Jones v. Eureka Improvement Co

• Decision Date: 26 April 1890
• Citation: 13 S.W. 1094,53 Ark. 191
• Parties: JONES v. EUREKA IMPROVEMENT CO
• Court: Arkansas Supreme Court

13 S.W. 1094

53 Ark. 191

JONES v. EUREKA IMPROVEMENT CO

Supreme Court of Arkansas

April 26, 1890

APPEAL from Carroll Circuit Court in Chancery, Western District, J M. PITTMAN, Judge.

Decree reversed and cause remanded.

Caruth & Erb for appellant.

1. The statute of limitations never runs against a fraud, especially in a trustee. Kerr on Fraud and Mistake, p. 51; 1 Mer., 436; 9 L. J. Ch., 208. Nor is the statute always a bar in equity. 5 Pet., 485; 24 Wend. 587; 4 Corr., 717.

Courts of equity consider as done what ought to be done. If acts by fraud or willful neglect or misconduct have been prevented from being done, equity will interfere, and create a trust in favor of the party wronged. 14 Gray, 119; 18 Pa. St., 128; Perry on Trusts, sec. 181; 1 Ves., 123.

2. The deed signed by two of the trustees was sufficient to convey title. The trust was of a public nature, and the act of two was conclusive. 5 Binn., 481; 15 Ill. 256; 1 Wis. 597; 66 Penn., 202; 65 N.C. 560; 52 Vt. 78; 4 Pick. 75.

3. In equity it is sufficient to show facts and circumstances from which fraud may be presumed. 33 Ark. 425.

Crump & Watkins for appellees.

The complaint shows that the lot was claimed by the city, and by the decree in the U. S. court and the act of 1885, he was required to bring a suit within one year from February 16 1885, and unless he did so he lost all claim to same. Sec. 5 acts 1885, p. 14. The powers of the trustees ceased upon that date. The provisions in the act and decree are not simply provisions of limitation, but are conditions put by the law upon the right of plaintiff to the property claimed, and as limitations upon the power of the officers appointed by courts to make deeds. Wood on Lim., sec. 1.

It was the duty of plaintiff to allege and prove that he had settled the controversy to the lot, or had brought suit to settle it within the time required.

OPINION

COCKRILL, C. J.

This is a complaint in equity filed by Jones against the improvement company to declare a trust and compel a conveyance of real estate. According to the abstracts of the record, the suit was dismissed upon demurrer to the complaint; and the question submitted is, does the complaint state a cause of action? It may be said to allege that the plaintiff's grantors settled upon the lot in question when it was a part of the public domain; that they and he have since been continuously in possession; that the lot is in the city of Eureka Springs; that the land upon which the city is located was patented December 30, 1884, to the mayor of the city under the town site law to be held by him in trust for the occupants of the several lots and parcels of ground; that the Eureka Improvement Company brought suit against the mayor in the United States circuit court at Fort Smith, Arkansas, to set aside his title; that on the 6th of April, 1885, the parties to that suit caused a consent decree to be entered in said cause divesting the mayor of title and vesting it in three persons as trustees, viz: the mayor, the president of the Eureka Improvement Company and one John Carroll, who were to hold the title for the use of the occupants, and to execute deeds to them within the time prescribed by the State statute passed to effect the object of the town site location; that the decree further provided that at the expiration of the time fixed by the act of the legislature known as the Eureka town site act, all property remaining in the hands of the trustees should be conveyed to the Eureka Improvement Company without payment of any consideration; that plaintiff complied with all the regulations as to tender of the appraised value of his lot and proof of his right to a deed before the trustees named in the decree, and was then entitled to a deed; that a deed in proper form was signed by Carroll and the mayor as trustee, for the purpose of conveying the lot in question to him, in pursuance of the directions of the decree; but that the president of the improvement company, who was the third trustee, delayed the execution of the deed by raising objections thereto from time to time; that the reasons for his objections were finally removed, and he consented to execute the conveyance; that the deed signed by the other trustees was thereupon delivered to him along with the plaintiff's evidence of his right of ownership of the lot, for the purpose of allowing him to make therefrom certain entries in the abstract, book of the improvement company, and that it was agreed that when this was done the deed was to be delivered to the plaintiff; that this was near the expiration of the time prescribed for making deeds by the trustees; that the said president allowed the time to elapse without executing the deed, and that then, for the first time, the plaintiff was informed the title would not be made to him; that the acts of the trustees and particularly those of the president of the improvement company were a fraud upon his rights and were intended to prevent, and did prevent, him from obtaining the deed to the property; that the presence of the president of the improvement company among the trustees to determine whether he or the improvement company should have the land was in itself a fraud; that the improvement company was claiming the land by virtue of the said decree or a conveyance from the trustees named, and that he was unable to ascertain which was true. Prayer that he be invested with the legal title.

Conceding these facts to be true, the question is, ought the complaint to...