Pickens v. Merriam

242 F. 363, 155 C.C.A. 139, 1917 U.S. App. LEXIS 1888

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 1917
• Docket: No. 2783
• Status: Published

Opinion

MORROW, Circuit Judge

(after stating the facts as above). D The statutory period in which an action may be brought in California for relief on the ground of fraud is three years. The appellees invoke this statute, and the analogous doctrine of laches in equity for a corresponding period, as a bar to this cause of action. But the cause of action in-such case is not deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake. Section 338, subd. 4, California Code of Civil Procedure. This last provision is derived from the principles of equity jurisdiction. Bailey v. Glover, 88 U. S. (21 Wall.) 342, 348, 22 L. Ed. 636.

Ferdinand Fensky died intestate in the county of Dos Angeles, Cal., on August 7, 1903, leaving property in California and in Topeka, Kan~ The intestate died without issue, but he left a widow, Jeanette Fensky, and other heirs at law, including the complainants, who were his sisters. On September 9, 1903, M. T. Campbell was appointed administrator of the estate in Kansas, by the probate court of Shawnee county, and on October 15, 1903, Jeanette Fensky, the widow was appointed administratrix of the estate in California, by the superior court of Ros Angeles county. On July 29, 1904, the complainant Louisa Pick-ens, for the sum of $1,000, executed and delivered to M. T. Campbell, the administrator of the estate in Kansas, for Jeanette Fensky, a release and quitclaim, releasing and conveying unto the said Jeanette Fensky all of the right, title, and interest of the said complainant in and to the property and estate of her deceased brother. On August 3, 1904, the complainant Johanna Schutt, for the like sum of $1,000, executed and delivered to the said Campbell, for Jeanette Fensky, a similar release and quitclaim releasing and conveying unto the said Jeanette Fensky all of the right, title, and interest of the said complainant in and to the property, assets, and estate of her deceased brother. Jeanette Fensky died on July 8, 1908, and on August 1, 1908, the defendant J. H. Merriam was appointed administrator of the estate of Jeanette Fensky.

The bill of complaint in this case was not filed until July 8, 1914. With the releases and quitclaims executed by the complainants in 1904 standing against their cause of action for alleged fraudulent acts in dealing with the estate of Ferdinand Fensky, the statute of limitations and the doctrine of laches would be a bar to this suit, but for the allegation in the bill that not until late in the summer of 1912 did the complainants, or either of them, have any notice or suspicion of the truth respecting the amount, extent, and value of the estate of their deceased brother, or of the frauds and fraudulent conduct of M. T. Campbell, Jeanette Fensky, and J. H. Merriam in dealing with the said estate in the matters charged in the bill of complaint. This discovery is alleged to have been made in July, 1912, when—

“'one of the daughters of the complainant Louisa Pickens, while visiting in Los Angeles. Cal., accidentally secured access to the correspondence between the said M. T. Campbell and the said Jeanette Fensky, which disclosed to said daughter a part of the truth relative to the estate of Ferdinand Fensky, and the dealings of the said Campbell and the said Jeanette Fensky in reference thereto.”

Referring to certain real estate located in the state of Kansas, which, it is alleged, the deceased, Ferdinand Fensky, had owned, and, prior to his death, had sold, and the proceeds of which belonged to the deceased as personal property, subject to distribution to the complainants and other heirs at law of the deceased, but which was fraudulently represented by the said Campbell and the said Jeanette Fensky to the complainants as not having been sold, and, under the law of Kansas, had descended directly to the widow, without complainants having any interest therein. It is alleged that the said real estate had been sold, although the deeds had not been delivered to the purchasers, and complainants had an inheritable interest in the proceeds as heirs at law of the said Ferdinand Fensky. It is further alleged that it was not until the early part of 1913 that the complainants had any notice or knowledge that the deeds conveying the said real estate had not been delivered to the purchasers, or any notice or knowledge of -the facts relating to the said estate.

Prior to the commencement of this action the complainants brought suit by petition in the district court of Kansas against the administrator of the administrator who administered upon the estate of Ferdinand Fensky in Kansas and his bondsmen to have the settlement of the latter estate set aside for fraud, and for an accounting of the assets with which he was chargeable. The cause of action in that case •is identical with the cause of action in this case, except that the former relates to the estate in Kansas and the latter to the estate in California. In the district court there was a demurrer to the petition interposed by the defendants upon substantially the same grounds as the motion to dismiss the complaint in this case. The demurrer was overruled, and the defendants appealed. In the Supreme Court of Kansas these questions were reviewed, and the cause of action stated in the petition sustained (Pickens v. Campbell, 98 Kan. 518, 159 Pac. 21); the court holding, among other things, that in an action for relief on the •ground of fraud, brought more than two years after its alleged perpetration, the petition, to be good against a demurrer, need not set out the manner of its discovery, and that constructive knowledge of the falsity of a statement that real estate, the record title to which stood in an intestate at the time of his death, had not been sold by him, is not a matter of law to be implied on the theory that it could have been discovered through inquiry from the purchasers. This decision disposes of these questions so far as they relate to the estate in Kansas and is persuasive as to the rules applicable to the same questions as they relate to the^estate in California.

