487 The present are l1oW' 'claiming'thebeiIefit' 6fthe services rendered in the supreme court; and which resulted in the' judgllll:lnt awarding the land to thecompl\ny, and equitably they must take the burden, if they accept theberiefit.,The circuio court allowed $2,000 to cover the services rendered in the arid $3,000 for those in the circuit court, and upon the latter sum allowedcl'ediHor the paymentof $500 made in June, 1885" thus finding due thecomplainnnts the sum,of $2,500. We think this apportionment met the ,equities of and that complainant$ aJ:'e not in position in excess. of that awarded them. The decree of the circuit court is therefore, 'affirmed on, b.othappeals, eachparly to pay the' cqsts of the appeal by' them taken.
LEMOINE tl. DUNKLIN COUNTY. ,
Circuit Court oj' Appeals, Eighth.'01n-cuit. JulyS5,1891.
.
No.ll8. 1. LAClIBs-TRusTBEs-REPUDIA'1't01l' OF OF SW.lMP L..t,im. ' .. .i Theissuance of receipts and certificates of purchase of swamp lands belonging to a Q()unty, by the proper omcers thereof,makes the county a trustee holding the legal title of the lands for the benefit,of tlle purchaser, and laehes cannot be imputedto tlle latter in respect to «elay in obtaining a conveyance, until the county has repudiated the trust by some uneqUivocal act. 2. SAME-PAROL EVIDENCE. A suit was commenced in 1888 to compel a county to convey swamp land!! to the holder of certificates of purchase issued by the county omcers in 1857. The defense was laches. The county court was the proper authority for making the convey. ances,;but there was ,no statute requiring demands for dellds to be made a matter of record. Furthermore th,e records of the county had ,been destroyed in 1872. that/ ·forthe purpose of'showing a repudiation of ilisrelatioil of trustee t llding the legal title for thecertUl.cate owners, the county was entitled to show by parol evidence that demands for deeds were often made to tlle court in 1866, and were continuously refused on the ground of fraud. 8. CONSTITUTES. , The delay of 2.2 years after the repUdiation of the trust constituted laches, and plaintitt could not maintain the suit. 46 Fed. Rep. 219,aftlrined. '!
Appeal from the Circuit Court of the United States for the Eastern District of Missouri. Affirnied. . Statement by CALDWELL, Circuit Judge: This is a suit in equity commenced on the2d day of July, 1888\ in the circuit court of the United States for the eastern district of Missouri, by the appellant, IJouis R. Lemoine, against Dunklinicounty, theappellee, to cOlnpel the county to convey to the appellant about 17;000 acres of land,which the bill alleges the county holds intrust for the appellant, .and to require the county to account for the proceeds of such of said landeas it has sold: . The Inndsin question are swamp lands, granted by the UnitedSUttes totha state of Missouri by act of congress approved September 28,1:850, and granted by the state to the county
J'il1;)ERA,LBEPORTER,
vol.
