·tEMOlli]j;. V. DU1IKLlN COUN'rY.
567
LEMOINE'll. DUNKLIN CoUNTY.
(Oircuit (fourt, B. D.ltfia8ouri, 1!J. D. April 27,1889.)
1.
VENDQR; AND VENDEE-RIGHTS AND REMEDIES-PUBLIC LANDs-LnnTATION OF ACTIOj!fs..
A bill alleged the purchase Of swamp lands from the defendant county 30 years before, the payment of the price in full, and the issue of. certificates entitling the holder to a patent from the governor; and further averred.the duty of the governor to issue the patent until a short time afterwards. when .power to issue patents was conferred on the county court; and the bill asked that the county be decreed to convey the legal title. Delil, tb.at as· the bill trust. 8S to the legal title, and disclosed the relation of truliUle and ceatui as there were 11,0 allegation!! concerning the possession, and it was DQt shown that the county had done anything in disaffirmance of the trust until a short time before suit. nor that third persons had acquired interv.ening rights,. the court.Qould not declare on dem.Urrer that complainant was barred by the statute of limitations. . Neither does the bill disclose such laches POSSESSION.. . 8S
9. 8.
SAME-LACHES.
will bar the right to relief. " .'
Wb,atever' constructive possession the county may have by reason of its . bef)ig'ves'ted' with legal title does not barcomplainant'e rigbt.·' Actual ad· verse posllessionis necessary fot tbat purpose.
In Equity. ' On demurrer to amended bill. Suit by Louis R. Lemoine against Dunklin county.· . Outnningham & Eliot, for. complainant. Gear.qe' H. SluiildB and Elene:iPwJ Smith,: for .defendant· . THAYER, J. The case pDeSeJ1ted by the bill is that of a vendee·of land who has' paid the purchase Jmoney, seeking to have the legaLtitle divested out of the vendor ahd; vested in himself. It has long been settled that the relatiQuofvendor and vendee" under such circumstances,isthat of trustee and cestui que tr'ust. 2Story, Eq. lur. §789. When the purchase money has been; paid, the vendor becomes a mere trustee of the legal title for the purchaser. 1 PerrYI Trusts,§§ 231, and 122. Trusts of that character ulldoubtedlyanswer:to the definition ordinarily given of an implied truat,being trusts that are not expressly: declared, but are inferred from a given contract or; transaction. The terms" express," "implied," "resulting," and "constructive," as applied; to trusts, have not always been'used with technical accuracy. In some cases a trust has heen termed an express trust that was,jnrealityan implied trust, and inatancesare quite common where constructive trusts have been spoken of as implied trusts, and mceVe?1sa. In reality'resulting and constructive trusts are spec:iesof implied trusts. These remarks are made' because great stress was laid on the fact that the trust,described by the bill is an implied trust, and important consequences are deduced from suchclass-, ification.,. Beeause it is of the nature of an implied trust, it is contended that the relief ,sought by the bill was barred 10 years after. the creation .'of the trust/in analbgywith the·iule.;tkat prevails at law inactioqs;to rec0verreal property.:. .Now;!th.eibilL.shaws caaemust be dis-
568
I
FEDERAL REPORTER,
vol. 38.
, posed of solely with reference to its averments) that in January and April, 1857, certain persons under whom complainant claims purchased of Dunklin county certain swamp lands to it belonging, and paid for the same in full, and received from the county register certain certificates ot' purchase, which on their face purported to entitle the holder to a patent on presentation thereof to the governor of the state. The bill avers that it was the duty of the governor to issue patents for such lands upon the production of such certificates up to June 3, 1857, when the power to issue such patents was conferred on the county court, where it has since resided;' that an application for a patent under the certificates was made by complainant on July 6,.1886, and was refused. No reason is assigned for not an earlier application for a patent. The bill contains no allegations touching the possession or occupancy of the lands in the mean time; nordoes it appear that the county ever did any act in disaffirmance of thelrust prior to July6, 1886,or that the rights of third parties have intervened. Can the court then declare on demurrer that complainant's right to have the legal title transferred to him, is barred either by limitation or laches? The law has been long and well settled that the trustee. of an express trust capnot statute of limitations against the cestui que trust, untiihehas done some act in 0plin violation or in disaffirmance of the trust. Olive:r v. Piatt, 3 How. 411; Kane v. Bloodgood, 7 Johns. Ch. 90; Lewia v. Hawkins, 23 Wall. 126; Seymour v. Jilree:r, 8 Wall. 202; 2 Perry, Trusts,§ 863, and cases eited. In LmviJJ. v. Hawkins, 8t1pra, the rUle was applied to a case arising between the vendor and vendee of lands. .The vendee, who had gone into possession under a contract to purchase and a bond for a deed, and had remained in possession for a period much longer than would suffice to bar a suit. at law for possession, without having paid any portion of the purchase· IXioneyin the mean time, interposed a plea of limitation and laches to a. suit brought to foreclose the lien for the pnrchase money. It was held that the vendee in possession stood in the relation of a trustee for the· vendor as to the pnruhase money, that the vendor held the legal title in trust for the vendee, that the vendee's possession was not adverse to the :vendor, and that the plea was of no avail. In that case, it is true, the'court said that the bond for a deed and notes for the purchase money established an express trust, but whether that was or was not a correct classification of the trust appears to me to be unimportant. The certifi·. cates of purchase described in the bill created a trust of precisely the· same character, and quite as clearly, as the documents referred to in Lewis v. Hawkins. The case of Seymour v. Free:r, 8 Wall. 202, is also in . point. In that case a trust arising by implication out of a contract for the purchasealld sale of lands was enforced against the trustee, or, rather, against his heirs, long after the time that a suit at law to recover the lands would have been barred by the statute, nothing having been done in the mean time by the trustee in disaffirmance of the trust, or to. render the enforcement of the same harmful to third parties. The ruleapplied in these cases seems to be clearly applicable to the case at bar. The trusts involved are of the same character, and the trust mentioned
LEMOINE V. DUNKLIN COUNTY.
