782
FEDERAT, REPORTER,
vol. 47.
fusalto recognize such tickets. It is a misnomer to call that which the Iron MOlmtaili is doing "a discrimination" against the 'plaintiff under the interstate commerce act, or any other careful use of that word. It is not the case of a road preferring unjustly, unduly, and unreasonably one of two other equally adequate carriers from a given point to a given point, but the case of a competitor or rival so conducting its business and using its t>owers of ownership as to divert travel from its rival to itself. This is the case as between the Little Rock & Memphis road and the Iron Mountain toad. As between the Little Rock and East Tennessee roads the case is that of preferring a road with through facilities to one with only local facilities,-a road that goes all the way to one going only part of the way; and the interstate commerce act does not forbid such a preference. Not having as long a track, the facilities offered by the plaintiff road for its through travel into Texas are not the same nor equal or equivalent to those offered by the Iron Mountain, and the discrimination it makes between the two cannot be, therefore, unjust, undue, or unreasonable in any proper sense, however disastrous to the plaintiff. Demurrer sustained, and the bill dismissed at the cost of the plaintiff. So ordered.
NADDO
v.
BARDON
et al, October 16, 1891.)
(Circuit Court, D. M!nnesota. 1. ACCOUNTING-LACHES-BREACH OF TRUST.
Plain tiff's attorney, to sell certain land in Minnesota and to pay taxes thereon, conveyed it in plaintiff's name to.a third person, and took a reconveyance thereof to himself, bought in an outstanding title arising from an execution sale, and allowed the land to be sold for taxes at various times, and bought in the tax-titles. Thereafter he conveyed the title thus acquired. All this he did with little or no attempt at concealment. Each transaction was r;ecorded, and, in most instances, promptly. During 20 years subsequent to the execution of the power of attorney, and 10 years after the last-named conveyance, plaintiff made no inqUiries about the land, paid no attention to it, and furnished no money for the payment of taxes or other expenses. It does not appear that the land was productive. Held, that plaintiff was of laches, and could not have an accounting from the attorney, or recover the land from his grantees.
2.
SAME-FEDERAL COURTS-STATE ST·ATUTES OF LIMITATION-TRUSTS.
S.
SAME-EXCUSE POR DELAy....:.ABSENCE FROM STATE-POVERTY.
4.
PLEADING-ALLEGING CONCLUSIONS.
It is not a sufficient averment of tile attorney's ability to pay taxes out of the proceeds of t1;1e land to allege, merely that the land was of great value, and the proceeds were ample, and more, to pay all taxes and expenses, but the facts should be alleged.
NADDO V. BARDON. 5. SAME.
783
An allegation that the land was sold under "a pretended judgment, * * * which was informal, irregular, and void," is. not. sufficient to raise any question of the validity of the ,
In Equity. Bill torecoyer land, enforce an implied trust, and for an accounting. On demurrer to bill. The following are the material.averments of the bill: (1) January I, 1863, complainant obtained patent from the government for the'S. W. :i of the N. El,l of section 5, township 49 N., range 14, towith other lands. Patent recorded January 26, 1863. Complainant, June 6, 1863, removed to Canada, leaving 'the property in charge of his nephew, Pierre Etu, ashis!agent, gave him a warranty deed of the property, intended as a power of attorneY, tha.t he might Illaliage the property, Rtating iIi the deed $100 as theconsidetation'price. 'rhis deed was rllcorded. J Illy 7, 1864, complainant retu'rned to St.' Louis county, Minn. Pierre Etu had then'removed to'Cauada. ; Hereconveyed to comphlinaht by a deed executed fri the l!'rench according to the laws of Canadai' 'not witnllssed or acknowledged, according to the laws of Minnesota. This deed wasrecol'ded October 2t 1867. . . (2) September, 1870, complainant desired to temove to Marquette, Mich. On the 24th of that month executed power of attorney to Richard G. Cobul'll; recorded May 4,1874. The right of substitution was contailledin the power of'attorney, Which is attached to the bill as Exhibit A. . '(3) Coburn, March 7, 18'74, executed a substitution of attorney to James Bah:lon;, which was 'recortied May 4, 1874.' Copy attached to bill as Exhibi'tB. J ... . . · . . . ', .. .