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"While the dry, naked, legal title to the property may not be in plaintiff, yet its trustees hold it in trust for the uses of plaintiff, and their ownership and possession is the ownership and possession of the plaintiff. We cannot understand how it is material to the interests of defendants in the action whether the plaintiff or its trustees is technically seised of the legal title to this realty; the plaintiff certainly has sufficient interest to bring this action.”

In Fleming v. Holt, 12 W. Va. 143, the court held that the cestui que trust might bring a suit in equity for the specific execution of a contract, made by a third party with the trustee in a deed of trust, for the purchase of a tract of land conveyed by the deed of trust, and make the trustee and purchaser of the land and grantor in the deed of trust defendants. The court in its opinion said:

"The trustee holding the legal title must be made a party in a suit in equity concerning the trust subject, and the cestui que trust must generally be also made parties. But it is very often regarded by a court of equity, though never by a court of law, that it is immaterial whether a particular party in certain cases is made a plaintiff or defendant. In the present case it seems to me immaterial whether the trustee, Conrad, was a party plaintiff or defendant. In suits of this character he has frequently been made a party defendant without the bill's assigning any reason why he was not made a plaintiff. Thus in Cope v. Parry, 2 Jac. & W.538, Cope made a covenant with Jones, a trustee, to convey certain property to him in trust for certain parties. They instituted a suit against Cope's assignees to enforce a specific performance of Cope's covenant with their trustee, but they not only did not join the trustee, Jones, as a coplaintiff with them, but did not even make him a defendant. The court did not dismiss the bill on that account, but simply required the plaintiffs, the cestui que trust, to make the trustee, Jones, a party defendant. In Hool: v. Kinnear, 3 Swanst. Ch. 417, it was contended by counsel 'that a chanceit court never decrees a specific execution of an agreement but at the instance of thu party with whom the contract was made.' But the lord chancello · in his decision says: 'It is certain that, if one person enters into an agreement with another for the benefit of a third person, such third person may come into a court of equity and compel a specific performance.' And this point was so expressly decided in Cooke v. Cooke, 2 Vern. 36. While the trustee, Conrad, might more appropriately have joined with the cestui que trust, Linn's adininistrator, as one of the plaintiffs in this cause, still, as he has been made a defendant, this is sufficient.”

In Grant v. Insurance Co., 121 U. S. 112, 7 Sup. Ct. Rep. 841, the supreme court said:

"The objection made is that the bill does not show a right in the plaintiff to maintain the suit; that each trustee rests in its trustees a legal title to the property covered by it, with power to sell; that the interest of the cestui que trust is represented by the trustees, who must enforce the trust; and that unless the bill shows a failure on their part to do so, through incapacity or otherwise, the cestui que trust has no standing in court in its own right. The bill alleges that in 12 of the deeds of trust executed January 1, 1872, to Gallaudet and Paine as trustees, the length of notice of the time and place of sale by advertisement is left blank; that this would prevent the trustees from executing such power of sale, but that in a court of equity the deeds would be considered as mortgages. It is urged on the part of Grant that this defective power of sale renders it the more necessary that the trustees, rather than the cestui que trust, should act, in either seeking a correction of the defect or in enforcing the trust; but we think there is nothing in the objection thus raised. The case is one clearly of equity cognizance, for the reasons above set forth, and those contained in the opinion of the general term, above quoted. No objection is made on the part of any of the trustees to the maintenance of the suit. The bill is taken as confessed as to all of them, and there is no

possible prejudice to the defendant Grant in the bringing of the bill in its actual shape by the cestui que trust."

In Harrison v. Rowan, 4 Wash. C. C. 206, Justice Washington, in delivering the opinion of the court, in a case where the trustee and others claiming the benefit of the trust were joined as plaintiffs, said:

“That the trustee might maintain an ejectment against the defendants to recover the possession of the lands now in controversy, on the trial of which suit the validity of the disputed will might, and necessarily would, be decided, cannot be denied; nor does the court think it necessary to decide whether, were this suit brought by the trustee alone, he would or would not be entitled to the relief prayed for. The real plaintiffs in this cause are those who claim a beneficial equitable interest in the land devised by the will, and it will not, nor has it been, denied that the court of chancery has a clear, original jurisdiction in such a case. Not only so, but that jurisdiction is exclusive; the cestui que trust having no remedy at common law, either against the trustee, or against any other person holding advers: ly the fund charged with the trust. It is true, as has been observed, that the trustee has a remedy at law to recover the possession, and thus to enable him to execute the trust. But are the cestuis que trusts obliged to wait until this course has been pursued? They are at all times competent to assert their equitable demands, however well or ill inclined the trustee may be to perforni his duty. It was not, indeed, denied by the defendants' counsel but that this bill might have been maintained by those persons if the trustee had been a defendant in the cause, but it seemed to be supposed that this acknowledged equity is tainted by the co-operation of the trustee. If, indeed, there was any weight in this argument, the court would dismiss the bill as to the trustee; but surely it could afford no good reason for dismissing it as to the other plaintiffs, who can claim relief nowhere but in equity. But there is in reality nothing in the objection. The jurisdiction of court of chancery, upon the application of a cestui que trust, to enable the trustee to execute the trust, and to compel him to do so, stands upon the same ground. In both cases the trustee must be a party to the suit, either as plaintiff or defendant, in order that he may be bound by the decree, and that the cestui que trust may thereby have the full benefit of it.”