569
in the bill is as clearly established by the certificates of purchase issued by the county register as the trusts involved in the cases last cited. The case of Ruckman v. Cory, 9 Sup. Ct. Rep. 316, is also instructive as showing after what lapse of time courts of equity have decreed a transfer of the legal title to one who holdsthe equitable title to lands. Inasmuch as it does not appear that the defendant denied the trust prior to July 6, 1886, or that other rights have intervened since the purchase, and, inasmuch as it does appear from the avem1ents of the bill that the defendant is a mere trustee of the legal title, the purchase money having all been paid, the court does not feel warranted in declaring on demurrer that complainant is barred of his remedy. Furthermore, I do not think that the facts stated in the bill raise the presumption that defendant has been inactual occupation of the lands since the sale. Constructive possession, as has been urged,does follow the legal title, but, as was held in Bollinger v. Chouteau, 20 Mo. 95, that is a fiction of the law adopted for the protection of vacant lands, and to give the true owner a right of action against trespassers. Such constructive possession never operates to extinguish a legal right. Whatever constructive possession the defendant may have had by reason of its being vested as trustee with the legal title since the sale, will not bar complainant's right. Actual adverse possession is certainly requisite for that purpose, and the bill does not raise the presumption of such possession in the defendant. Various cases have been cited by defendant's counsel with a view of establishing that the calise of action is stale, but the court has not been able to concur in that view. The case of Speidel v. Henrici, 120 U. S. 377, 7 Sup. Ct. Rep. 610, is first. referred to. In that case the court found that the trustee proceeded against had disaffirmed the trust 50 years before the bill was filed. The bill showed that for that period the trustee had constantly avowed that he held the trust property upon a trust entirely different from that which complainant sought to establish and In other words, the case was decided on the theory that the trust had been disavowed for such a length of time that the complainant, who had knowledge oT such disavowal, was barred of his right by laches. In the case of JtIarsh v. Whit7lW1'e, 21 Wall. 182, an effort was made to establish a constructive trust in personalty nearly 12 years after the transaction out of which it arose. The bill did not state exbecame aware of the transaction out of actly when or how which the trust arose, and it was accordingly held to be demurrable. The rule is well settled, of course, that a person who seeks to enforce a -constructive trust, or obtain equitable relief on the ground of fraud, must act diligently on discovering the fraud, or the transaction out of which the ,trust arises, as the trustee in such a trust always holds adversely to the beneficiary, and the right to pursue him may be easily lost by laches. The case of Brown v. Buena Vista, 95 U. S. 157, was a bill filed to set aside a judgment on the ground of fraud, and the proceeding was held to be barred by laches. The case is not important, except in 80 far as it shows that in such cases a complainant must act with commendable promptness after discovering the fraud. In the case of Hurne v. Beale,
070
vol. 38. :
17 Wall..347, ,R biU was filed to charge the estate of a trustee for a breach of trust committed 37 y!ilars ·before. the ,suit was instituted. The breach of trust had 1?een known to complainant for many years, and it was for that reason held that equity would not grant relief. Badger v. Badger, 2 Wall. 92, was a case in which a bill was filed against an administrator to obtain relief against frauds perpetrated iri the course of the administration. It appeared that the complainant might have discovered the alleged frauds at any time within 30 years before the bill was filed, even if he had not had actual knowledge thereof during that period, and the oause of aotion was aocordingly adjudged to, be stale. Godden v. Kimmell, 99 U. 8.201, is of the same general character as the ease last mentioned. ,The equitable doctrine of laches which these cases serve to illustrate does not, in my opinion, materially aid the defendant in this case, because. it ought to be applied in analogy with the rules which prev/il.il at law; and inasmuch as a of a trust, such as is involved in the present suit, cannot invoke limitations untila sufficient period has elapsed after he has openly disavowed or violated the trust, it sems reasonable that laches ought not to be imputed to the cesttti que trust, unless there was an ,open disavowal of the trust prior to July, 1886, or unless a.state of facts is established which