(4)' Barden, contriving how to defraud complainant, while acting as his agent under the power of ,attorney, May 18, 1874,q,uitclaimed this property in the name of Naddo,by himself; as attorney in fact, to John Q. Hubbard, andO» the next day, the I4th M3:Y, 1874, H1Jbbard reconveyed the same property! to James'Bard'on indivitlually... The consideration price stated in eadrOf those deeds Was one dollar, which: was the only consideration which passed between them. Both of these deeds were quitclaims. The deed from N addo, by Bardon as attorney; to Hubbard Was recorded May 16, 1874, two'days 'aftt'rHubbard had rcconveyed to Bardon; but the deed from Hubbard to Bardon was retained by Bardon unrecorded for over a year, though 'he had itat the tiliie that the deed by him to Hubbard was recorded, and he 'Ohly recorded it upon the 4th of June, 1875. A copy of the deed by Naddo, per Bardon, asattDrney in fact, to Hubbard is attached to the bill as Exhibit 0, and a copy of the deed by Hubbard to Bardon attached to the bill ilS Exhibit D. (5) Bardon on May 14, 1875,procureda quitclaim deed of the property in questioh from Pierre Etll. represeriting to Etb that there was some defect in the conveyance which said Pierre Etu had 'made to Naddo July 7, 1864, in French, which should bert'ctified. On that representation Etu made a quitclaim deed to Bardon. After procuring the qUitclaim from Etu, Bardon recorded on June 4, 187-5, the quitclaim deed he got from Hubbard, and the one which'he got from Etu. (6) J .. D. Ensign brought attachment suit in the district court of St. Louis county against complainant,: and obtained a pretended judgment for a small amount', whjcll was infor'Irlld;: irregular, and void. A sale was made by tbe sheriff of Lhis propertyon said jUd/iment,to John C. Hunter, for the sum of $400; $190.53 being the claim of Ensign. The complainant never received the balance of the $400. Sheriff's c("rtilicate of purcllase WllS issued to Hunter and Philip S. Harris March 10,1l:173, which was l'ecorded. Hunter as-
of
784
FEDERAL REPORTER,
signed his claim to the Duluth Savings Bank, which assignment was recorded. Harris quitclaimed his interest to James Bardon for $40, July 15, 1875. June 18. 1876, the savings bank quitclaimed to Bardon for $10. Harris also quitclaimed to Bardon. 'fhese quitclaims were all recorded; thus canceling this pretended judgment. (8) Bardon, June 4. 1875, allowed this property to be sold. by the auditor of Bt. Louis county for back taxes of 1872. and Bardon bid in the tax in his own individual name, he taking a tax-deed to himself for the tax; his power of attornRy from the complainant standing uncanceled. (9) Bar{]on, whDe still acting as the agent of complainant, the power of attorney being uncanceled, allowed the said property to be sold in 1878 for the back taxes of 1874, and procured them to be bid off in the name of his sister, Mary Bardon. Bardon permitted the land to be sold for the back taxes of 1878. and bid the same off in his own name. (10) Mary Bardon qUitclaimed her tax-title to James Bardon September %, 1879. All of said conveyances pf tax;-tities were recorded. (11) 'fhe power of attorney by substitution to Bardon still continued upon the record uncanceled, and bas so contillUed until the prest'nt time. Nevertheless, Bardon, while being the agent of the complainant, fraudulently and wrongfnlly cuntrived to defraud the complainant, and took the deeds from Harris. the Duluth Savings Bank, Mary Bardon, and the tax-deeds referred to. and then assumed, without the knowledge of the complainant, to be the owner of the property in his individual right. The complainant has bt'en absent from St. Louis county since the giving of the power of attorney to Coburn, in Marquette county, Mich., and then in Canada., and has not until recently known of these frauq.ulent attempts on the part of Bardon. And complainant alleges that, since the of the power of attorney to Coburn. the property has been of large value, and the proceeds from the use of the same from the v8ryfirst were ample, :1I1d more than ample, to pay all taxes and expenses that could legally be brought against the land, and that the land has steadily increased in value since that time. 'fhat at the time of the giving of the power of attorney to Coburn the property was worth at least from $8,000 to $10.000. and it was worth that when Bardon conveyed the same, in tbe name of the complainant, to Hubbard for $1, and took a deed back to himself for the same amolJut. Complainant alleges, that all this time Bardon has held the title as. trustee for him, and that all the otltstanding claims againRt the property which he has procured in his own name he holds as trustee for complainant, and that Bardon has acquired no personal ble right or title to the property. That Bardon received and continues to hold the said lU11d in trust. That the nature of a trust relation between complain. ant and Bardon fully appeai's upon the records of the county where the land lies. 