Philippi v. Philippe

¶1APPEAL FROM. THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ALABAMA.

¶2Although it is true that when the relation of trustee and cestui qm trust exists and is admitted by the trustee, lapse of time is no bar to relief in equity against the trustee in favor of the cestui que trust, yet, when the trustee repudiates the trust in unequivocal words, and claims to hold the trust property as his own, and. such repudiation and claim are brought to the notice of the beneficiary in such manner that he is called upon to assert his equitable rights, the statute of limitation, begins to run from the time when they thus come to his knowledge.

¶3In Alabama, even in the absence of a statute of limitation, if twenty years are allowed to elapse from the time when proceedings could have been instituted for the settlement of a trust, without the commencement of such proceedings, and there has been no recognition, within that period, of the trust as continuing and undischarged, a presumption of settlement would arise, operating as a continuing bar.

¶4■ When the lapse of twenty years raises in Alabama the presumption of payment and satisfaction of an equitable claim, the provision of § 2, Ordinance 5, of the Constitutional Convention, adopted September 27,1865, that “ in computing the time necessary to create the bar of the statutes of limitation and non-claim, the time elapsing between the 11th of January, 1861, and the passage of this ordinance shall not be estimated ” does not aflect the presumption unless within that period there has been some recognition of the liability which it is sought to enforce.

¶5The appellant was the plaintiff in the Circuit Court. The original bill was filed October 20, 1879. It was demurred to and the demurrer sustained. The plaintiff having obtained leave to amend, filed an amended bill, in which he stated his case substantially as follows :

¶6The plaintiff is the son of Angelo M. Philippi, deceased. Some time previous to the year 1815 the said Angelo M. Philippi and Antonio Philippe, his brother, one of the defendants, were equal partners in carrying on in the City of Mobile, in the State of Alabama, a boarding-house and saloon, in which business they prospered. In 1815 Angelo decided to revisit *152his native country, the Island of Corsica. Before leaving Mobile he placed all his affairs, busipess, money and property in the keeping of his brother Antonio to manage for him, and the latter having accepted the trust, Angelo left the United States and went to Corsica. Antonio, after the departure of his brother, continued the partnership business for the joint benefit of both. He managed his brother’s affairs and property and the partnership business with such skill and success that in May, 1847, he had in his possession the sum of $10,000 belonging to Angelo, upon which he agreed to pay interest; For the year ending November, 1847, the profits of the joint business were $8,000, and the joint income from their slaves for the same period was $4,500. For a time Antonio kept .true accounts of these profits and incomes, fixing- Angelo’s share therein. He invested these accumulated gains of himself and his brother, Angelo, in real estate, taking, however,' the titles in'his own name.

¶7In the year 1848 Antonio held, as the joint property of himself and Angelo, six houses and lots in the City of Mobile, valued at $26,000; subsequently to 1848 he bought a large amount of real estate, which he paid for out of the profit and incomes derived from the trust funds and from the slaves, and business jointly owned by himself and his brother.

¶8During their long separation the relations of the brothers continued harmonious, and a correspondence was kept up between them.

¶9By letters dated respectively, May 5, 1847, and March 7, 1848, written in the Italian language, addressed by Antonio to Angelo, translations of which, marked Exhibits D and E, are attached to the bill, the former acknowledged the trust.

¶10Angelo returned from Europe in December, 1856. Antonio did not deny the admissions made in the letters of May 5,1847, and March 7, 1848, or repudiate the trusts therein acknowledged, but promised to render a true and just account of the partnership and trust affairs to Angelo, and to make a final settlement of the same; but he delayed doing so, from time to time, and never made said statement of account .or final settlement. Subsequently, by papers marked Exhibits F and Gr, at*153tached to the bill as parts thereof, Antonio expressly acknowledged thy trust.

¶11Angelo, being of foreign birth, and imperfectly acquainted with the English language, and being also a man of few associates, and those few foreigners, ignorant as he himself was of the English language, never became fully informed of his rights- and remedies under'the laws of this country against his brother Antonio, and was averse to litigating with his brother, and repeatedly declared that the thought of a lawsuit with his brother was repulsive to him, and chose rather to hope that his brother would ultimately fulfil his promise to account to him and render to him what was his due.

¶12Upon his return from Europe in December, 1856, Angelo was possessed of but scanty immediate means, whilst the defendant, Antonio, had at his disposal much wealth. Angelo remained in Mobile after his said return until his death, which occurred May 1, 1874, and was in a condition of poverty, and at times almost of distress, and died leaving his family in want.

