Francis v. Gisborn

• Decision Date: 25 November 1905
• Docket Number: 1655
• Court: Utah Supreme Court
• Parties: FRANCIS v. GISBORN

83 P. 571

30 Utah 67

FRANCIS v. GISBORN

No. 1655

Supreme Court of Utah

November 25, 1905

APPEAL from District Court, Salt Lake County; George G. Armstrong Judge.

Suit by Jewet B. Francis against Mathew T. Gisborn. From a judgment sustaining a demurrer to the complaint and dismissing the suit, plaintiff appeals.

AFFIRMED.

Warren & Davis for appellant.

APPELLANT'S POINTS.

This is an express trust and is not barred by the statute of limitations. "It is well settled, that a subsisting recognized and acknowledged trust, as between the trustee and cestui que trust, is not within the operation of the statute of limitation." (Blont v. Robeson, 3 Jones Eq. 73; Wood on Limitation, secs. 59, 60, 200 and notes; Bell v. Hudson, 2 Am. St. Rep., 794 and note; Kutz's Appeal, 40 Penn. St. 90; McGuire v. Linneus, 74 Me 344; Gilbert v. Sleeper, 71 Cal. 290; Charter Oak Life Ins. Co. v. Yisborn, 5 Utah 319; Thomas v. Glendinning, 13 Utah 48; Miles v. Thorne, 99 Am. Dec. 384 and note; Talbott v. Barber, 54 Am. St. Rep. 491; 12 Am. & Eng. Enc. of Law, 533, 535, 544; Nudd v. Powers, 136 Mass. 273; Nelson v. Carrington, 4 Munf. 332; Gibbons v. Hoag, 95 Ill. 45; Cole's Admr. v. Ballard, 78 Va. 139; Paschall v. Hinderer, 28 Ohio St. 568; Wissler v. Craig's Adm'r, 80 Va. 22; Brown v. County of Buena Vista 95 U.S. 157; Platt v. Platt, 58 N.Y. 646.)

E. D. Hoge and J. M. Hamilton for respondent.

RESPONDENT'S POINTS.

The mere delivery of property or money to one, to be held by him until the performance of an act by another, whereupon it is to be paid over to such person, otherwise to be returned, does not, independent of other equitable circumstances, necessarily create a trust of which equity has jurisdiction, but on the contrary the remedy is by action at law. (22 Ency. Plea. and Prac., sub. b, pp. 16-17; Doyle v. Murphy, 22 Ill. 502; Hayward v. Green, 82 Ill. 386; Douglas v. Martin, 103 Ill. 25.)

In cases where the jurisdiction is concurrent at law and in equity, lapse of time is an absolute bar to a suit in equity, if it would be at law. (Gadden v. Kemmell, 99 U.S. 201; Rings v. Woodard, 43 Ark. 469; Lux v. Haggin, 69 Cal. 255; Oakland v. Carpenter, 13 Cal. 540; Phalen v. Clark, 19 Conn. 421; Harris v. Mills, 28 Ill. 44; Wright v. McClaire, 3 Iowa 221; Smith v. Wood, 42 N.J. Eq. 563; Carr v. Thompson, 87 N.Y. 160; Rundle v. Allison, 34 N.Y. 180; McCarter v. Camel, 1 Barb. Ch. [N.Y.] 455; Humbert v. Rector, Trin. Ch. 7 page [N.Y.] 195; Manchester v. Manchester, 3 R. I. 237; Rafferty v. Snud, [Tenn.] 221; Graham v. Graham, 16 W.Va. 598; Hall v. Russell, 3 Saw. [U.S.] 506; Adair v. Winchester, 7 Gill & J. [Md.] 114; Hirtle v. Schwartze, 3 Md. 366; Warner v. McMillin, 131 Pa. 370.)

"Where the case is in the nature of a demand for a specific sum of money, which, upon an implied contract, the defendant holds for the use of the plaintiff, it is doubtful whether equity has jurisdiction upon the ground of trusts." (Hirtle v. Schwartze, 3 Md. 366; Adair v. Winchester, 7 Gill. and J. [Md.] 114; Olivers v. Palmer, 11 Gill. and J. [Md.] 443.)

"In cases of express or strict trusts the jurisdiction of equity is conclusive, but in cases of quasi trusts, such as bailments, deposits and implied contracts, arising from money, had and received, a court of law has jurisdiction and equity will ordinarily not take jurisdiction." (22 Ency. Plea. and Prac., sub. b, pp. 12, 14, 15, 16, 17; Taylor v. Turner, 87 Ill. 303; Hirtle v. Schwartze, 3 Md. 383; Adair v. Winchester, 7 Gill and J. [Md.] 118; Oliver v. Palmer, 11 Gill. and J. [Md.] 443.)

"The rule covers only pure or express trusts, cognizable only at equity; and the statute of limitations is available in all cases of implied, quasi or constructive trusts; or where there is a concurrent remedy at law with a limitation which applies to it. (Thomas v. Glendenning, 13 Utah 47; Dale v. Wilson, 39 Minn. 330; Kirkpatrick v. McElroy, 41 N.J. Eq. 539-551;83 Mo. 35-41; 61 Miss. 676; 6 C. E. Green, N. J. 76; Price v. Milford, 107 N.Y. 303; 90 N.C. 82; 15 S.C. 164; 6 Tenn. 471; 19 Am. & Eng. Ency. Law, note 3, 155, 156, note 1, 156, 157; Smith v. Wood, 42 N. J. 563; People v. Everist, 4 Hill [N.Y.] 71; Butler v. Jonhson, 111 N.Y. 204; Forman v. Brooks, 9 Pick. [Mass.] 242; 13 Am. & Eng. Ency. Law [1 Ed.], pp. 675, 676; notes, 1, 2, 3, pp. 675, 676; note 1, pp. 676, 677 and note 2, p. 677; 12 Am. & Eng. Ency. Law [1 Ed.], pp. 570, 571, note 1, 571; Taylor v. Holms, 14 F. 408-508; Mathews v. Simmons, 49 Ark. 468; Newson v. Carson, Bartholomew Co., 103 Ind. 526; Churchman v. Indianapolis, 110 Ind. 259; Helm v. Rogers, 81 Ky. 568; Sanford v. Lancaster, 81 Me. 434.)