'fhat this power of attorney by substitution stands uncanceled or discharged. .'£hat Bardon had no power to sell the property in his own name. That the conveyance to Hubbard was fraudulent and void. That complainant has never disposed of. or authorized anyone to dispose of, his rights, except undeJ,' the conditions of the powers of attorney set forth in the bill. (12) Complainant is informed that Bardon assumed to sell in his own individual name the said property to Henry W. $age for $2,250, and deeded the same to him on February 4. 1880, which deed was recorded. Henry W. Sage and wife assumed to convey an undivided qnarter interest to Sophronia Dean and .Toel W. Glade. executors of the estate of .Warren H. Dean, and that Glade and Dean, as executors. conveyed an undivide(lone-qllarter interest in the land to the defendant W. Paine for $2,8UO.Bardon and wife, .vember 16, 1885, conveyed by quitclaim to Henry W. Sage for $2,500, and Henry Sage conveyed lin undivided three-quarters interest to :Frederick W.Paine for $7,500, and on June 19,1886, Paine platted the land into the
'V.
NADDO V. BARDON.
785
West Park division of Dqluth, which plat was recorded August 30, 1886. Then follow numerous conveyances to the various defendants in the bill, by quitclaims, special warranty, and warranty deeds,-conveyances of all forms. (i3) In paragraph 13, appearing upon page 42 of the bill, complainant alnot leges that for the last 10 or 12 years he has resided in Canada; that he until quite recently learned of the extent to which this property has been transferred; that for 10 years he has known that James Bardon and others claimed that he had forfeited his rights in the land, and that Bardon refused to account to him for his transactions; that since the learning of Bardon's fraudulent dealings, he has been poor, and unable to pay the expenses of litigation necessary to enforce his rights in the court, and has been unable to procure, until recently, the assistance to enforce his rights. (14) Complainant offers as to those who have purchased lots and made improvements upon lots in West Park division of Duluth, and who have purchased in good faith, and without actual notice of the rights of your orator, to allow such defendants, for the improvements they have made in good faith, the actual value of theiulprovements, or to ratify and confirm their title; or that he will accept from such defendants who have made improveml'nts upon portions purchased' by them the difference between the amount which they have paid for the property and its improvements and its present value, in settlement of his claim against such portions of the property; and offers to refund to the parties making such permanent improvements the value of the improvements, or to accept from such occupiers the difference in value bet-veen the property so actually occupied, and necessarily used in and about such industries, and the present value of said property so used and occupied. in cancellation of his Litle. Special reference is made to secLion 14 of the bill as to this offer. (15) Complainant alleges that he is informed that Bardon has become wealthy by misappropriation of his property; that he bas not accounted to bim for his doings as trustee; and prays that he be called upon to account. (16) In this paragraph of the bill comes the prayer for relief, namely, a decree that the land in question belongs to complainant, and that dpfendants account to the complainant; that James Bardon, Jacob R. Myers, Frederick W. Paine, and Henry Lardner set forth a true account of all their actions and doings in respect to the property, and for the use and occupation of the same; "and that the respective rights of your orator and the said defendants be fully ascertained, and that the defendants may be decreed to pay to your orator what, if anything, shall appear on such account to be due from each of the said defendants, severally or collectively," etc., and then a prayer for general relief. The defendants have demurred to the bill on the following grounds: (1) Because the bill is multifarious; (2) because the bill does not state such a case, nor contain any matters of equity entitling the complainant to any relief against the defendants. H. S. LeYI'd, (Clark & Pearl, of counsel,) for complainant. R. R. Briggs, (T. C. Ryan, of counsel,) for defendants Bardon and Day, Merritt & Ericksen. Walter Ayers, for other defendants. THOMAS, J., (after stating the facts.) The view I have taken of this case renders the consideration of any proposition advanced, except the laches and acquiescence of the complainant, unnecessary. In arriving at a conclusion, I have had the aid of an oral argument by able counsel.
v,47F.no.12-50 .