The objection made by the demurrer that certain beneficiaries of the trust, some of whom are shown by the bill to be residents of the state of California, are not made parties, does not deprive complainants of the right to maintain this action. The rule applicable to this question is clearly stated by the supreme court in Hotel Co. v. Wade, 97 U. S. 20, as follows:

"Holders of such securities, otherwise entitled to sue in the circuit court to foreclose the mortgage or trust deed, are not compelled to join as respondents other holders of similar securities, if resident in other states, even if they refuse to unite as complainants, as the effect would be to oust the jurisdiction of the court. Cases of the kind frequently arise, and the rule is that such a party, if he refuses to unite with the complainant, may be omitted as a respondent, unless it appears that his rights would be prejudicially affected by the decree. But it is suggested that the proper parties for a decree are not before the court, as the bill of complaint shows that there are other holders of the securities besides the complainants. It is true, beyond doubt, that all persons materially interested in the fund to be distributed should be made parties to the litigation; but this rule, like all general rules, will yield whenever it becomes necessary that it should be modified in order to accomplish the ends of justice. Authorities everywhere agree that exceptions exist to the general rule; and this court decided that the general rule will yield if the court is able to proceed to a decree, and do justice to the parties before the court, without injury to others not made parties, who are equally interested in the litigation. Payne v. Hook, 7 Wall. 425."

Numerous authorities might be cited to the same effect.

In the consideration given to this case I have confined myself to the questions relating to the real estate only. If upon the trial of the case it should, from any cause, appear that the personal property should be more definitely described, leave to amend in that particular will, of course, be granted. The demurrer is overruled.

HINCHMAN V. KELLEY et al.

(Circuit Court of Appeals, Ninth Circuit.

January 16, 1893.)

No. 61.

1. EQUITY-LACHES—

8—WHAT CONSTITUTES. An assignee of one claiming to be cestui que trust of the vendee named in an executory contract to convey land brought suit to establish a trust in such land 19 years after the vendor's death, and 6 years after the death of the vendee, the alleged trustee,-a period exceeding the statutory period of limitation. There was no written evidence of the trust. It did not appear that its enforcement had been requested in the lifetime of either party to the contract, or that the trust was ever admitted by the vendee's executors, and no explanation of the delay was made. Held,' that there was such laches as would justify a court of equity in refusing its aid. 49

Fed. Rep. 492, affirmed. 2. SAME-DEMURRER.

When laches affirmatively appears on the face of a bill, advantage may be taken thereof by demurrer.

Appeal from the Circuit Court of the United States for the Western Division of the District of Washington.

In Equity. Bill by Walter Hinchman against George 0. Kelley and Andrew C. Smith, executors and trustees under the last will and testament of Edward S. Smith, deceased, and the North Olympia Land Company, to establish a trust in land. The bill was dismissed on demurrer. 49 Fed. Rep. 492. Complainant appeals. Affirmed.

C. S. Fogg, (W. H. Doolittle, on the brief,) for appellant.

Galusha Parsons and E. T. Dunning, (Parsons & Corell and John O. Stallcup, on the brief,) for appellees.

Before MCKENNA, Circuit Judge, and HAWLEY and MORROW, . District Judges.

HAWLEY, District Judge. This appeal is taken from an order of the circuit court in the district of Washington sustaining a demurrer and dismissing the bill of complaint. Hinchman v. Kelley, 49 Fed. Rep. 492.

The bill, in substance, alleges that in February, 1872, one Ira B. Thomas held the legal title to certain land, described in the bill, and was apparently the owner thereof; that in fact the land was then owned by Philo Osgood, and the legal title was vested in Thomas in secret trust for Osgood; that the Lake Superior & Puget Sound Company, a corporation, through its agent, Edward S. Smith, in good faith, and without notice of the said trust, contracted for and