in l'S51+ltf!'Pe receiver and register ofswamp lands for the county were qy Ia:w with ,authority to sell the swamp lands of tbecounty; and; inJ$i:>7, these officers issued receipts and certificates of purchase (ora portion of these lands to sqqdry persons, 'Yho subsequently transto: the The, certificates of purchase were in fQllQwing form: ' "LAND OFFlOE AT KENNETT, DUNKLIN CoUNTY, STATE OF MISSOURI ·
.' ., , ,' ., JANUARY 26, 1857. "It is :beteby certified that In pursuance of ,law Clark and Richardson, of Shelby ooun1iy,8tate of Tennessee, 01'1 thiBday purchased of the register of this oJJice,'[here follows R desoription of the lands,] attbe rate of one dollar per acre, amounting to - - dollars, for which the said Clark and Richardson have made payment in full as requirx by Jaw. Now, therefore, be it to the governor of the state known th,t, on presentation of this of Missouri, the said Clark and Richardson sball be entitled to receive a patent for the lots above described. "JAMES B. RIOE, Hegister." [Signed] On the 27th of February, 1857, an act of the legislature of the state, court 'of the county the exclusive power to make vested in deeds or conveyances of the swamp lands belonging to the county. As to the principal portion of the lands, the leading facts, as far as they are disclosed by the record, are these: An act of the legislature authorized the county to receive the stock of the Dunklin & Pemiscot Plank Road Company, at the rate of one dollar per acre, for the swamp lands of the county lying within six miles of the proposed plank road. The road was surveyed and located, .and the company issued its stock to the county, at the rate of one dollar per acre for the land lying within six of the line of the road, as located, and received in miles on each exchange therefor, from the proper county officer,' certificates setting to thlilcompany. transferred its interaside theae est in the lands under these certificates to Clark and Richardson, and Clark and the helrs of Richardson transferred their interest therein to the appellant. The plank road was never built. The county among other things, that it had never recogilized appellant'SQr his grantors' rights to the lands; that fhe certificates of purchase were procured by fraud; that the lands were never paid for; that the plank roadwa$ll,ever built, the company never intended to build it; that the appellant's grantor, Clark" in 1866, while he was the owner and holder of said certificates, and repeatedly afterwards, demanded patenta· [or the lands of the county, which had been refused; that the lands have been in the adverse possession of the county more than the period required: by the statutes qf limitations to bar an action for their recoverYi that the county had at all times,and continuously, from the year 1859dowI). to the bringing of this suit, llistinctly notified Clark and hi!; grantees that said certificates were· fraudulent and void, and. that it would not to him or his grantees the said lands; that during all of that time, the county,. to;the knowledge of Clark and his grantees, was selling and ponveyingthese lands to bona fide purchasers, o
."No. 42q.
LEKOINE fl. DUNKLIN COUNT'!'.
who went into possession and made valuable improvement8, and that a large proportion of the lands have thus been sold; that appellant hae been guilty of laches, and that his claim is stale. Other defenses were pleaded, not necessary to be noticed. A demurrer was filed to the bill, which was overruled. 38 Fed. Rep. 567. Upon final hearing, the court below dismissed the bill for want of equity, (46 Fed. Rep. 219,) and the complainant appealed. . E. Cunningham, Jr., and Edward a. Eliot, (Phillips, Stewart, Ownningham &:- Eliot, on the brief,) for appellant. G. H. Shields, J08. Dick8on, and Eleneious Smith, (Ohas. P. Hawkins, on the brief,) for appellee. Before CALDWELL and SANBORN, Circuit Judges, and SHmAS, District Judge. CALDWELL, Circuit Judge; after stating the facts B8 above, delivered the opinion of the court. The relation between the vendor and vendee of lands under an executory contract to convey is that of trustee and ce8tui que trust of &;n express trust. This was the relation established between the county and the holder of these certificates. There has been contention at the bar whether such a trust is an express or an implied trust. Calling it by either name will not change its nature or vary the rights and obligations of the parties. By whatever name called, it is a trust which imposed on the county the obligation to convey the lands to holders of the certificates, and to hold the legal title to the lands in trust for that purpose. Lewisv. Hawkins, 23 Wall. 126; Lemoine v. Dunklin Co., 38 Fed. Rep. 567. With reference to trtlstE! of this nature, the