786
and have been furnished with fun ahd exhaustive briefs. Does this bill show upon its face that the has been guilty of such laches, and that he has so far acquiesccq.iri the disposition of the propqrty in question, a;; to warrant this court in withholding any relief? If so, tho objection to the bill may betaken by the demurrer. Maxwell v. Kennedy, 8 How. 222; Lansdale v. SJlbith, 106 U. S. 391, 1 Sup. Ct. Rep. 350; Speidel v. Henrici, 120 U. S. 387,7 Sup. Ct. Rep. 610. This action was commenced in May, 1891. From the year 1870 down to the time this bill was filed the complair;J.ant seems to have given no attelltion to the property. His attorney was authorized to pay taxes on the land, and to look after the same until it was sold, but it does not appear that his attorney was ftlrnished money with which to pay taxes, eJl: any expenses incident to the care alid protection of the property. I do not findaqyal1egations in tI:le.,bill from whicp it cap befti.irly or reasonably the or yielded any revenue whatever. True, there are general allega.tionsthat the land from the time of the making of the power· oLattorney to the filing of the bill was of great value, and that the proceeds from 'the' use of the same from the first were ample, and more, to pa)' all taxes arid expenses that might be legaJIy aga" s,t .the l,an,d, · rwents. are,' mer, conclusions. and not ffl,ct,s,pro,pC;\rly pleaded,' from whlCh any 1l1ference as to the ,proceeds of !:laid .land qan be· fairly dmwn. Onthe other hand, the fair inference, from all the allegations of the hill as to this land, is that said landwus'tmcultivated, unvrodnetive,'andin its natural state at the time of of the 'ofattorney, four acres; which It was s\?lp1 on eX(3cutionU\ the sprmg of 1873 for the of a thlJ,t,'in view of the allegations in the bill respe<;;tingthe he presumed to be valid . . After the year :of redemption had expired, the ;holders of the title to the land obtained through that judicial s'aIe soldtheil.i interests therein to defendant Bardon }orabout $60, and ill 1880, 10 years alter the execution of the J)9wer of attomey, Bardonsolq. the land to Sage for ,the expressed conIlfl1,deration of $2,250.. J;:Juring, alLthef3e years the cOUlplainalltdoes not appear to have fumished any mmley to pay taxes on the land, or made any concerning the land, or given any attention to it whatever. True, he had' appointed im attorney to sell the land, to pay taxes, and to protect the land from trespassers. He knew that he had left an oband that this land might, and, in the ordinary ligation behind course of things, probably would, be to the payment of snch obligation. I am str,ongly impressed with the idea, from the faets alleged, and the natural and reasonable inferences .deducible therefrom, that the complainant had ceased to take any interest in the land, or care what had or might become of it. His conduct; the entire want of attention, and the disregard of his interests in it, are inconsistent with any other 'theory. Prior to the sale to Sage in 1880, the records of the countv wherein the lands are situate contained full and fair statements of Ba;don's doings in the premises. ,From these records it then, at least, t1ppeared cleadythat Bardon had obtained the complete title in his own
787
name, so far as conveyances were concerned; that is, he had obtained deeds in his oWh name to: the land. He gave public notice to the complainant and to the world, by these records, that he claimed to be the real and sole owner of that land. The records 8how that h0 had for six years prior to the snle to Sage been acquiring, as opportunity offered, title to the land in his own name, without any attempt at concealment, except the neglect to record the deed from Hubbard to himself, from May, 1874, to June, 1875, ano, perhaps, allowing one sale of the taxes to be made to his sister, which, claim of the sister, however. he obtained in his own name, and put the deed upon the records. . \Vhatever may have been Bardon's secret intentions or motives, with this one exception, with reasonable promptness he spread upon the public records the evidences of his doings concerning the land in question. These records were open to inspection, and accessible to complainant. For a mere pittance he eould have· ascertained all the facts appearing upon these records, Wherever he might have been. Conclusive evidence of un<:Jualified repudiation of his trust by Bardon was then reasonably accessible to complainant. Bardon not only obtained the complete title in his own name, but, after doing so, in 1880, he sells and deeds all the land to .Mr. Sage, and that deed is spread upon the public records in the ordinary course of business. This lat'ld has been platted, divided and subdivided, and conveyed, in blocks and lots, to various parties, who are made defendants in this action, many of whom have made valuable improvements on the property. Complainant, admitting the long delay, attempts to excuse it, so as to bring his case within the equitable rule, requiring him to set forth in his bill what were the impediments to any earlier prosecution of his claim. In this regard be alleges: .. And your orator alleges that for about ten or twelve years last l1a8t he
