Jones v. Henderson

• Decision Date: 16 February 1898
• Citation: 149 Ind. 458,49 N.E. 443
• Parties: JONES v. HENDERSON et al.
• Court: Indiana Supreme Court

149 Ind. 458

49 N.E. 443

JONES

v.HENDERSON et al.

Supreme Court of Indiana.

Feb. 16, 1898.

Appeal from superior court, Marion county; L. M. Harvey, Judge.

Suit by Stephen E. Jones, executor, against Rachel Henderson and others. Judgment for defendants, and plaintiff appeals. Reversed.

Chambers, Pickens & Moores, for appellant. Miller, Winter & Elam, for appellees.

HACKNEY, J.

This was a suit by the appellant against the appellees, as heirs at law and devisees of William Henderson, deceased, to enforce a debt of said decedent against the property received by them from the estate of said decedent.

The first question before us arises upon the motion of the appellees to dismiss the appeal for the reason that no appeal bond was filed. No question is made but that the appeal was under the act for the settlement of decedents' estates (Rev. St. 1894, § 2609 et seq.; Horner's Rev. St. 1897, § 2454 et seq.). Ordinarily, the failure to give bond as required by said act is cause for the dismissal of the appeal. Bank v. Culbertson, 147 Ind. ---, 45 N. E. 657;Beaty v. Vories, 138 Ind. 265, 37 N. E. 785;Galentine v. Wood, 137 Ind. 532, 35 N. E. 901;Webb v. Simpson, 105 Ind. 329, 4 N. E. 900. The motion in this case was not filed until after the appellees had joined in error, had filed briefs upon the merits of the appeal, and had delayed more than one year from the rendition of the judgment appealed from. Such conduct has been held a waiver of the right to move for a dismissal of the appeal. State v. Walters, 64 Ind. 226;West v. Cavins, 74 Ind. 265;Gilbert v. Welsh, 75 Ind. 557;Bender v. Wampler, 84 Ind. 173;Hillenberg v. Bennett, 88 Ind. 540; Elliott, App. Proc. §§ 249, 376; 1 Enc. Pl. & Prac. p. 1000. The only Indiana case at variance with the authorities cited is that of Ten Brook v. Maxwell, 5 Ind. App. 353, 32 N. E. 106, which was decided without reference to the decisions of this court upon the question. In some courts it is held, in accordance with the case just cited, that the bond is jurisdictional, and may not be waived. That rule, however, is not in harmony with our numerous holdings. The motion must therefore be denied.

The remaining question is upon the action of the court in overruling the appellant's demurrer to the answer of the appellees pleading the six-years statute of limitations. The complaint alleged that in June, 1870, William Henderson and James M. Ray were constituted trustees for the bondholders under a trust deed or mortgage executed by the Waterworks Company of Indianapolis; that the bonds to the amount of $350,000 were made payable to said named trustees, with interest payable semiannually, and due in July, 1890, and were secured by said trust deed or mortgage; that three of said bonds, each for the sum of $1,000, and numbered, respectively, 166, 167, 168, became and continued the property of the appellant's testator; that Ray died in 1880, leaving Henderson as the sole trustee; that in March, 1881, default having been made in the payment of the interest on the bonds, and Henderson, as such trustee, having instituted suit upon said bonds and to foreclose said mortgage, according to the stipulations of said mortgage, obtained judgment upon all of said bonds, including those held by the appellant's testator, and a decree foreclosing said mortgage; that the mortgaged property was sold to satisfy said decree, and, on the 20th day of April, 1881, the proceeds of the sale were paid to said Henderson, trustee, including $12,608.62, the amount due upon bonds numbered 166, 167, 168, and eight other bonds, not delivered up for cancellation. One of the stipulations of said mortgage, as to said trustees, was that “all money that they may at any time derive * * * from the foreclosure and sale” of said property “shall be held by them as trustees for the benefit of the holders of said bonds pro rata, and shall be apportioned and paid to them accordingly.” At the time of the receipt of said sum from the sheriff said Henderson executed receipts in writing, acknowledging the receipt of said special sum in full and on account of said 11 bonds, signing said receipts, respectively, “W. Henderson, Trustee,” and “W. Henderson, Trustee W. W. Co.” It was alleged that Henderson held, until his death, the proportion of said sum owing upon said bonds 166, 167, and 168, and that the same was never paid to appellant's testator, who, during his lifetime, resided in the state of Kentucky, and who died in January, 1892, in said state; that Henderson's estate was settled in March, 1895, and money and property sufficient to pay appellant's demand was received from said estate by the appellees.

