Fawcett v. Fawcett

• Decision Date: 23 May 1893
• Citation: 85 Wis. 332,55 N.W. 405
• Parties: FAWCETT v. FAWCETT ET AL.
• Court: Wisconsin Supreme Court

85 Wis. 332

55 N.W. 405

FAWCETT

v.FAWCETT ET AL.

Supreme Court of Wisconsin.

May 23, 1893.

Appeal from circuit court, Grant county; George Clementson, Judge.

Action by Elizabeth Fawcett against Joshua Fawcett and others, heirs of Joshua Fawcett, deceased, to enforce a trust in certain real estate. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

The other facts fully appear in the following statement by LYON, C. J.:

The case made by the complaint is substantially as follows: The plaintiff intermarried with one Joshua Fawcett, the ancestor of the defendants, in 1867. She had separate estate. In 1868 she gave her husband the money with which to purchase a certain 40-acre lot of land in Grant county, and directed him to take the conveyance thereof in her name. Her husband thereupon purchased the land with her money, but took the conveyance thereof in his own name. The plaintiff first learned in 1869 that he had done so. She at once disapproved his act, and requested him to cause the title to the land to be vested in her. He promised to do so, but died in 1890 without performing his promise. He left a will, which has been duly probated in the proper court, devising and bequeathing his property, in general terms, to his widow and lawful heirs in the manner prescribed by law. Such 40-acre lot was the homestead of plaintiff and her husband until he died. It does not appear that he ever asserted any right to the land, or denied that the same equitably belonged to his wife, or that he devised it specifically in his will. This action is to enforce the execution of the trust resulting to the plaintiff from the transactions stated in the complaint, and to procure the judgment of the court vesting in her the absolute title in fee to such land. The heirs at law of plaintiff's husband are the defendants to the action. It sufficiently appears from the complaint that the action was brought after the death of the plaintiff's husband, in 1890. The defendants demurred to the complaint on several grounds, among which are that the right of action is barred by the limitations contained in sections 4211, 4213, 4215, 4222, Rev. St. The circuit court sustained the demurrer on the sole ground that the action was thus barred by the statutes of limitation. The plaintiff appeals from the order sustaining the demurrer.Bushnell & Watkins, for appellant.

Clark & Taylor and P. A. Orton, for respondents.

LYON, C. J., (after stating the facts.)

There can be no doubt the complaint states facts sufficient to show that the plaintiff is entitled to enforce a resulting trust in the land in controversy; that is to say, she is entitled to have vested in her the absolute title to such land, unless she is excluded from such relief by the statutes of limitation, or by her laches in the enforcement of her right. Before the enactment of our statute of uses and trusts, she would have been entitled to assert and enforce such trust, even though she consented that the land for which she paid should be conveyed to her husband, or had she personally taken the conveyance thereof in his name. In such cases, however, the statute abolishes the trust, except as to creditors of the person paying for the land, but saves it to such person where, as in this case, the grantee named in the conveyance took it as an absolute conveyance in his own name, without the knowledge or consent of the person paying the consideration, unless a bona fide purchaser has intervened. Rev. St. §§ 2077-2088, inclusive. If this action is not barred by some statute of limitation, we do not think, under the circumstances of the case disclosed in the complaint, that laches should be imputed to the plaintiff to defeat it. Although,during more than 20 years before her husband died, she knew he had taken the conveyance in his own name, yet she was residing with him upon the land, using it as the family homestead, and, so far as it appears, he recognized and admitted her right to the land, and asserted no interest in or claim to it, hostile to her absolute ownership thereof, and the rights of no other person have intervened, to render it inequitable to enforce the trust in her favor. The heirs of her husband (the defendants) have no greater equities against the enforcement of the trust than her husband would have had if the action to enforce it had been commenced against him in his lifetime. Under these circumstances it should not be held that she ought to have endangered the peace and comfort of the family--perhaps the very existence of their home--by engaging in a lawsuit with her husband over the title to the land in question, and that her right thereto is defeated because she did not do so. Courts of equity do not impute laches by any iron rule, but allow circumstances to govern their decision in every case. And it is said: “Where the obligation is clear, and its essential character has not been affected by the lapse of time, equity will enforce a claim of long standing as readily as one of recent origin; certainly, as between the immediate parties to the transaction.” 13 Amer. & Eng. Enc. Law, 674; U. S. v. Alexandria, 19 Fed. Rep. 609, and cases cited. The controlling question in the case is, therefore, does any statute of limitation bar the plaintiff's right to maintain this action?

It is now thoroughly well settled, by authorities too uniform to require citation, and too numerous to cite here, that as between a trustee of an express trust, cognizable only in a court of equity, and his cestui que trust, concerning matters connected with the trust relation, no statute of limitation, nor any bar by analogy thereto, can be relied upon to defeat the execution of the trust, unless the full period of limitation has elapsed since the...