has resided in Canada, and that the tram,ft'rs of the property of your orator, as preViously set forth, and as appear by the records of the register of deeds for said county, have been without the knowledge and consent of your orator, and your orator has not until quite recently learned of the extent to which such transfers have been made. And your orator further alleges that for about tell years he bas known that the said James Bardon and others claimed tllat he had lqst or for{eited hill rights to the said land, and that the said refused to account to him for his transactions with regard to the same,lmt your orator has, du.ring all said time since learnillg of such wrongful and fraud'1lent dealings on the part,of the said James Bardon. ,been poor, and unable to pay the expense of litigation necessary to enforce his rights ill the courts, and has been unable to procure, until recently, the· assistance necessl!<ry to e.nforce his rights."
Just:when he obtained, according to his own claim, full and complete knbwledgeof all the doings·of Bardon does not appear. The allegation that he orily'recently acquired such knowledge is too vague and uncertain to demand the consideration of this court. Case aj,Broderick's Wi(l,. 21 Wall. 519: " Absence from the statecannGt vail.:) Parties cannot thus, by their seclnsion from the means of information, claim exemption from the laws that control hnman affairs, and set up a right to open up all the transactions of the
788
past. The world must move on, and those who claim any interest in persons or things must be charged with knowledge of their status and condition, and of the vicissitudes to which they are subject. This is the foundation of all judicial proceedings in rem." Allegations of general ignorance of things, the knowledge of which is easily ascertainable, is insufficient to set into action the remedies in equity. McQuiddy v. Ware, 20 Wall. 14. Nor upon well-settled equitable rules can his plea of poverty and inability to pay the expenses of litigation necessary to enforce his rights avail him in this action. In DeEstrada v. Water Co., 46 Fed. Rep. 282, the court says: "The complainant is an ignorn.nt woman, unable to read or write in any language, and has heretofore been too poor to employ a counselor prosecute her rights. While the poverty of the complainant is muah to be regretted, it does not constitute any legal or eqUitable ground for granting her relief be denied to her if rich. The legal and equitable rights of parwhich ties to controversies before the courts must be administered l'egourdlt·ss alike of poverty and riches. Nor is the fact that complainant is ignorant and unable to read or write of itself sufficient to bring into action the aid of a court of equity in behalf of a claim and demand otherwise barred by lapse of time. Everyone not under legal disability must assert his or her rights within the time prescribed by the rules of law oreqliity. as the case may be. It is true that the statutes of limitations applicable to actions at law do not apply to suits in equity, but courts of eqUity are governed by the analogies of such statutes. " In view of the well-settled principles of equity jurisprudence to the contrary, I cannot hold that the alleged of complainant for his neglect to earlier prosecnte his claim add assert his right are sufficient. The contention of the counsel for the complainant is tha,tlapse of time is no bar to a subsisteqt trust in feal property. His argument is: "!tappears that James'-i3ardon became the agent of Pierre March 7,Hl74.under a powerof attorney previously given to Hichard G. Coburn, and by Coburn substitutedto Bardon. Bllrdon, on the i3th day of May, 1874, quitclaimpd the property in question to .John Q. Hubbard, and upon the next' day, the 14th day of May, Hubbard qultclailued the same to'James Bardon personally. Bardon, alsO. May 14, 1875, the next year, procured a quitdaim d'eed from Pierre Etu to himself, eVidently'to cover the defect in the record appearing from the failure of PiprreEtu in reconveying to Naddo July 7, 1864. in making a proper acknowledgment, and baving the papPI' duly witnessed, so as to entitle it to rpcord in Minnesota, and make it notice to all. Bardon also took quitclaini deed from Philip S. Harris, one from Duluth Savings Bank; and oneftomMilry Bardon of execution, purchases. and taxtitles on the property. All of these eonvej'ances he took to himself, while he beld the power of attorney fr,Om ;Pierre Naddq uncanceled, and without any notice to Naddo that he'ignol'ed:thirpower of attorney,and would surrender the same, and :refused to act under, it longer. It further appears that James Banjon, having thus pt-oC1Hedaconveyance 'of outstanding clouds 'upon the title of :N addo to bim,self,Fe,bruary 4, 18$0, as,,"umed to sell the IjRme to Henry Sage. This property, and give a warranty deed ,of conveyance was clearly a fraud ulJon Naddo, and void: as all of these outstanding conveyances to Bardon, received held of attorDey from Naddo, were taken in the law and in eqUity for the benefit of Naddo." ,
NADDO V.