renders the enforcement of the trust at this time for, some reason ineq'litable. The fact that the legal title to the lands was in the state, or at least only be conveyed by the governor when the first certificate was issued, does not, in my opinion, alter the case. From the time. it was vested in the county, the county clearly held 'the title in trust for the vendee, who had paid the purchase money· . For these reasons I shltll overrule the demurrer. If there are any reasons why the legal title ought not to De divested out of the county, they must be brought forward by plea or answer. The court cannot say merelyon an inspection of the bill that the relief sought is barred by laches. To warrant such a ruling the case ought to be free from doubt, as was said in Putnam v. New Albany, 4 Biss. 365. The court in the present ,case is not asked to compel a trustee to;render an account of that occurred years ago, after witnesses have perhaps died, and vouchers have been lost. If the case were .of that character, the poctrine of la<.:hes might be invoked with grea.ter reason on the ground stated in Stearns v. Page, 1 Story, 204, and Hume v. Beale and Godden v. Kimmell,above referred to. No account is sought or appears to be necessary in the present case. According to the showing made by the bill the defendant is a mere trustee of the legal title to lands. the equita,ble ownership of which is in the complainant, and the orily relief sought that the legal title may be vested in the complainant. The trust is ,clearly by certificates of purchase granted by the proper county officers, and the equitable owners appear to have dealt. with the lands as t1:J.eir own, by executing mortgages thereon and conveyances thereof, have. been duly recorded in the l:lounty. I am of ,the opinion, therefore, that the defendant should be ruled to answer'thebill; . .' . ,and it will be so ordered.
O'*ENS ti. MISSOURI PAC. BY. ;
CO. J"
671
OWENS 1i.' MISSOURI
PAC. Ry.
CO.
(Circuit Oourt, E. D. TeJJas. JURY. .
March Term, 1889.)
COMPANIES-AcCIDENT TO PERSON ON 'fRACK-EVWENC'E-VJEW BY
Plaintiff was run over or against by defennant's locomotive baullIJg a freight had his arm at elbQw broken and fractured. Plaintiff says he was eJ,Jdeavoring to step off th(l track .bed when he was struck by the en,lfine. De. fendant contends that he Was drunk, lying with his' head on the raIl, and hili arm nea11 or on the rail, and his limbs extending outwardly from thc The judge .allowed, against defendant's objection, the jury to go from tile court.-room to make an examination of, a railway engine. Held, there was nq error to vitiate a verdict for plaintiff. On the evidence the findings oitha jury seem to be correct. (Syllabu8 /)11 the Court.)
At. Law. On motion for new trial. Actionby Patrick Owens against the Missouri Pacific Railway Company. Bra4Y &' Ring, for plaintiff. Willie, Mott kBaUenger, for defendant. BOARMAN,J. The plaintiff sues for damages because of personal injury inflicted on him on being run oVer or against by defendant's loco· motive hauling a freight train. The jury allowed him $4,500. The matter is n{)'\v on a motion for'a new trial. The evidence not disputed shows that Owens, at the timt\ he was injured, worked in car-shops at Houston, and earned from $58 to $75 per month wages; that he it:! about as years of age; that his right arm and hand are permanently injured and aimost useless to him for any work, skillful or otherwise; that he now earns or can earn much less than formerly; that he lived in the suburbs of Houston, on Car street; that defendant's railway track runs along this street, .northand south; that the street has no sidewalk or improvements for the Use of footmen or vehicles; that the railway track, being raised above the street level, is used, without objection, commonly by people living insaid street as a footway; that Owens, having been "down town" iIi Houston until 2 or 3 o'clock, A. M., rode with a companion in a hack homeward to a point at or near the place on defendant's railway track about - - .- yards south of the point where it crossed by the New Railway track; that, reaching said point, Owens got out of the hack, and walked on northward up defendant's track; that when he had gone about 250 or 300 yards up the track he was run over or against by the defendant's locomotive hauling a freight train, and injured as aforesaidithat a little while before he was struck' he heard a train whistle at the. said railway crossing, which he took' to be a whistle on a train running on the New Orleans Railway. The'displ;lted matterE/'relate to Was running when Owens wasstruckj to the distance the trainh'adrim after CrOi:lSil1g the New Orleans Railway track; to the engine bell was ringing as, the train was running dn 'Car street, as the company's rules and the city' ordinance require to be
is