¶13The translation of the letter of May 5, 1847 (Exhibit D), written by Antonio to Angelo, contained the following passage : “ 2. Further, the certificate made by the hand of a notary as (that) I hold 10,000 dollars of thine in my hands, which I pay thee interest.” This is the only part of the letter pertinent to the case. The translation of the letter of March 7, 1848 (Exhibit E), contains the following passage, which is the only one referring to the present controversy :

¶14“ Now let us speak a little of our affairs. I will tell thee that I have arranged the accounts the first of November, on which the profit of the affairs which we hold together are 8,000 dollars ; 4,000 dollars I have marked them for thee to thy credit, which I wish that thou make me know what I must do with it. If thou, wishest that I send them to thee, or wishest that I should do business with them for thy account. Since thou hast left I have made purchases; the house in which I am, 13,000 dollars. I have had a very beautiful one built on Dauphin Street, cost 7,000 dollars; bought one in the same street, which thou knowest, where Colobo keeps his bar-room, cost 6,000 dollars, thus counts six houses which we hold. The negroes give *154me of interest the sum of 4,500 dollars a year without our trade. Thus, dear brother, thou knowest well what is mine has been and always will be thine, and thou I am persuaded thy sentiments are the same. For this I wish to tell thee thou hast no need that the interest should keep thee melancholy.”

¶15Exhibit F, appended to the bill, is a copy of a petition filed by Antonio, in a suit,brought against him in the Chancery Court of Mobile County by the administrator and heirs of Angelo, to enforce the same trust set up in this case. Antonio in this petition, which was under oath, after denying that he was indebted to his brother Angelo at the time of his death, in any amount whatever, stated that the bill filed against him required him to admit or deny the making of a writing under his hand acknowledging the trust set up in the bill; and as the writing was alleged to have been made more than thirty years before, he could not answer the averment of his having executed a writing of the • effect charged without seeing it, and prayed that the plaintiffs in that case might be required to submit the same to his inspection.

¶16Exhibit F, attached to the amended bill, was an affidavit made and filed in the present cause by Antonio, in which he stated that it was wholly untrue that he was in any manner indebted to the • heirs of Angelo, as charged in the bill; that Angelo returned from Europe to Mobile in the year 1853, a fact not mentioned in the bill, and that while so in Mobile, and before he left again, á full settlement was made between him and the affiant of all matters of account, and that in such settlement a balance of over $900 was found to be due the affiant from Angelo, which he had never paid. The affidavit further stated that about the year 1872 Angelo had a claim upon an insurance company for property destroyed by fire, which became a subject of litigation; that, being destitute of means, Angelo applied to affiant to lend him money to support his family until he could recover the insurance money, andaffiant lent him $800 on his agreement to repay the loan out of the insurance money when collected; that Angelo compromised his demand against the insurance company for $3,000. and his creditors set up their claims against the fund *155in the Chancery Court, and that in that proceeding Angelo filed the following affidavit:

¶17“ That he is entirely destitute of property, except the money and proceeds coming to him from the said policy of insurance. That it constituted all the property he had in the world, except a few articles of household furniture and wearing apparel for his family, which he is advised by law is exempt from execution and levy. And this affiant,” Angelo, “now shows to the court that he is advised by counsel that he is entitled to one thousand dollars as exempt from attachment, levy, or garnishment, and he claims this amount shall be left to him unaffected by the creditors or any of their proceedings in this cause,” &c.

¶18The affidavit of Antonio (Exhibit F) further stated that he received out of said insurance money, on his claim for the money lent to Angelo, the sum of $329.27, and the other creditors got a like pro rata, share out of the same fund.

¶19Antonio Philippe, Angela F. Philippi, individually and as administratrix of the estate of Angelo M. Philippi, and the brothers and sisters of the plaintiff, children and heirs of Angelo M. Philippi, were made defendants to the bill. The prayer was for a settlement of the partnership, and an account of its property, profits and gains, and for a settlement of the trust, and that Antonio Philippe might be decreed to pay over to Angela F. Philippi, the administratrix, the one half of all the gains and profits of the partnership, with interest, and to de liver to the plaintiff and to the defendants, heirs at law of Angelo M. Philippi, all the real estate purchased by him in his own name, with the trust funds belonging to Angelo, or with his share of the profits of the partnership, and for a partition between Antonio Philippe and the heirs of Angelo M. Philippi of all lands held by the former in his own name, purchased with the joint funds of himself and Angelo M. Philippi, and for other relief.

¶20The defendant, Antonio Philippe, demurred to the bill, and for grounds of demurrer, besides others, alleged that the cause of action set out in the bill was stale and barred by the statute of limitations of Alabama, and that the plaintiff, being merely *156one of the heirs at law of said. Angelo M. Philippi, was not entitled to. the relief prayed in the bill. The Circuit Court sustained the demurrer and dismissed the bill, and the plaintiff appealed.

¶21Mr. Frederick G. Bromberg for appellant.

¶22Mr. John A. Campbell for appellees.