78\)
His theory is that, during all this time, the relations of trustee and cestU'i que trust existed between the parties, and that whatever Bardon did was, in equity, in behalf of and for the complainant, and that he is now entitled to an accounting and to a decree removing the clouds from the property, and that he be declared the legal and actual owner of the property. Upon the conceded facts of this case, I am unable to give my full assent to the contention of the learned counsel for the complainant. It is true that the power of attorney remained uncanceled on the records, but Bardon caused to be spread upon these same records most emphatic, open, and distinct disavowals of the trnst. He not only took all deeds in his own name, but in 1880 he openly sold and conveyed the land to Sage in his own name. Complainant says that not until quite recently did he learn of the extent to which these trrll1sfers were made. He knew that they were being made, and that Bardon was dealing with the property in his own name; that he was asserting rights to that property inconsistent with his duties as trustee, and antagonistic to the interest of the complainant. He admits that for 10 years he had known that James Bardon and others claimed that he had lost or forfeited his rights to the land, and that the said Bardon refused to account to him for his transactions with regard to the same. In view of the facts that the records were open and accessible to the complainant; that these records contained the most indubitable evidence of the disavowal and repudiation of the trust on the part of Bardon; that the complainant had been advised for over 10 years of the facts which he admits, and above quoted, - I think I am bound to hold that not only Bardon repudiated and denied the trust more than 10 years before the commencement of this suit, but that such disavowal of the trust was clearly and unequivocally made known to complainant at least 10 years before this bill was filed. If he was not fully advised during all these years of the extent of Bardon's doings in the premises, and the full extent of the transfers, he had the ready means of ascertaining all these facts. They were easily and readily accessible, and the possession of such means of knowledge, in equity, is the same as knowledge itself. New Albany v. Burke, 11 Wall. 96-107; 2 Story, Eq. Jur. § 1521. The supreme court of the United States has recently spoken upon this question, and I quote at length from the opinion of Justice GRAY, speaking for the court in Speidel v. Heni'ici, 120 U. S. 386, 7 Sup. Ct. Rep. 610, as follows: "As a gl'neral rule. doubtless. length of time is no bar'to a trust clearly tablished, and exprpss trusts are not within the statute of limitations, because the possession of the trustee is presumed to be the possession of his que trust. Pre1:ost v. Gmtz, 6 Wheat. 4tH, 497; Lewis v. Hawkins, 23 Wall. 119,126; Railroad Co. v. DUTant, 95 U. S. 576. But tIlis rule iR, in accordance with the reason on which it is founded. and as has been clearly pointed ont by Chancellor Kent and Mr .·Justice subject to this qualification: that time begins to run against a trust as soon as it is openly disavowed by the trustee, insisting upon an ad verse rightand interest wb ich is clearly and unequivocall,}' made known to the cestui que trust; as when, for instance,
790
such transactions take place between the trustee and the cestui que tnf,St as would, in case of tenants in common, amonnt to an ouster of one of them by the other. Kane v. Bloodgood, 7 Johns. Ch. 90, 124; Robinson v. Hook, 4 :Mason, 139, '152j Baker v. Whiting, (i Sum. 475, 486j Olive?' v. Piatt, 3 How.333,411. This qualification has been often recognized in the opinions of this court; and distinctly affirmed by its latest judgment upon the subject. Willison v. Watkins, 3 Pet. 43,52; Boone v. Chiles, 10 Pet. 177, 223; Seymour v. Freer, !:I Wall. 202, 21!:1j Bacon v. Rives, 106 U. S. 99, 107, 1 Sup. Ct. Rep. 3; Phillippi v. Phillippe. 