Whitcomb v. Wright
| Decision Date | 25 January 1929 |
| Docket Number | 27,043 |
| Citation | 223 N.W. 294,176 Minn. 274 |
| Parties | JAMES EDGAR WHITCOMB AND ANOTHER v. VERNON A. WRIGHT AND OTHERS |
| Court | Minnesota Supreme Court |
Plaintiffs appealed from orders of the district court for Hennepin county, Nordbye, J. sustaining general and special demurrers to their complaint interposed by defendant Vernon A. Wright individually and defendants Vernon A. and C. R Wright as trustees of a trust deed executed by the mother of plaintiff James Edgar Whitcomb. Affirmed.
Complaint bad.
The complaint in an action to annul an express trust of real and personal property, the action being by an heir at law of the settlor of the trust, held bad upon the following grounds:
Action barred at expiration of six years.
1. The trust was created by deed in June, 1903. The grantor survived until 1926. There is no allegation that the fraud alleged to have been perpetrated upon the grantor was not known to her in her lifetime. Hence the cause of action must be considered as having accrued in her favor and as having become barred by the statute of limitations at the expiration of six years from the delivery of the deed.
Omission of allegation that plaintiff is executor or devisee.
2. So far as plaintiff seeks to reach property which was that of his mother, who was the settlor of the trust, the complaint alleges that she died testate; and it does not appear that plaintiff is her executor or a devisee in her will.
Omission of allegation as to discovery of fraud.
3. So far as the complaint seeks to reach property of plaintiff, other than that which he might have gotten by inheritance from or under the will of his mother, his cause of action is also barred because it accrued much more than six years previous to the commencement of the present suit and the complaint fails to show when plaintiff discovered the alleged fraud upon which he relies and, if that discovery was within six years previous to commencing the action, why he was not chargeable with notice of the fraud earlier.
Omission of allegation as to laches.
4. The complaint discloses a delay of more than 15 years in asserting plaintiff's rights. In the absence of allegations of facts sufficient to excuse that delay, plaintiff must be held guilty of laches.
Limitations of Actions, 37 C.J. § 299 p. 929 n. 1; § 752 p. 1236 n. 64.
Eriksson & Zumwinkle and Harold Ranstad, for appellants.
N. F. Field, Cyrus A. Field and Junell, Dorsey, Oakley & Driscoll, for respondents.
Appeal by plaintiffs from orders sustaining special and general demurrers to their complaint.
Plaintiffs are husband and wife. It will serve convenience to refer to James Edgar Whitcomb as the only plaintiff. Construing the complaint liberally, its purpose is to annul a trust deed wherein defendants Vernon A. and C. R. Wright are the trustees. The other defendants are joined because with plaintiff they are beneficiaries of the trust. Plaintiff is the son of Silas Whitcomb and his wife, Carrie A. Whitcomb. Silas died in 1868. Thereafter the mother married George B. Wright; so plaintiff became his stepson. Defendant Vernon A. Wright is the son of George B. Wright by an earlier marriage and the stepson of plaintiff's mother, who will hereinafter be referred to as Carrie A. Wright. George B. Wright died in 1882. By a deed dated and acknowledged June 18, 1903, while she was a widow, Carrie A. Wright transferred to Charles D. Wright and Vernon A. Wright, the latter one of the present defendants, a large amount of real and personal property. The transfer was of nearly if not quite all the grantor's estate in trust for certain carefully stated purposes which need not be detailed. The trust continues in existence, though much of the original property has been converted into other forms by the trustees. The trust purposes have not been accomplished. Defendant C. R. Wright has succeeded Charles D. Wright as a trustee. The demurrers are based in the main upon the proposition that no cause of action is stated, the bar of the statute of limitations and the alleged laches of plaintiff being principally urged.
1. The annulment of the deed of trust of June, 1903, is sought upon the ground of fraud practiced upon plaintiff's mother, the grantor. The allegations of fraud need not be considered at all in detail. If fraud was practiced it was upon the grantor and none other. The property she transferred was her property. If it was gotten from her by fraud or other actionable wrong, the resulting cause of action accrued in her favor. She did not depart this life until July 1, 1926, some 23 years after her execution and delivery of the trust deed.
Such a cause of action as that now under consideration, although it may seek in whole or in part to recover real property or an interest therein, is an action for relief on the ground of fraud within G.S. 1923, § 9191(6), rather than one "for the recovery of real estate, or the possession thereof," under § 9187. McMillan v. Cheeney, 30 Minn. 519, 16 N.W. 404; Brasie v. Minneapolis Brg. Co. 87 Minn. 456, 92 N.W. 340, 67 L.R.A. 865, 94 A.S.R. 709. In consequence, the cause of action accrues upon "the discovery by the aggrieved party of the facts constituting the fraud" [§ 9191(6)]. The present complaint is barren of anything to suggest that, if there was fraud as claimed by plaintiff, Carrie A. Wright was not charged with knowledge of it immediately. In the absence of allegations of her nondiscovery of the supposed fraud, the cause of action in favor of Carrie A. Wright, the grantor in the trust deed of June 18, 1903, must be considered as having become barred by the statute of limitations in six years, or on June 18, 1909. As already stated, she lived until July 1, 1926. Paraphrasing but slightly the language of McMillan v. Cheeney, 30 Minn. 519, 16 N.W. 404, plaintiff's right of action, as the complaint presents it, accrued to his mother, Carrie A. Wright, during her life and immediately upon the perpetration of the fraud in 1903. The right of action, as pleaded, appears therefore to have been barred before her death, which occurred some 23 years after that time.
2. Furthermore, so far as plaintiff seeks to reach property which was his mother's he sues as one of her heirs at law. He alleges that she died testate. Therefore the learned trial judge was right in observing that the complaint, if it states any cause of action, shows one in favor not of plaintiff or any other heir at law of Carrie A. Wright, deceased, but rather and only one in favor of her executor or her legatees and devisees. Nothing is pleaded to show that her will was not operative and would not control the disposition of her property if the trust in which this action seems to find most of it were annulled by decree and because of fraud in its creation.
3. The complaint may attempt to reach property acquired by plaintiff through inheritance from his father, Silas Whitcomb, who died in 1868. Again without going into...
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