Cox v. Brown

• Decision Date: 16 June 1917
• Docket Number: No. 42/383.,42/383.
• Parties: COX v. BROWN et al.
• Court: New Jersey Court of Chancery

101 A. 260

87 N.J.Eq. 462

COX

v. BROWN et al.

No. 42/383.

Court of Chancery of New Jersey.

June 16, 1917.

Partition by Bowman S. Cox against Albert Brown and others. Decree advised for complainant.

A. H. Swackhamer, of Woodbury, for complainant. D. O. Watkins, of Woodbury, for defendants Anna R. Cox and others.

LEAMING, V. C. The only controversy in this suit is whether a certain tract of land which is described in the bill as tract No. 1 is the property of the heirs at law of Isaac G. Cox, deceased, or is the property of a certain copartnership which was composed of the said Isaac G. Cox and his brother, Bowman S. Cox, at the date of the decease of Isaac.

The record title to the property stands in the name of Isaac G. Cox, but the proofs in the case have established with a certainty amounting practically to a complete demonstration that the property was purchased at the instance of the two partners for the partnership with assets' of the partnership, and that for convenience the title was taken in the name of Isaac for the benefit of the partnership, and that since the purchase until the death of Isaac the property has at all times been treated by the two partners as partnership property. The evidence so clearly establishes these facts that any discussion of the details of the evidence seems unnecessary.

The only hesitancy in advising a decree to the effect above stated arises from a claim upon the part of defendants that complainant, the surviving partner, has allowed the legal title to stand in the name of his brother for so long a time that a court of equity should not, as against the heirs of Isaac, at this late date decree that the property is a partnership asset.

An examination of the authorities will disclose that the effect of delay in the assertion of rights in a court of equity is not only peculiarly interwoven with and dependent upon the special circumstances surrounding the individual case, but is also measurably dependent upon the nature of the primary right asserted, and also upon the nature of the relief sought.

In administering the remedy of specific performance and cancellation of instruments the period of delay which will be fatal to the relief sought does not depend upon the statute of limitations, but will be considered and determined with reference mainly to the circumstances and effect of the delay in the particular ease, and the suit may be dismissed for delay less than the period fixed by the statute limiting the pursuit of legal remedies. Lutjen v. Lutjen, 64 N. J. Eq. 773, 53 Atl. 625, was a suit of the latter nature, and the rule there defined recognizes that a period of delay less than the statutory period may be fatal when it is operative to render the court unable to feel confident of its ability to ascertain the truth as well as it could have done when the subject for investigation was recent, and before the memories of those who had knowledge of the material facts had become faded and weakened by time.

On the other hand, where the substantive right asserted is the enforcement by a cestui que trust of an express and subsisting trust, neither lapse of time nor the statute of limitations will ordinarily be allowed to defeat the relief sought. Stimis v. Stimis, 54 N. J. Eq. 17, 33 Atl. 468. But even that rule is subject to exceptions arising from conduct of the parties in relation to the trust property. See Starkey v. Fox, 52 N. J. Eq. 758, at page 768, 29 Atl. 211.

Again, where the suit is to establish and enforce a resulting trust, the statute of limitations may afford a bar to relief. McClane's Adm'x v. Sheperd's Ex'r, 21 N. J. Eq. 76, at page 79. The present suit is of that nature; for the equitable title of the partnership to the property in question results from the purchase of the property by a partner with partnership assets. But in this suit the statute of limitations has not been pleaded, and to render that statute available as a bar it should be pleaded. 3 Daniel's Ch. PI. & Pr. § 2116, note; 1 Daniel's Ch. PI. & Pr. 781.

But relief may be denied in equity in all cases of the nature above referred to when the claim asserted is a stale claim, and that defense need not be pleaded. In Sullivan v. Portland & Kennebec R. R. Co., 94 U. 'S....