Norfleet v. Hampson

• Decision Date: 17 February 1919
• Docket Number: 115
• Citation: 209 S.W. 651,137 Ark. 600
• Parties: NORFLEET v. HAMPSON
• Court: Arkansas Supreme Court

209 S.W. 651

137 Ark. 600

NORFLEET v. HAMPSON

No. 115

Supreme Court of Arkansas

February 17, 1919

Appeal from Mississippi Chancery Court, Osceola District; Archer Wheatley, Chancellor; affirmed.

STATEMENT OF FACTS.

This is a suit by Susie T. Norfleet against J. K. Hampson and others to recover an undivided 1242/7279 interest in the lands described in the complaint, for an accounting of the rents and profits and for a partition of the lands. The material allegations of the complaint are as follows:

Louis Hanauer conveyed the Nodena plantation to D. L. Ferguson reserving a vendor's lien for the balance of the purchase money, $ 21,114.60. In addition to this debt, Ferguson seems to have been indebted to Louis Hanauer in the further sum of $ 17,766.03 and to Schoolfield, Hanauer & Company, a partnership composed of Louis Hanauer, W. W. Schoolfield and H. G. Miller, in the sum of $ 18,529.05. Hanauer procured a decree foreclosing his vendor's lien, and John B. Driver was appointed commissioner to sell. At the commissioner's sale the plantation was bid in by F. P. Poston and D. T Schoolfield as trustees for the estate of Louis Hanauer (he having died), and Schoolfield, Hanauer & Company, the estate to have "a first lien and claim on the property, and to be first satisfied therefrom," for the $ 21,114.60 due it as the balance of the purchase money, "and afterwards the excess over and above said Hanauer's lien for purchase money to be distributed," pro rata on the debt of $ 17,766.03 due Hanauer's estate and the debt of $ 18,529.05 due Schoolfield, Hanauer & Company. The sale was confirmed by the court, and on February 14, 1891, John B Driver executed a commissioner's deed to Poston and Schoolfield as trustees. This deed recites that "Poston and Schoolfield as trustees bought the property for the estate of Louis Hanauer who holds a first lien and claim on the same for the balance of purchase money, to-wit, the sum of $ 21,114.60 and then for the joint benefit and interest of the estate of Louis Hanauer to the sum of $ 17,766.03, and the firm of Schoolfield, Hanauer & Company for the sum of $ 18,529.05."

Louis Hanauer, who died prior to 1891, bequeathed his estate (after certain specific legacies) to his niece, Mary Hampson, and to her children, the appellees. By this bequest Mrs. Hampson and her children became the owners of the debt of $ 21,114.60 which was to be first satisfied out of the property, and of the debt of $ 17,766.03 and one-third of the debt of $ 18,529.05, which last mentioned debts were to share pro rata in the proceeds of the property after the debt of $ 21,114.60 was fully paid and satisfied. The claims of Mrs. Hampson and her children therefore aggregated $ 45,056.98 of which $ 21,114.60 was a first lien on the property, while the balance of the indebtedness secured by the property, being two-thirds of the debt due the old firm of Schoolfield, Hanauer & Company (which had been dissolved by the death of Louis Hanauer) amounted to $ 12,352.70.

On January 9, 1897, the trustees conveyed the property to Mrs Hampson and her children, or rather to W. W. Schoolfield as trustee for them, in consideration of the $ 45,056.98 due them, and the assumption by Mrs. Hampson and her husband of the $ 12,252.70 due W. W. Schoolfield and H. G. Miller, the other two members of the firm of Schoolfield, Hanauer & Company. The deed of conveyance set forth the entire history of the property and of the transactions referred to above and contained the following recital with reference to the deed from John B. Driver as commissioner to the trustees: "Said deed having been executed to said Poston and Schoolfield as trustees to hold the legal title thereto for the benefit of the estate of Louis Hanauer which held at that time a first lien and claim on said premises for the balance of purchase money amounting at said date to the sum of $ 21,114.60, and thereafter for the joint benefit and use of the estate of Louis Hanauer to secure an indebtedness due him amounting to $ 17,766.03, and to the firm of Schoolfield, Hanauer & Company, amounting to the sum of $ 18,529.05, it being provided in said deed that the last named debt due the estate of Louis Hanauer and the debt due the firm of Schoolfield, Hanauer & Company should, after the payment of the vendor's lien in favor of the estate of Louis Hanauer, in the event of a sale of said property by said trustees, share pro rata according to the amount of the debts stated in the surplus proceeds thereof."

In the last paragraph of the deed to Schoolfield as trustee for Mrs. Hampson and her children is the following: "It is understood and agreed that the said Hampson and wife and Schoolfield as trustee will assume and take care of the indebtedness due to W. W. Schoolfield and H. G. Miller, the other two partners of the firm of Schoolfield, Hanauer & Company, as provided in the deed above mentioned."