If the laches of the plaintiff and the staleness of his claims is apparent from the pleadings, objection may be taken by way of demurrer. (Landsdale v. Smith, 106 U.S. 392; Spiedel v. Henrici, 120 U.S. 377; Sullivan v. Portland R. Co., 94 U.S. 811; Maxwell v. Kennedy, 8 How. [U.S.] 210; Solomon v. Solomon, 81 Ala. 505; Furlong v. Riley, 103 Ill. 628; Williams v. First Pres. Society, 1 Ohio St. 478.)

The court usually adopts, in cases to which the statute of limitations does not strictly apply, a period within which its aid must be sought, similar to that prescribed in analogous cases at law. (Kirby v. Lake Shore & M. S. R. Co., 120 U.S. 130; Hall v. Russell, 3 Saw. [U.S.] 506; Manning v. Haydon, 5 Saw. [U.S.] 379; Gist v. Packwood, 39 F. 525; Chapman v. Wilson, 4 Wood. [U.S.] 30; Gillett v. Wiley, 126 Ill. 310; 86 Ill. 445.)

After the bar of the statute has barred the debt, or he is guilty of gross laches, the interest of the creditor to fabricate evidence is strong enough to overcome any presumption that might otherwise arise from an endorsement made, or payment said to have been received by him. (Wilson v. Pryor, 44 Ark. 532; Sorrell v. Craig, 15 Ala. 789; Connelly v. Pierson, 9 Ill. 108; McMaster v. Martin, 4 La. Ann. 418; Clapp v. Ingersoll, 11 Me. 83; Roseboom v. Billington, 17 Johns [N.Y.] 182; Mills v. Davis, 113 N.Y. 243; Gibson v. Publies, 2 McCard [S. Car.] 418; Wilcox v. Pearman, 9 Leigh [Va.] 144.)

McCARTY, J., delivered the opinion of the court. STRAUP, J., concurs; BARTCH, C. J., dissents.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

Plaintiff brought this action to recover from defendant the sum of $ 4,800, and interest thereon from August 21, 1881. The complaint in substance alleges: (1) That on the 2d day of August, 1881, the plaintiff was the owner of and possessed of $ 4,800, lawful money of the United States. (2) That on said date, at Salt Lake City, Utah the defendant received from plaintiff, in trust for the plaintiff, the said money for the special purpose of paying some of said money to satisfy the debts of the plaintiff, and for the purpose of safely keeping the remainder of said money and returning same to plaintiff upon demand. (3) That said defendant has failed to pay any part of said money to satisfy the debts of the plaintiff. (4) That defendant during all the times mentioned in said complaint has mingled said money with his own, and during all of said time since receiving the same used said money in his own private business. (5) That on the 20th day of December, 1900, at Salt Lake City, Utah the plaintiff demanded of defendant an accounting and return of said money, and the defendant then and there refused to account to plaintiff and ever since has and now refuses to account to plaintiff, except the sum of $ 25, which said sum has been paid in small payments at various times; the last payment being made on the day of June, 1904. (6) A prayer for an accounting and judgment. Defendant filed a demurrer to plaintiff's complaint and alleged as grounds of demurrer, first, that said complaint does not state facts sufficient to constitute a cause of action; second, "that said cause of action is barred by subdivision 3 section 2877, and by section 2883, of the Revised Statutes of Utah 1898;" third, want of equity in plaintiff's complaint; fourth, a bar by subdivision 3 section 3144, and section 3150, of the Compiled Laws of Utah 1888; and, fifth, that plaintiff's complaint is ambiguous, unintelligible, and uncertain, in that it seeks for equitable relief without stating facts as a basis for such relief, and that the action is barred by reason of laches. The demurrer was sustained and a judgment entered in favor of the defendant, and the case dismissed. To reverse this judgment, plaintiff has appealed to this court.

McCARTY, J., after making the foregoing statement of the case, delivered the opinion of the court.

As stated by counsel for appellant in their brief, the important question presented by this appeal is, "has the statute of limitation run, or is appellant guilty of laches," and did the court err in sustaining respondent's demurrer on these grounds? Appellant contends that the facts alleged in the complaint, which, for the purpose of determining the sufficiency of the complaint, the demurrer admits to be true show that the money alleged to have been delivered by him to defendant constituted a trust fund of an express and continuing trust, and that the relation of trustee and cestui que trust was thereby created between them, and he now seeks to invoke the rule that takes such cases out of the operation of the statute of limitations. We are of the opinion, however, that the facts alleged in the complaint entirely fail to show any such relation. The gist of the complaint, when stripped of all redundant matter, is that on the 2d day of August, 1881, at Salt Lake City, Utah plaintiff delivered to defendant $ 4,800 "for the special purpose of paying some of said money to satisfy the debts of plaintiff and for the purpose of keeping the remainder and returning the same to plaintiff on demand;" that defendant failed...