LyoN, C. J.
'There can be no doubt the complaint states facts sufficient to show that the plaintiff is entitled to enforce a resulting trust in the land in controversy; that is to say, she is entitled to have vested in her the absolute title to such land, unless she is excluded from such relief by the statutes of limitation of by her laches in the enforcement of her right. Before the enactment of our statute of uses and trusts, she would have been entitled to assert and enforce such trust, even though she consented that the land for which she paid should be conveyed to her husband, or had she personally taken the conveyance thereof in his name. In such cases, however, the statute abolishes the trust except as to creditors of the person paying for the land, but saves it to such person where, as in this case, the grantee named in the conveyance took it as an absolute conveyance in his own name without the knowledge or consent of the person paying the consideration, unless a Iona fide purchaser has intervened. R. S. secs. 2077-2088. If this action is not barred by some statute of limitation, we do not think, under the circumstances of the case disclosed in the complaint, that laches should be imputed to the plaintiff to defeat it. Although during more than twenty years before her husband died she knew he had taken the conveyance in his own name, yet she was residing with him upon the land, using it as the family homestead, and so far as it appears he recognized and ad[336]*336mitted her right to the land and asserted no interest in or claim to it hostile to' her absolute ownership thereof, and the rights of no other person have intervened to render it inequitable to enforce the trust in her favor. The heirs of her husband (the defendants) have no greater equities against the enforcement of the trust than her husband would have had if the action to enforce it had been commenced against him in his lifetime. Under these circumstances it should not be held that she ought to have endangered the peace and comfort of the family — perhaps the very existence of their home — by engaging in a lawsuit with her husband over the title to the land in question, and that her right thereto is defeated because she did not do so. Courts of equity do not impute laches by any iron rule, but allow circumstances to govern their decision in every case. And it is said: “ Where the obligation is clear, and its essential character has not been affected by the lapse of time, equity will enforce a claim of long standing as readily as one of recent origin; certainly, as between the immediate parties to the transaction.” 13 Am. & Eng. Ency. of Law, 674; U. S. v. Alexandria, 19 Fed. Rep. 609, and cases cited. The controlling question in the case is, therefore, Does any statute of limitation bar the plaintiff’s right to maintain this action?
It is now thoroughly well settled, by authorities too uniform to require citation and too numerous to cite here, that as between a trustee of an express trust cognizable only in a court of equity, and his cestui que trust, concerning matters connected with the trust relation, no statute of limitation, nor any bar by analogy thereto, can be relied upon to defeat the execution of the trust, unless the full period of limitation has elapsed since the denial or repudiation by the trustee of the trust obligation. If any one desires to consult the cases holding this doctrine he will find many of them cited in the volume of the Encyclopedia of Law above [337]*337cited, in note 4, on page 683. The reason and grounds of the above rule are thus stated by Mr. Justice Gbay in Speidel v. Henrici, 120 U. S. 377, 386: “Express trusts are not within the statute of limitations, because the possession of the trustee is presumed to be the possession of the cestui que tnist.” Hence it would seem that in order to set the statute running against such trust a surrender of the trust property is essential, because without such surrender there can be no effectual repudiation of the trust.
It is freely conceded that there are many authorities which, in general terms, assert the rule that the statute of limitations runs against all implied, resulting, or constructive trusts. But it is apprehended that the court would fall into serious error were it to accept and apply that rule without qualification to all cases involving the enforcement of such trusts. The trust here sought to be enforced is not an express, but a resulting, trust. Yet it is enforcible only in equity, and the alleged trustee (plaintiff’s husband) from the inception of the trust until he died freely admitted and never denied the trust claimed, and never had any adverse possession of the property; for he and his wife always occupied it jointly as their homestead, and it does not appear that he ever asserted any interest in, or exercised any control of, the land, hostile to the trust here sought to be enforced.
Thus we find in this resulting trust every element which operates to take an express trust out of the statutes of limitation, and prevents the statute from running against it until after-the trust has been effectually repudiated. Under these circumstances it would be illogical to hold the resulting trust within the statute, and the express trust not rvithin it. We do not believe the law makes any such imaginary distinction.