Returning, now, to the bill of complaint in this case, and its reference to certain deeds to’ real estate in Ros Angeles county, Cal., executed by Jeanette Fensky in her lifetime in favor of certain of the defendants, without consideration, and delivered after her death to the ■grantees, and the knowledge of that fact by J. H. Merriam, the administrator of her estate, and his omission to account therefor in his inventory of the estate: It is alleged that it was not until early in 1913 that the complainants had any notice or knowledge that said deeds had not been delivered during the lifetime of the said Jeanette Fensky. It is further alleged that all of the estate of the said Ferdinand Fensky was his separate property, and as such, upon the death of the widow, the said estate and its avails descended ratably to the surviving brothers and sisters of the said Ferdinand Fensky. It is alleged that complainants believed the statements made by Jeanette Fensky, Campbell, and Merriam concerning the matters stated, and that, except for such representations, they would not have released the estate of Ferdinand Fensky from their just claims, but would have enforced the same.

The appellees contend that the suspension ■ of the statute of limitations and of the analogous doctrine of laches until discovery by the aggrieved party of the facts constituting the fraud is qualified by the rule that knowledge of facts which would put a reasonably prudent person upon inquiry is equivalent to a discovery, and, with respect to the principles governing the statement of such a cause of action, cite the case of Wood v. Carpenter, 101 U. S. 135, 140, 25 L. Ed. 807, where the Supreme Court said:

“In this class of cases the plaintiff is held to stringent rales of pleading and evidence, ‘and especially must there be distinct averments as to the time when the fraud, mistake, concealment, or misrepresentation was discovered, and what the discovery is, so that the court may clearly see whether, by ordinary diligence, the discovery might not have been before made.’ Stearns v. Page, 7 How. 819, 829 [12 L. Ed. 928]. * * * A, party, seeking to avoid the bar of the statute on account of fraud, must aver and show that he used due diligence to detect it, and, if he had the means of discovery in his power, he will be held to have known it.”

The appellees contend that under this rule the bill of complaint in this case does not sufficiently state a cause of action. On the other hand, the appellants contend that when the fraud, which is the foundation of the suit, has been concealed, or is of such a character as to conceal itself, the statute does not begin to run until the fraud is discovered by the party suing, and that the statement in the bill of complaint concerning the facts of concealment and discovery is sufficient. In support of this rule, the appellants cite the case of Bailey v. Glover, 88 U. S. (21 Wall.) 342, 347, 22 L. Ed. 636. In this case Mr. Justice Miller, speaking for the court, said:

“In suits in equity, where relief is sought on the ground of fraud, the authorities are without conflict in support of the doctrine that, where the ignorance of the fraud has been produced by affirmative acts of the guilty party in concealing the facts from the other, the statute will not bar relief, provided suit is brought within proper time after the discovery of the fraud.”

Concerning this rule, the learned justice said further (88 U. S. [21 Wall.] 349, 22 L. Ed. 636):

•‘And we are also of opinion that this is founded in a sound and philosophical view of the principles of the statutes of limitation. They were enacted to prevent frauds — to prevent parties from asserting rights after the lapse of time had destroyed or impaired the evidence which would show thar such rights never existed, or had been satisfied, transferred, or extinguished, if they ever did exist. To hold that by concealing a fraud, or by committing a fraud in a manner that it concealed itself, until such time as the party committing the fraud could plead the statute of limitations to protect it, is to make the law which was designed to prevent fraud the means by which it is made successful and secure.”