purchased of Thomas and of his wife, Sarah L. Thomas, said land, for the sum of $3,600, and the said Thomas and his wife then and there executed and delivered to the Lake Superior & Puget Sound Com. pany, by and through its agent, Smith, an agreement to sell and convey to Smith the said land, which agreement was duly recorded; that this money was advanced to Smith by said corporation, and that it was the real and beneficial party in interest in making said purchase; that on the 9th of October, 1872, the said Ira B. Thomas died intestate, leaving surviving him his wife, Sarah L. Thomas, and ope son; that the wife was appointed administratrix of his estate, and the same has been fully settled, and the administratrix discharged; that proceedings were had in the superior court of New York, wherein Philo Osgood was plaintiff and Sarah L. Thomas and her son were defendants, and resulted in a decree declaring that Ira B. Thomas held said land and the legal title thereto in trust for Philo Osgood; that, in pursuance of said decree, said Sarah L. Thomas and her son executed and delivered to said Osgood a quitclaim deed conveying said land to him, which deed was recorded in Thurston county, Wash., where said land is situated; that thereafter the said Osgood and his wife executed and delivered a quitclaim deed of said land' to one Philo Remington; that by divers quitclaim deeds the land was conveyed to several parties, and on the 1st of November, 1889, to the North Olympia Land Company, a corporation, one of the defendants; that all of said deeds were duly recorded; that the said Edward S. Smith died December 31, 1885, without having conveyed said land or assigned the said agreement to the Lake Superior & Puget Sound Company, but that by virtue of the trust before mentioned he delivered said contract to it; that said Smith died testate, leaving his property to his executors and trustees, parties defendant herein; that the said Smith at all times “admitted that said money was furnished by said company, and used by him as aforesaid, and that he held said contract and interest in said land in trust for said company;" that on the 3d of January, 1891, the Lake Superior & Puget Sound Company conveyed said land to the Whidby Land & Development Company, a corporation and assigned the agreement before mentioned to it, and on the 20th of November, 1891, the Whidby Land & Development Company sold and conveyed the land, and assigned the agreement to complainant, Hinchman; that Osgood and all the parties who procured the quitclaim deeds "had full, complete, and actual notice and knowledge of all the matters and things in this complaint set out;" that complainant's grantor demanded of the executors and trustees of said Smith that they execute and deliver to it a deed of conveyance of said land, and assign to it the agreement before mentioned, so as to vest in it the title and ownership to said land, which they refused to do; that the North Olympia Land Company claims to have some title to said land, and thereby clouds and slanders complainant's right, title, and interest in said land; that said land is vacant and unimproved, and is not in the actual possession of any one. Complainant prays that said Ira B. Thomas be decreed to have held said land in trust, with power of sale, for Philo Osgood; that the Lake Superior & Puget Sound Company be decreed to have furnished the money to said Edward S. Smith which he paid to said Ira B. Thomas for said contract and land, and that said Smith, in procuring said contract and land, acted as the agent and trustee of said company; that said trust be declared, and that complainant be decreed to be the absolute owner of the land, and that his title thereto be established and quieted; that defendants, and each of them, be restrained and forever enjoined from setting up or claiming any right, title, or interest therein; "and for such other, further, and additional relief as may be just and equitable."

Can this action be maintained for the enforcement of the trust? Is the right of action barred by lapse of time? Was the grantor of appellant, the Lake Superior & Puget Sound Company, guilty of such laches as to deprive it of the right to maintain this action? Can laches or lapse of time be pleaded in bar to an action for the enforcement of a trust of the character set out in the bill? There is no averment in the bill that the cestui que trust ever requested the enforcement of the trust during the life of Thomas, or during the life of Smith, its alleged trustee. No explanation is given as to why the suit was not brought in their lifetime, nor any reason given why the commencement of the action was delayed for such a long period of time after their death,—19 years after the death of Thomas, and 6 years after the death of Smith. There is no averment that the executors of Smith have ever admitted the trust. No written contract is alleged to be in existence as evidence of the trust. The assignment of the trust was not executed by the Lake Superior & Puget Sound Company until nearly six years after the death of its alleged trustee, and long after the statutory period of limitation, under the law of Washington, had fully run. Courts of equity have always refused to give any aid to stale demands when the parties seeking relief have slept upon their rights, and acquiesced for a long period of time, and have repeatedly declared that nothing can call a court of equity into activity but conscience, good faith, and reasonable diligence. Laches and unreasonable neglect are always discountenanced. This defense is peculiar to courts of equity, and is founded upon grounds of public policy, and is often based upon the mere lapse of time, and the staleness of the claim, in cases where no statute of limitations directly governs the case; the courts acting sometimes by analogy of the law of limitations, and some times upon their own inherent doctrine of discouraging antiquated demands by refusing to interfere where there has been gross laches in prosecuting alleged rights. This general rule is admitted. Its application to the facts of this case is, however, denied. Every case must, of course, depend upon its own peculiar facts. While it is true that one ground most frequently mentioned for the enforcement of the general rule, to wit, the possession of the party against whom the demand is made, and long and unreasonable acquiescence in the assertion of adverse rights, does not exist in this case, yet there are other grounds that are directly applicable to the facts of this case that have been recognized as equally controlling in favor of the rule. One of the particular reasons which have induced the courts to

v.54F.no.145

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