In the leading case of Kane v. Bloodgood, 7 Johns. Ch. 90, decided by Chancellor KbNT in 1823, nó' distinction [338]*338seems to have been made between express trusts and any other kind of trusts, in respect to the effect of statutes of limitation upon them. Whether, in any given case, the trust-was or was not affected by those statutes, was made to depend entirely upon the presence or absence of the qualities and elements above mentioned. The doctrine of the cáse seems to be correctly stated in a headnote as follows: “ Those trusts which are mere creatures of a court of equity, and not within the cognizance of a court of law, are'not within the statute of limitations. As long as there is a continuing and subsisting trust, acknowledged or acted on by the parties, the statute does not apply; but if the trustee denies the right of his cestui que trust, and the possession of the property becomes adverse, lapse of time from that period may constitute a bar in equity; but other trusts, which are the ground of an action at law, are not exempted from the operation of the statute.” To the same effect are the cases of Elmendorf v. Taylor, 10 Wheat. 152; Dow v. Jewell, 18 N. H. 340; Taylor v. Holmes (N. C.), 14 Fed. Rep. 498, 508; Springer v. Springer, 114 Ill. 550; Reynolds v. Sumner, 126 Ill. 58; Otto v. Schlapkahl, 57 Iowa, 226, 230; Gebhard v. Sattler, 40 Iowa, 152; Lakin v. Sierra B. G. M. Co. (Cal.), 25 Fed. Rep. 337, 347. In the case last cited Judge Sawyer said: “Upon well-settled principles of law the statute [of limitations] does not begin to run against a cestui que trust in possession until the date of his ouster therefrom, no matter whether the trust be express or implied. Love v. Watkins, 40 Cal. 569; McCauley v. Harvey, 49 Cal. 497; Altschul v. Polack, 55 Cal. 633.” In Howell v. Howell, 15 Wis. 55, Chief Justice DixoN said, of the claim that the statute of limitations does not commence to run until the trust is denied, that the doctrine was applicable only to express or acknowledged trusts. This remark evidently implies that the chief justice was of the opinion that an
Free access — add to your briefcase to read the full text and ask questions with AI
LyoN, C. J.
'There can be no doubt the complaint states facts sufficient to show that the plaintiff is entitled to enforce a resulting trust in the land in controversy; that is to say, she is entitled to have vested in her the absolute title to such land, unless she is excluded from such relief by the statutes of limitation of by her laches in the enforcement of her right. Before the enactment of our statute of uses and trusts, she would have been entitled to assert and enforce such trust, even though she consented that the land for which she paid should be conveyed to her husband, or had she personally taken the conveyance thereof in his name. In such cases, however, the statute abolishes the trust except as to creditors of the person paying for the land, but saves it to such person where, as in this case, the grantee named in the conveyance took it as an absolute conveyance in his own name without the knowledge or consent of the person paying the consideration, unless a Iona fide purchaser has intervened. R. S. secs. 2077-2088. If this action is not barred by some statute of limitation, we do not think, under the circumstances of the case disclosed in the complaint, that laches should be imputed to the plaintiff to defeat it. Although during more than twenty years before her husband died she knew he had taken the conveyance in his own name, yet she was residing with him upon the land, using it as the family homestead, and so far as it appears he recognized and ad[336]*336mitted her right to the land and asserted no interest in or claim to it hostile to' her absolute ownership thereof, and the rights of no other person have intervened to render it inequitable to enforce the trust in her favor. The heirs of her husband (the defendants) have no greater equities against the enforcement of the trust than her husband would have had if the action to enforce it had been commenced against him in his lifetime. Under these circumstances it should not be held that she ought to have endangered the peace and comfort of the family — perhaps the very existence of their home — by engaging in a lawsuit with her husband over the title to the land in question, and that her right thereto is defeated because she did not do so. Courts of equity do not impute laches by any iron rule, but allow circumstances to govern their decision in every case. And it is said: “ Where the obligation is clear, and its essential character has not been affected by the lapse of time, equity will enforce a claim of long standing as readily as one of recent origin; certainly, as between the immediate parties to the transaction.” 13 Am. & Eng. Ency. of Law, 674; U. S. v. Alexandria, 19 Fed. Rep. 609, and cases cited. The controlling question in the case is, therefore, Does any statute of limitation bar the plaintiff’s right to maintain this action?
It is now thoroughly well settled, by authorities too uniform to require citation and too numerous to cite here, that as between a trustee of an express trust cognizable only in a court of equity, and his cestui que trust, concerning matters connected with the trust relation, no statute of limitation, nor any bar by analogy thereto, can be relied upon to defeat the execution of the trust, unless the full period of limitation has elapsed since the denial or repudiation by the trustee of the trust obligation. If any one desires to consult the cases holding this doctrine he will find many of them cited in the volume of the Encyclopedia of Law above [337]*337cited, in note 4, on page 683. The reason and grounds of the above rule are thus stated by Mr. Justice Gbay in Speidel v. Henrici, 120 U. S. 377, 386: “Express trusts are not within the statute of limitations, because the possession of the trustee is presumed to be the possession of the cestui que tnist.” Hence it would seem that in order to set the statute running against such trust a surrender of the trust property is essential, because without such surrender there can be no effectual repudiation of the trust.