In Rosenthal v. Walker, 111 U. S. 185, 4 Sup. Ct. 382, 28 L. Ed. 395, the action was brought by the assignee of a bankrupt to recover the value of property alleged to have been fraudulently transferred by the bankrupt in violation of the provisions of the Bankrupt Act (Act July 1, 1898, c. 541, 30 Stat. 544). The defendant resisted recovery on the ground that the action was not brought within two years from the time when the cause of action accrued. The petition disclosed upon its face that the suit was brought more than four years after the cause of action arose, and more than three years after the appointment of the plaintiff as assignee. The plaintiff replied that the facts were fraudulently concealed and that the suit was brought within two years after they came to his knowledge. It was alleged in the petition that both the said Carney (the bankrupt) and the defendant (Rosenthal, to whom the bankrupt had transferred certain of his property), kept concealed from the plaintiff (the assignee) "the fact of the said payment and transfer of the said aggregate sum of $30,000, * * * and * * * the fact of the sale, transfer, and conveyance of the said goods * * * and that he, tire said plaintiff, did not obtain knowledge and information of the said matters, or either of them, until the 29th day of November, 1879, and then for the first time the Said matters were disclosed to him and brought to his knowledge.” The plaintiff relied upon Bailey v. Glover, supra, to sustain the cause of action upon the averment of concealment after the statute of limitations had run. The defendant relied upon Wood v. Carpenter, supra, to defeat the cause of action as stated in the complaint, notwithstanding the averment of concealment. The court sustained the cause of action, saying (111 U. S. 191, 4 Sup. Ct. 385, 28 L. Ed. 395):

“The case of Bailey v. Glover has often been cited by this court, hut has never been doubted or qualified.”

In Traer v. Clews, 115 U. S. 528, 6 Sup. Ct. 155, 29 L. Ed. 467, the same question was again before the Supreme Court. The allegations in the complaint as to concealment and discovery were:

“Mrs. Traer’s connection with the transaction was studiously concealed from plaintiff and his assignor, and plaintiff had no knowledge of it previous to his discovery, September 24, 1879.”

It was objected that there was neither pleading nor proof to avoid the bar, under the rule stated in Wood v. Carpenter. The court held that under the ruling in Bailey v. Glover, which had never been overruled, doubted, or modified by the court, the pleadings and evidence were sufficient, and the suit was not barred by the statute of limitations. In 19 Am. & Eng. Ency. 243, the rule is stated as follows:

“It has always been the rule in equity that the defendant’s fraudulent concealment of a cause of action will postpone the running of the statute until such time as the plaintiff discovers the fraud; the defendant, having, by his own wrongdoing, prevented the plaintiff from instituting his suit, will not be permitted to take advantage of his own wrong by setting up the statute as a defense. This rule is provided for by statute in many of the states, but exists in equity courts independently of statutory provision.”

See, also, 25 Cyc. 1214; Pickens v. Campbell, supra. This is the rule in California. Kane v. Cook, 8 Cal. 449; Currey v. Allen, 34 Cal. 254, 257.

[ 1 ] 2. Coming to the specific question, whether the appellants have been guilty of laches such as will defeat the cause of action stated in the bill of complaint, we find a broader field of inquiry than is involved in the running of a statute of limitations. As said by the Supreme Court in Galliher v. Cadwell, 145 U. S. 368, 372, 12 Sup. Ct. 873, 874 (36 L. Ed. 738):

“The cases are many in which this defense has been invoked and considered. It is true that by reason of their differences of fact no one case becomes an exact precedent for another, yet a uniform principle pervades them all. They proceed on the assumption that the party to whom laches is imputed has knowledge of his rights, and an ample opportunity to establish them in the proper forum; that by reason of his delay the adverse party has good reason to believe that the alleged rights are worthless, or have been abandoned; and that, because of the change in condition or relations during this period of delay, it would be an injustice to the latter to permit him to now assert them. * ° * Laches is not like limitation, a mere matter of rime; but principally a question of the inequity of permitting the claim to be enforced — an inequity founded upon some change in the condition or relations of the property or the parties.”

[2] The appellants contend that a change of condition will be presumed, and that prejudice may be presumed from the lapse of time; that a change in position might have occurred; that an important witness has died; that a large part of the estate consisted of real property situated in I,os Angeles and San Pedro; and that a marked increase in the value of the property will be presumed. It may appear to be a too strict adherence to the rules of procedure to hesitate to entertain the last-named presumption; but we think such matters are matters of defense, and should be established by proof upon the hearing of the case. We find nothing in the bill of complaint showing such a change of conditions in the property, or in the relations of the parties thereto, or such a lack of equity as would prevent a court of equity from granting appropriate relief.

[3] 3. The next question is whether the acts of fraud alleged in the bill of complaint are intrinsic or extrinsic to the matters determined by the superior court in the probate proceedings. The relief sought is, in effect, among other tilings: (a) An accounting by the defendant Mcrriam, the administrator of the estate of Jeanette Fensky, for so much of the estate as has come into his hands and for which no account has been rendered; (b) that the deeds of release and quitclaim, executed by the complainants to the said Jeanette Fensky be declared fraudulent and void and of no effect; (c) that the deeds under which the defendants Wellke, Katzung, Schmidt, Farnsworth, Ferguson, and Roveland claim certain lands conveyed to them by Jeanette Fensky be declared invalid and void; and that neither of the defendants has any right, title, or interest whatever in or to the said estate or any part of the same. The leading case upon this question is that of United States v. Throckmorton, 98 U. S. 61, 65, 25 L. Ed. 93, cited by the appellees. In that case Mr. Justice Miller, speaking for the court, said:

“There are no maxims of the law more firmly established, or of more value in the administration of justice, than the two which are designed to prevent repeated litigation between the same parties in regard to the same subject of controversy, namely, ‘Interest reipublieso, ut sit finis litium,’ and ‘Nemo debet bis vexari pro una et eadnm causa.’ * * But there is an admitted exception to this general rule in cases where, by reason of something done by the successful party to a suit, títere was in fact no adversary trial or decision of the issue in the case; where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent.”