The possession of the property was delivered to Mrs. Hampson and her children at the date of the trustee's deed to them, January 9, 1897, and they have remained in possession from that day until this, a period of more than twenty-two years. During that time they have cultivated the land, and applied the rents and profits to their exclusive use and benefit.

On November 24, 1897, H. G. Miller executed a deed to Susie M. Thomas, now Susie T. Norfleet, by which he conveyed his "undivided one-third interest in the interest of the former firm of Schoolfield, Hanauer & Company in and to the said Nodena plantation."

The complaint alleges that between the years 1899 and 1903, Mrs. Hampson paid the plaintiff $ 500 on one occasion and $ 1,500 on another. No other payment was ever made.

All the various deeds referred to were made exhibits to the complaint. Other facts alleged in the complaint will be stated or referred to in the opinion.

A general demurrer to the complaint was filed which was sustained by the court. The plaintiff refused to plead further and elected to stand upon her complaint. The court dismissed the complaint for want of equity and the plaintiff has appealed.

Decree affirmed.

G. J. McFadden and Carmichael & Brooks, for appellant.

1. The original complaint sets forth an equitable cause of action and it was error to sustain the demurrer. Trust estates like this are clearly established by the laws of Arkansas and are required to be faithfully administered in accordance with the terms of the instrument creating them. 31 Ark. 400; 103 Id. 145. The deed of 1897 in which neither H. G. Miller nor Mrs. Norfleet joined did not affect Mrs. Norfleet's interest in the trust estate and it is still outstanding. 30 Ark. 249-266; 33 Id. 621; 75 U.S. 202; 3 Howard (U.S.) 401, Law. ed. 622. The legal effect of the deed of 1897 is to bind Mrs. Hampson, her trustees and her children, the defendants, to the faithful execution of the John B. Driver trust deed. By the deed of 1897 they became the owners of Louis Hanauer's debt of $ 21,114.60, which was a first lien on the land. By accepting that deed they undertook (1) to pay off that sum and interest to themselves and (2) then to account to Schoolfield and Mrs. Norfleet for their interest in the remainder of the property. These are matters of contract expressly set forth in the deed. 30 Ark. 249, 266; 33 Id. 621; 9 Baxt. (Tenn.) 100; 8 Wheat. (U.S.) 421; 9 Id. 489; 13 Hun. (N. Y.) 514; 11 Paige (N. Y.) 514; 11 Id. 459; 1 Pet. (U.S.) 299-308, 12 Law ed. 157.

2. The statutes of limitation have no application to an express trust until there is a disavowal of the trust and an open, adverse holding under a claim of right known to the cestui que trust. 58 Ark. 84; 46 Id. 25-34; 16 Id. 122; 75 U.S. 202, 19 L.Ed. 306; 142 U.S. 338, 35 L.Ed. 1035; 120 U.S. 386, 30 L.Ed. 719; 8 L. R. A. 480, and annotations. Ib. 647 and ann. No one ever set up any claim to this property adverse to Mrs. Norfleet.

3. Mere lapse of time does not constitute laches such as will bar an action to enforce an express trust. There must be such a change in the condition of the property and parties during the lapse of time as to prejudice the rights of the defendants and render it inequitable to enforce the trust. 15 S.W. 830; 103 Ark. 251; 16 Id. 122; 129 Id. 94; 3 How. U.S.) 333-411, 11 L.Ed. 622-657; 215 U.S. 554-577, 54 L.Ed. 325, 335; 62 Vt. 123; 9 L. R. A. 517; 20 A. 322; 53 N.J.Eq. 313; 31 A. 596; 9 Baxt. (Tenn.) 100; 5 Utah 331; 15 P. 260; 38 Minn. 211; 36 N.W. 338; 62 Id. 899; 44 Neb. 463; 28 N.J.Eq. 467; 12 Id. 423; 28 Ohio St. 568; 96 Tenn. 252; 34 S.W. 209; 31 L. R. A. 706; 126 F. 593; 61 C. C. A. 515; 78 F. 839; 24 C. C. A. 397; 15 F. 912.

Courts of equity withhold relief from those who have delayed the assertion of their claims for an unreasonable length of time. Its application depends on the particular circumstances of the case. It is not mere lapse of time but of change of circumstances and situation during neglectful repose, rendering it inequitable to afford relief. 184 U.S. 450-453; 46 L. ed., 636, 656.

No new claims, rights, interests or equities have arisen. Only the rights, titles and equities created by the John B. Driver deed and reaffirmed by the deed of 1897 are now in existence. There has been no change in the condition of the property. No new parties have come forward. This suit is between the parties whose equities were created by the Driver trust deed and acknowledged by the deed of 1897. The doctrine of laches has no application. 61 C. C. A. 515; 126 F. 593; 78 Id. 839; 24 C. C. A. 397; 38 Minn. 211; 36 N.W. 388; 115 U.S. 368, 36 L.Ed. 738; 152 U.S. 412, 38 L.Ed. 495.

The doctrine of laches, like the statute of limitations, can only be applied to a cause of action. The time only begins to run when the cause of action arises. Here the cause of action set...