rule undoubtedly is that, so long as nothing is done by the trustee or the cesttlli que trust to change their relations, the mere efflux of time will not impair the obligations of the one or the tights of the other. In express trusts no length of time is a bar, and laches will not be imputed to the Ce8tui que trust until the trustee plainly and uneqnivocally denies the trust, and such denial comes to the knowledge of the Ce8tui que trust. But when the trustee of an express trust, by clear and unequivocal acts and declarations, repudiates and disavows the trust, and such repudiation is brought home to the Ce8tui que trust, from that time the bar begins to run, and laches may be imputed to the cesttlli que tru8t. This rule is not questioned. But it is earnestly contended that there is no competent evidence to show that the county ever repudiated the trust prior to 1886, when the present complainant demanded a deed, which was refused. The real question in the case is fairly stated by the learned counsel for appellant to be, "Whether or not appellee ever be,fore that time [1886] repudiated or denied the trust in such a. way as to make it the duty of appellant or his grantors to bring their suit, is the question for the consideration of the court." This is a question of fact 'upon which we have had no difficulty in coming to a satisfactory conclusion.. The parol evidence to prove Clark's demand on the county 'Court for a deed, and the court's refusal to malte the deed in 1866, is objected to on the ground that 'the county court is a court of record,and
49P by its. ,sev,. tl,lis testimony! Ip. first place, the .of the coP.ntY.90urt for that peto have beeP,Pe,stroyed by fire. ,It Ulust be remembered object. of, the ',wlltiJ;noIlY is to establish the fact that the thl;l.t Clark JlOtice of the fact., It would seem that the testi'mony of persons who were· present aJld saw heard deeds on. them, and heard the county judge his .deUland,and .deny .the validity of the,;CQN4fiC!ites, is attbis,Aay I aJ;ld undl:lr thl:l\ circu,mstances of this case, the best attainable evidence of these facts. The court judiand history of the country. It is very well known that county courts in Missouri at those times, in counties like Dunklin, were not very formal or ceremonious in the transaction of the county'sbusiptlss. a good deal of pristine. simplicity in the procedure of these courts in those times. The business of the citi· co'U:n Was ,u$ually:transaded without the intervention of a lawyer, flud.justice or. baffled byforms and technicalitillS. "citizen having. business with the county conferred freely with the oounty· jl,1dge aoot» mllny matters, without the formality of a written petitiQnJ It' is not likely that Clark filed any written petition requesting tht<lOunty to deeds. It is more probable that the walJm,!lde orally, ,and that the refusal was made in the same lVII-y by. the, C9Upty judge. The .fact that this Jlequestwas frequently preferred ltr Olark \during the of three yeats renders it highly improbable ;tQ#l.t it was in ,that $ record was ever made. of any of the demands and re(U$als. ...,. One oftba witnellses,who hU,been surveyor, prosecuting attorney, and represe"Utl\tive of the. ,oounty, testifies that for several years-he is quite certain as, ,three years, beginning with 1866-Clark was present at.," almost everypourt ,trying to get the county court to issue a patent on these;certificates,'I, and,thM the courP'refused to patent the " Inap8wer to theq\Wlltion, "'What were-the actions of the court, if. you remember?,» he says,"Well,tbe oourt gotllo it did not pay much attentiontohhllc. You knoW'itw$S .a!common thing." Certainly there is no statute.@" f,llle of law.whichmade it the duty of the county court to make &. rec.Qrdof Clark's request and its,refusalell:ch time that he made it, requests and refusals can undoubtedly be proved by parol, for the purposes desited,inthis case. It is not a record, or its cpntents;thatissought to'be,ptovedl The object.ofthe evidence is to pr9ve tha.{ Olark; ,had Qf,thefact that the county, by its dulydenied the:\J;alidity of the certificates, and repudiated qis,Q1aim to For.this purpose we thinkit is competent original ervidence. In4ePE!.ijdently of·this it is apparent from the other evidence in thl1t Clal.'k had knowledge of these facts while he continued to be the OWl}er and holder of the certificates. His claim to the swamp lands oUhe county was a matter of public interest. It concerned every in the county, and would be talked about and ll,lJphthJpgs,alway& ,fj,re .among, the people. 'l'he attij
pn1yr
LEMOINE V.DUNKLIN
491