The court then mentions a number of acts of this character, and concludes as follows:

•‘These and similar cases, which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a now suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing.”

Because of the conduct of the defendants in concealing the facts concerning the estate, it appears that there has been no adversary trial or decision upon these issues; and we find nothing in the proceedings or decree of the superior court of Los Angeles county, as set up in the bill of complaint, to estop the complainants from having these matters inquired into, and the question of the alleged fraud determined by the court.

[4, 5] How far such a hearing may go is indicated in the case of Griffith v. Godey, 113 U. S. 89, 5 Sup. Ct. 383, 28 L. Ed. 934, where Mr. Justice. Field, delivering the opinion of the court, said:

“It is well established that a settlement of an administrator’s account, by the decree of a probate court, does not conclude as to property accidentally or fraudulently withheld from the account. If the property he omitted by mistake, or be subsequently discovered, a court of equity may exercise its jurisdiction in the premises, and take such action as justice to the heirs of the ■deceased or to the creditors of the estate may require, even if the probate court might, in such case, open its decree and administer upon the omitted property; and a fraudulent concealment of property, or a fraudulent disposition of it, is a general and always existing ground for the interposition of equity.”

The case of Lataillade v. Orena, 91 Cal. 565, 27 Pac. 924, 25 Am. St. Rep. 219, involved questions very similar to those involved in this case. The suit was against a guardian for an accounting of the estate of a minor. It was alleged in the complaint that from time to time after 1849 defendant sold certain property, belonging to plaintiff’s estate, but for what sums plaintiff was not advised. In 1868 defendant sold certain cattle and ranchos, likewise belonging to plaintiff’s estate, for which he received payment, and mingled the money with his own funds, and wrongfully and fraudulently converted the same to his own use, with intent to deprive the plaintiff of his share thereof. It was charged in the complaint that the defendant concealed the facts from the plaintiff, and wrongfully and fraudulently represented to him that his father died insolvent, and that he had no interest in the cattle and ranchos. The defendant, as guardian of the plaintiff, filed in court an inventory purporting to show all the estate of the ward, but did not include in the inventory any of the above-mentioned property, anti, when he applied for and obtained a final discharge from his trust, he falsely stated in his petition and represented to the court that he had returned a full and true inventory of all the estate of the plaintiff which had come into his hands as guardian, and had paid over and delivered the same to the plaintiff. The plaintiff was born December 2, 1849, and became of age December 2, 1870. The suit was not filed until February 21, 1887, and called for an accounting from the guardian, mainly for the transactions in the sales of cattle and ranchos made in 1868. The defendant demurred to the complaint, substantially upon the grounds upon which the motion to dismiss was based in the present case. The court sustained the demurrer. This judgment was reversed in the Supreme Court, with directions to overrule the demurrer. The Supreme Court cited, in support of its decision, among others, the case of Griffith v. Godey, 113 U. S. 89, 5 Sup. Ct. 383, 28 L. Ed. 934. We do not find that this case has been overruled or in any way modified.

In Pickens v. Campbell, supra, the Supreme Court of Kansas, referring to the facts of this case, said:

‘•The defendants maintain that the order of settlement lian the force of a judgment, and is not open to attack by the method here pursued. The allegation, however, is that the settlement was procured without an actual accounting as to the claims of these plaintiffs, by the use of a release of all demands against the estate (including that in California as well as that in Kansas) which had been obtained by intentionally false statements concerning fads which affected its value, particularly by the representation that the Kansas real estate had not been sold by Fensky, in which case the entire title would, of course, have vested in his widow upon his death. A fraud so accomplished we regard as extrinsic to the issue determined by the probate court, and therefore capable of forming a basis for setting aside its order. See Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079, 25 L. R. A. (N. S.) 861, note 106 Am. St. Rep. 640-642, 645-647.”

We must accept these cases as stating the law applicable to this case, and we conclude, therefore, that the allegations of the hill of complaint are sufficient to sustain the cause of action.

Decree reversed, and the cause remanded for further proceedings in conformity with this opinion.