as against Elmore, and the cases cited in the opposition brief do not support their contentions in that regard. The evidence clearly establishes a resulting trust in favor of defendant in error. Elmore could not have brought ejectment proceedings. Neither Elmore nor his heirs ever had a remedy at law. The statute of limitations would not commence to run until an action at law could have been brought. Any remedy that Elmore or his heirs had was equitable and against solely equitable claims the statute of limitations does not run. Limitations will be applied only where there is concurrent jurisdiction at law. (25 Cyc. 1057; Elling v. Marx's Executor, 4 F. 673; Weltner v. Thurmond, 17 Wyo. 308.) The following cases support the judgment below: Fawcett v. Fawcett, 85 Wis. 332, 39 Am. St. Rep. 844; Haney v. Legg, 129 Ala. 619, 87 Am. St. Rep. 81; Reynolds v. Sumner, 126 Ill. 58, 9 Am. St. Rep. 523, 527-529; Appeal of Corr., 62 Conn. 403, 26 A. 478, 1st column, 479; Davis v. Davis, 20 Tex. Civ. App. 310, 49 S.W. 726; Reitz v. Reitz, 80 N.Y. 538; Oliver v. Chance, 11 S.E. 655; Faylor v. Faylor, 136 Cal. 92, 68 P. 482; Snodgrass v. Snodgrass, 58 South, 199; Girard v. Futterer, 4 So. 292; Werborn v. Austin, 8 South, 280; Bacon v. Rivers, 106 U.S. 99; 27 L.Ed. 69.) The demurrer did not raise the statute of limitations. The petition showed the land to have been purchased with Elmore's money. Improvements placed on the land over protest of Mrs. Elmore could not be used by Cook to his advantage. (Mexico Wyo. Co. v. Valentine, 237 F. 534.) The only contention argued as to limitations was that the action was one for fraud. The action is not of that character and the four-year statute of limitations has no application.

LaFleiche & Diefenderfer, for plaintiff in error--supplemental brief.

The action is one to recover possession of real property by virtue of an equitable title and the limitation prescribed by Section 4295, Comp. Stats. 1910, applies. (Nuckols, et al., v. Stanger, 153 S.W. 931; Bell County v. Felts, et al., 120 S.W. 1065; Stafford v. Stafford, 70 S.W. 75; Bradley v. Bradley, 127 P. 1044; Martin v. Cochran, et al. (Kan.), 106 P. 45; Bell v. Bank, 94 P. 889; Smith v. Clark, 248 Ill. 255, 93 N.E. 727; 25 Cyc. 1025-1155.) If the action be construed to be one for fraud, the four-year limitation prescribed by Section 4300 applies. (17 R. C. L. 794-795; 39 Cyc. 606; Speidel v. Henrici, 30 L.Ed. 718; Lammer, et al., v. Stoddard, 9 N.E. 328.) Implied trusts are within the statute of limitations, and the statute begins to run from the time the person becomes chargeable as trustee by implication. (Beecher v. Foster, et al., 42 S.E. 647; Stillwater Co. v. City of Stillwater, 68 N.W. 836.) Defendant claimed the land adversely as early as the year 1897, and the statute at least ran from that time. (Otto, et al., v. Schlapkahl, 10 N.W. 651; Parks v. Satterthwaite, 32 N.E. 82; Barker v. Hurley, 63 P. 1071; Wright v. Davis, 26 A. S. R. 347; Clarke v. Van Loan, 75 A. S. R. 219; Lide v. Parks, 135 Ala. 131.) No repudiation of an implied or constructive trust is necessary to set the statute of limitations in operation. (Norton v. Bassett, 154 Cal. 412, 97 P. 894.) A general demurrer raises the question as to whether the petition shows on its face that the action was not commenced before the statutory bar. (Columbia Assn. v. Clause, 13 Wyo. 166.) If the action is one based upon fraud, then the rule that the recording of the deed is constructive notice of an adverse claim applies. But it is our belief that Section 4295, Comp. Stats., is controlling.

BEARD, JUSTICE. POTTER, C. J., and BLYDENBURGH, J., concur.

OPINION

BEARD, JUSTICE.

Lydia H. Elmore, as executrix of the will of Mike Elmore, deceased and as administratrix of the estate of said Mike Elmore, deceased, brought an action against Claude K. Cook alleging, in substance, in her petition, that Mike Elmore died on the 10th day of May, 1910, leaving a will which was duly admitted to probate in the State of New York June 9, 1910, and that on June 10, 1910, letters testamentary and of administration were issued to said Lydia H. Elmore as executrix of said will, and that the administration of said estate in the State of New York is still pending. That said will was duly probated in the District Court of Campbell County, Wyoming, August 4, 1913, and ancillary letters testamentary and of administration were issued to her for the administration of said estate in Wyoming; that she duly qualified and is still acting as such. That in 1901 said Mike Elmore employed and directed the said Cook to purchase for him certain lands situated in said Campbell County, and in pursuance of said arrangement said Cook purchased said lands and received a deed therefor November 21, 1901, which deed was duly recorded in the office of the county clerk and ex officio register of deeds in said county. That said lands were purchased for, and with the funds of said Mike Elmore, and that the deed should have been taken in his name, but was erroneously taken in the name of said Cook. That the money for the recording of said deed and for the payment of the taxes on said land, until the time of his death, was furnished by said Elmore. That since his death the taxes have been paid by plaintiff. That from November, 1901, until the time of his death said Mike Elmore occupied and used said lands. That after the death of said Mike Elmore, the said Cook without the consent of plaintiff, or the heirs of said Mike Elmore, deceased, wrongfully entered into possession of said lands and excluded plaintiff therefrom and still continues so to do, and claims to be the absolute owner thereof, and has had the use and benefit of said lands since May 10, 1910. That said Mike Elmore did not know that the deed to said land was taken in the name of said Cook, and that as soon as plaintiff learned that Cook claimed said land and at her first opportunity after her said appointment, she brought the action "to compel the conveyance of said land by the defendant to the plaintiff and to decree the title of said lands to and in the said estate." That the reasonable rental value of said land is about $ 150.00 per annum, and that plaintiff has been damaged by the wrongful withholding of said lands by defendant in the sum of $ 600.00, no part of which has been paid. That the title of record of said lands still continues in the name of defendant and that there are no encumbrances of record against the same, or known to plaintiff. The plaintiff prayed "judgment against the defendant that the defendant be required to execute a good and sufficient conveyance...