It is freely conceded that there are many authorities which, in general terms, assert the rule that the statute of limitations runs against all implied, resulting, or constructive trusts. But it is apprehended that the court would fall into serious error were it to accept and apply that rule without qualification to all cases involving the enforcement of such trusts. The trust here sought to be enforced is not an express, but a resulting, trust. Yet it is enforcible only in equity, and the alleged trustee (plaintiff’s husband) from the inception of the trust until he died freely admitted and never denied the trust claimed, and never had any adverse possession of the property; for he and his wife always occupied it jointly as their homestead, and it does not appear that he ever asserted any interest in, or exercised any control of, the land, hostile to the trust here sought to be enforced.
Thus we find in this resulting trust every element which operates to take an express trust out of the statutes of limitation, and prevents the statute from running against it until after-the trust has been effectually repudiated. Under these circumstances it would be illogical to hold the resulting trust within the statute, and the express trust not rvithin it. We do not believe the law makes any such imaginary distinction.
In the leading case of Kane v. Bloodgood, 7 Johns. Ch. 90, decided by Chancellor KbNT in 1823, nó' distinction [338]*338seems to have been made between express trusts and any other kind of trusts, in respect to the effect of statutes of limitation upon them. Whether, in any given case, the trust-was or was not affected by those statutes, was made to depend entirely upon the presence or absence of the qualities and elements above mentioned. The doctrine of the cáse seems to be correctly stated in a headnote as follows: “ Those trusts which are mere creatures of a court of equity, and not within the cognizance of a court of law, are'not within the statute of limitations. As long as there is a continuing and subsisting trust, acknowledged or acted on by the parties, the statute does not apply; but if the trustee denies the right of his cestui que trust, and the possession of the property becomes adverse, lapse of time from that period may constitute a bar in equity; but other trusts, which are the ground of an action at law, are not exempted from the operation of the statute.” To the same effect are the cases of Elmendorf v. Taylor, 10 Wheat. 152; Dow v. Jewell, 18 N. H. 340; Taylor v. Holmes (N. C.), 14 Fed. Rep. 498, 508; Springer v. Springer, 114 Ill. 550; Reynolds v. Sumner, 126 Ill. 58; Otto v. Schlapkahl, 57 Iowa, 226, 230; Gebhard v. Sattler, 40 Iowa, 152; Lakin v. Sierra B. G. M. Co. (Cal.), 25 Fed. Rep. 337, 347. In the case last cited Judge Sawyer said: “Upon well-settled principles of law the statute [of limitations] does not begin to run against a cestui que trust in possession until the date of his ouster therefrom, no matter whether the trust be express or implied. Love v. Watkins, 40 Cal. 569; McCauley v. Harvey, 49 Cal. 497; Altschul v. Polack, 55 Cal. 633.” In Howell v. Howell, 15 Wis. 55, Chief Justice DixoN said, of the claim that the statute of limitations does not commence to run until the trust is denied, that the doctrine was applicable only to express or acknowledged trusts. This remark evidently implies that the chief justice was of the opinion that an acknowledged trust, though not an express [339]*339one, is on the same footing in respect to the statute as an express trust, upon which, as we have seen, the statute does not commence to run until the trust is denied and repudiated. Much doctrine will be found laid down in the textbooks and in many other adjudications in the same direction, but the view we have taken of the question involved seems so well grounded in principle that we do not care to further comment upon or cite the authorities.
We hold, therefore, that because it appears from the complaint that the trust in question is cognizable only by a court of equity, because the trustee always confessed the trust, because he never had any adverse possession of the trust property, and because his heirs have no equities superior to those of the trustee when living, the complaint does not show that any statute of limitation has run against the cause of action therein stated.
We thus reach the conclusion that the complaint states a valid, subsisting cause of action in favor of plaintiff against defendants, without resorting to the rule stated in Second Nat. Bank v. Merrill, 81 Wis. 151, to the effect that statutes of limitation do not run against claims between husband and wife. For authorities to that proposition, in addition to those cited in the opinion of Mr. Justice OetoN, see cases cited in 13 Am. & Eng. Ency. of Law, p. Ill, note 3.
By the Court.— The order of the circuit court sustaining the demurrer to the complaint is reversed, and the cause will be remanded with directions to overrule such demurrer.