tude of the countyin mattehvas, a/course, known to. the county officers, and, in all probability, to every intelligent citizen in the county. Besides, the deeds from the county to the purchasers ofthese lands were being placed on the public reeords, and the purchasers were entering into the adual possession of the lands and improving them. It is incredible that the man who claimed that the county was under obligation to deed the lands to him should be the only man in the county who did not know the county denied his right, and was selling the lands to others. It is a fair conclusion from all the evidence that Clark had knowledge that the county denied his rights and repudiated the trust as early as 1859, and it is conclusively shown that he had that knowledge in 1860, and that at these times he was the holder and owner of the certificates which are the founClation of this suit. The county began the sale of the lands in 1859, and down to the bringing of this suit had sold over 10,000 acres, mostly to persons who settled upon and improved the same. The lands have greatly increased in value. All the public rec.,. ords of the county have been twice destroyed by fire, once during the civil war, and again in 1872. The persons who were in official positions in the county at the time the complainant's cause of action uccrued, aud who had knowleClge of the rights of the county in the premises are dead, or have gone to parts unknown. Clark, then the owner and holder of these certificates, is dead, and his partner, Richardson, who was interested with him in s'ome of the certificates, is dEal!. Upon these facts the court below rightly dismissed the complainant's Rep. 219. The court will not bill on the ground of laches. 46 speculate as to what defense the county had to the demands now made upon it, or whether it had any. It is enough to know that with full knowledge that the county repudiated the trust, and was dealiug with the trust property as its own, the cestu'ique trust delayed for more than a quarter of a century to bring suit to enforce the trust. No excuse is shown for this long delay, and there. was no for it compatible with an honest purpose. By reasrm of this delay the facts of the transaction can never be known. The records of the' county have been destroyed, and the parties, save the county and the witnesses, are dead. It is a significant fact that even complainant himself is without the original evidence and records necessary to the maintenance of his suit, and is compelled to. ask the court to accept secondary evidence, for the reason, as stated by his counsel in' their brief, that "the original instruments, and the original records thereof, have been lost or Whether the complliinant'ssecondary evidence is the best attainable, or whether it is sufficient for the purpose intended, we need not inquire. The appeal made for its.admission and consideration proves that the ravages of time have not dealt alone with the defendant's records and evidence, and shows how futile it would be for court to attempt to deal with the case upt>p fu"ts which transpirell 30 years ago. . Time and' its acddents havf;linterposed all insurmountable obstacle to such an inquiry. But one thing is certain in the case, and that is the la.vse of time.
492 ,
ry:DERAL MPORTER,
vol. 51.
be impeached, and it testifies with conclusive force to the gross lllches of the complainant and those under whom he claims. Laches is im pu ted independently of the statute of Ii mitations. Courts of equity apply the doctrine on principles of their own, and time is only one of the Ci:rcurnstances to be considered in its application. It is settled, say the supreme court, "that laches is not, like lil,,;tations, a mere matter o.f time, but principally a question of the iniquity of permitting the Claim to be enforced,-an iniquity founded upon some change in the condition or relations of the property or the parties." Galtiher v. Cadwell, 145 U. S. 368, 12 Sup. Ct. Rep. .873; Godden v. Kimmell,99 U. S. 201j Mackallv. <JaBilear, 137 U. S. 556, 11 Sup. Ct. Rep. 178. .. Referring to this doctrine, Mr. Justice BREWER, in delivering the opinion gf this court in Naddo v. Bardon,4U. S. App. - , 51 Fed. Rep. A93, said: the records bf ancient and abandoned rights·. It requires of every owner that he take care of his property. ·and of every claimant that he make known his c'l.aims.Itgives to the actual and long possessor security. and induces and . justilielHlim in all efforts to make valuable the property he holds. It is a doctrire. favor. because its proper application works out justice and equity. aUll often bars the holder of a mere technical right. which he has abandoned for years, from enforcing it when lts· enforcement work large injury to many." It
prevents the resurrection of .st.a1e titles·. and forbids the spying out from
dQctI:ineis so wholesorpe.when wisely administered. as that of laches.
