Howell v. Howell

By the Court,

DIXON, O. J".

It is unnecessary for us to determine whether this action can be sustained without an accounting and settlement of the affairs of the firm of Howell & Co., or to consider the condition of the lands with reference to the partnership, since, assuming the action to be maintainable in its present form, we are still of opinion, upon the facts stated in the complaint, that it is barred by the statute of limitations. The counsel for the appellants conceded at the argument, if an accounting was to be had, that their remedy was cut off by the statute, but seemed to suppose, if that was unnecessary, that the proceedings to enforce the implied trust arising from the application of William Howell’s money to the purchase, was still open, on the ground that the trust had never been denied. We think he is mistaken in the application which he seeks to make of the doctrine of Sheldon vs. Sheldon, 3 Wis., 699. The cause of action accrued in June, 1848, when the land was purchased, and consequently more than ten years had elapsed before the decease of Willi am Howell, which was in November, 1858. By the statutes of 1849 (sec. 26, chap. 127), bills for relief on the ground of fraud were required to be filed within six years after the discovery of the facts, and in case of the existence of a trust not cognizable by the courts of common law (sec. 27), within ten years after the cause thereof accrued. Similar limitations are contained in the present Revised Statutes, chapter 138, sections 16, 22. In Parker vs. Kane, 4 Wis., 1, it was held that though the statute was not in existence at the time the cause for filing the bill accrued, yet as a sufficient and reasonable portion of the term of limitation within which the bill might have been filed, remained after *58 tpe enactment of tbe statute, tbe action was barred. See also Smith vs. Packard, 12 Wis., 371. It follows tbat tbe canse 0f action set forth was barred in tbe lifetime of William Howell, unless, as counsel supposed, it was necessary tbat there should have been a denial of tbe trust before tbe statute would begin to run. But tbat doctrine is applicable only to express or acknowledged trusts, where tbe trustee has af-terwards repudiated tbe rights of tbe cestui que trust, and set up, a claim to the trust property in bis own right, and not to those implied or equitable trusts which spring from tbe originally wrongful and fraudulent acts of tbe party to be charged, and which were never recognized or admitted by him. It was of such express or acknowledged trusts tbat tbe court was speaking in tbe case referred to, and it would be as absurd to apply tbat doctrine to these implied trusts, as it would be to apply tbe ten years’ limitation to those where a denial of tbe trust has never taken place. It would be to abrogate tbe statute of limitations altogether in actions of this nature, or to say tbat it was not intended to apply to them; for as tbe party to be charged has no occasion to deny tbe trust until called upon to execute it, which is usually done by action, and as this might be delayed until after the expiration of tbe ten years, so it might be postponed for an indefinite period in tbe future. This was clearly not tbe intention. Tbe trust in such cases originates in a fraud, which is in itself as complete and absolute a denial of tbe rights of tbe injured party as it is possible to have, and every day which passes without reparation of the injury is a continuation or repetition of it. William Howell might have commenced bis action tbe moment tbe land was purchased, and consequently it was barred before bis death.

Tbe statute of limitations is one of tbe grounds assigned in support of tbe demurrer, and tbat tbe defendants may avail themselves of it in this way, is also questioned by counsel. At tbe common law it was, in general, necessary to plead it specially (1 Chit. Pl., 479, 481, 498, 506; 4 Wis., 249), but in equity advantage might be taken of it by demurrer, whenever tbe objection appeared bn tbe face of tbe bill. Story’s Eq. Pl., §§ 484, 503, 751. Mr. Van Santvoord *59 gives it as bis opinion tbat under tbe Code tbe defendant may in all cases demur whenever it appears on tbe face of complaint tbat tbe plaintiff’s claim is barred by tbe statute, on tbe ground tbat tbe complaint is defective, as showing a state of facts constituting no cause of action. Yan Sant. PL, 268-9, 688-9. It is not improbable tbat be is correct in this position. At all events, as this is a proceeding in equity in which, according to tbe old practice, tbe demurrer would have been well taken, we think it to be so now.

Order affirmed.