Do these facts present a demand subject to the statute of limitations? For the appellant it is contended that the trust relation created by the deed or mortgage was not subject to the statutory limitation, while the appellees insist that, as to the proceeds of the sale, there was no trust relation; that Henderson became a debtor, in the ordinary sense, to the bondholders, which gave only an action at law for money had and received; and that, if a trust relation existed, it was such as was subject to the statute of limitations. One proposition thoroughly settled is that express or direct and continuing trusts are not within the statutes of limitation. Beach, Mod. Eq. Jur. § 155; 13 Am. & Eng. Enc. Law, p. 683; Raymond v. Simonson, 4 Blackf. 77;Smith v. Calloway, 7 Blackf. 86;Albert v. State, 65 Ind. 413;Rush Co. v. State, 103 Ind. 497, 3 N. E. 165;Thomas v. Merry, 113 Ind. 83, 15 N. E. 244;Langsdale v. Woollen, 99 Ind. 575;State v. Board of Com'rs of St. Joseph Co., 90 Ind. 359;Parks v. Satterthwaite, 132 Ind. 411, 32 N. E. 82;Peebles v. Green, 6 Lea, 471;Speidell v. Henrici, 15 Fed. 753, note, p. 758; 1 Am. Jur. (N. S.) p. 349; 2 Perry, Trusts, § 863; Talbott v. Barber, 11 Ind. App. 1, 38 N. E. 487;Jackson v. Landers, 134 Ind. 529, 34 N. E. 323. In 13 Am. & Eng. Enc. Law, supra, it is announced as a well-settled rule that, as between a trustee of an express trust and his cestui que trust, “no statute of limitations, nor any bar by analogy to the statute, can be relied on,” citing many authorities. In Beach, Mod. Eq., supra, it is said: “Length of time is no bar to a trust clearly established, and express trusts are not within the statute of limitations, because the possession of the trustee is presumed to be the possession of his cestui que trust.” In Raymond v. Simonson, supra, it is said: “The sound rule then is that the trusts not reached or affected in equity by the statute of limitations are technical and continuing trusts, of which courts of law have no cognizance.” Some of the authorities cited, and many others, declare the trust so exempt from the statutes of limitations to be those of exclusive equitable cognizance, or that, where the remedy of the cestui que trust is alike subject to enforcement at law and in equity, the latter jurisdiction will apply the limitation applicable in the former. Another exception to the general rule, affirmed in the authorities cited, is that, where there has been an open denial of the trust by the trustee, and notice thereof to the cestui que trust, the statutory limitation will be applied as beginning with the time of such denial and notice. This exception, however, finds its support in the conclusion that the trust relation no longer continues, since it is of the essence of the rule stated that the trust is a continuing one. The first of these two exceptions to the general rule, stated to exist where the cestui que trust has concurrent remedies at law and in equity, has application only where the trust, being an express trust, has been discontinued, or the remedy sought is not the enforcement of such trust or its incidents. That the statute, to become a bar, depends upon the broken continuity of the trust, was expressly recognized by this court in Albert v. State, supra; Parks v. Satterthwaite, supra; Raymond v. Simonson, supra; and other cases. In the last-cited case it was said, “So long as such a trust as that is...