The time which will induce the court to apply the doctrine may be longer or shorter, depending on the circumsfances of the parcircumstances which will induce, its applicaticular case., . 4mong tion in a cqm.paI:atively brief. period are ,the changed condition of the property. in respect to its value and the number of irmocent parties to beinjuriously.affected, (Oil 00. v. Marbury, 91 U. S. 587; Felix v. Patrick, 145 U. S. 317, 12 Sup. Ct. Rep. 862; Galliher v. Oadwell, 145 U.S.·. 368, 12 Sup. Ct. Rep. 873j Railroad Co. v. Sage, 4 U. S. App.. 160, 1 O.,C. A. 256, .and 49 Fed. Rep. 315; Naddo v. Bndon, 4 U. S. App. ....:.-; 51 Fed. Rep, 493.) the death of the parties, the death or removal of'Vitnesses, and tl,ielossor destruction of public records or other muniment;:; of title. Nearly all of these circumstances are present in this case. .. ; . .. .. . Up'onthe autborities and the circumstances of tlliscase the appellant ",.as paired by laches many years before this suit was instituted. Relief has been oq the ground of lacl;ies, the delay was only 2 v.Eaton, 116 U. S. 33,6 Sup. Ct. Rep. 224; Societe FonC'fer.c Milliken,}35 U. S·. 304, 10 Sup. Ct. Rep. 823;} where it was 4 yea,rs, (Oil. Co.v. Marbury, Hayward v. U. S. 611; Cfe4it ,90. Cent. R. 09., 15 it was 5 years, Cllarwoodv. R,ail,rogdCo., 17 Wall. 78j Da.vison v.l)auis, 125 U. S. 90, 8'Sup. where it Was 6 years, (Galliher v. Dadwell, 8upra;) where it was 7 years, (Brown v. Cnunty ofBJ.!-ena Vista,95 U. S. 157;)
NADDOtl. BARDON.
493
where it was 10 years, and the suit was grounded on an express trust, (Naddo v. Ba1'do'll, Empra;) where it was 14 years, (Railroad Co. v. Sage, Empra;) and where it was 28 years, (Felix v. Patrick, Impra.) The list of cases might be multiplied indefinitely. They embrace all kinds of obligations and property rights, and turn upon facts as varied as the transactions of men. It is not necessary to look heyond the decisions of this court for authorities to support the proposition that complainant, if he ever had any rights, has long since lost them by laches of himself and those under whom he claims. Rail1'oad Co. v. Sage, supra; Naddo v. Bardon, 8Upra. The doctrine of these cases is fully supported by the authorities cited in the opinions and by the recent judgments of the supreme court in the cases of Galliher v. CadweU, supra, and Felix v. Patrick, supra. The decree of the circuit court is affirmed.
NADDO
v.
BARDON
et al.
(Oircuit Court of Appeals, Eighth Oircuit. July 5, 1892.)
No.ll2.
Plaintiff sued to recover land formerly owned by him and claimM by defendants under an execution sale, recorded deeds executed by his attorney in fact, and tax titles. Plaintiff alleged that the judgment was void, and that the other transfers were avoided hy fraud on the part of the attorney. The suit was brought 17 years after the execution sale and the deeds of the attorney, and 13 years after the tax titles were recorded. To excuse his delay he alleged that for 10 or 12 years be had lived in Canada, and that "until recently he had not learned of the extent to which the transfers" sought to be avoided had been made; that for about 10 years he had known that the attorney and others claimed that he had lost all rights in the land, but until recently he had been too poor to enforce his "rights. HeW, that he was of laches, which the allegations of the bill were not sufficient to excuse. 47 Fed..Rep. 782, affirmed. 'rhe fact that defendant was complainant's trustee under an express trust will not avoid the effect of laches where the bill itself alleges that more than 10 years filed defendant claimed that complainant had lost all right to the subject of the trust, and refused to account to him. 47 Fed. Rep. 782, affirmed.
CONSTITUTES-ExcUSE.
SAME-EXPRESS TRUST-REPUDIATION.
8.
SAlIrE-FRAUD-WHAT CONSTITUTES.
Where a person assumes the management of property under a power of attorney only days before his principal's title thereto is divested by the expiration of the period of redemption from a sheriff's sale, his failure to discharge the judgment and rede.em from prior tax·sales is not, in the absence of a showing of means wherewith to accomplish these purposes, such a fraud as will avoid the effect of laches on the principal's suit to recover the property from the agent or his g-rantees claiminll: under such sheriff's sale and tax titles.
Appeal from the Circuit Court of the United States for the District of Minnesota. Affirmed. Statement by· BREWER, Circuit Justice: This case comes on appeal from the circuit court of the district of Minnesota. In that court a demurrer to the bill was sustained, and a decree entered dismissing the bill.