115 U. S. 151, 5 Sup. Ct. Hep. ll!:ll. '" '" * Independently of any statute of limitations. courts of eqUity uniformly decline to assist a perSOn who has slept upon his rights, and shows no excuse for laches in asserting them. · A court of equity,' says Lord CA:lfDEN, ·has always refused its aid to stale demands, where the party slept upon his rights, and acquiesced for a great length of tIme. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Wlwre these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court.' Smith v. Clay, 3 Brown, Cll. 640, note. This doctrine has been repeatedly recognized and acted on here. Piatt v. Vattier, 9 Pet. 405; McKnight v. Taylor, 1 How. 161; Bowman v. Wathen, Id. 189; Wagner v. Baird. 7 How. 234; Badger v.Badge?·, 2 Wall. 87; v. Beale, 17 Wall. 336; Ma1'sh v. Whitmore, 21 Wall. 178; Sulli'Van v. Railroad, 94 U. S. 806; Godden v. Kimmell, 99 U. S. 201. In Humev. Beale, the court, in dismissing, because of unexplained delay in suing, a bill by cestni que trust against a trustee under a deed, ebserved that it was not important to determine whether he WitS the trustee of a mere dry legal estate, or whether his duties and responsibilities extended further. 17 Wall. 351. See, also, Bright v. Ledgerton, 29 Beav. 60, and 2 De Gex, F. & J. 606." I am of the opinion that this action could not be maintained in the courts of this state, by reason of the fact that the claim set up in the bill 'is barred by the statute of limitations. St. Minn. 1878, c. 66, § 6, subd. 7; "Actions to enforce a trust or compel an accounting, where the trustee has neglected to discharge his trust, or has repudiated the trust relation, or had fully performed the same, must be brought within six years." The supreme court of the state of Minnesota in Bltrk v. As8ociation, 40 Minn. 506, 42 N. W. Rep. 479, have held that the statute covers implied trusts. I see no distinction in the statute, and am of the opinion that it applies to a trust of the nature set up in the bill, and for that reason this suit could not be maintained in the state courts. If I am correct in this, the title of defendants rests secure, under the laws of the state, in the state courts.. While the state cannot control the eq, uity jurisprudence of the United States courts, yet when these courts, justice in the same state, can see that justice will be subserved by following the rule adopted in the state courts,or by the legislature, they ought to, and generally will, follow the law and rules of the state courts. These courts, acting upon the broad principles of equity, follow the analogy of the law generally. Equity always discountenances laches, and holds that laches is presumable in case where it is positively declared at law. But, acting upon the special facts and circumstances of each it will sometimee grant relief where the law would not, and withhold relief where the law would aid. .
CLOUGH 'V. UNITED STATES.
791
Upon the fa.ct5 and allegations, and the natural and legitimate inferences deducible therefrom, upon clear principles of equity jurisprudence, as construed by the supreme court of the United States, I think the complainant must be deemed to have acquiesced in the transfers to the various defendants now h()lding the title, and to have slept upon his rights in respect thereto. He had full knowledge, or was bound to know, that this property was being transferred, disposed of, occupied, and improved from the time the land was conveyed to Sage, and during all that time he has expressed no disapproval, but by his actions he has acquiesced; and now he must be held to be precluded from obtaining relief in this court as against the defimdants holding the title, or any portion of the title to the land in question, upon the principles of, and in aualogy to, estoppel. As to the said Bardon, for the reasons heretofore given, and upon the special facts and Circumstances of the case. and the rapid dethis land is situate. I velopments going on in the progtess,ive city think the complainant be held to have been guilty of such laches as to induce this court to withhold relief. The conclusion is almost irresistible that the complainant might, and he perhaps would, have continued to sleep quietly and peacefully upon his supposed rights, had it not been for the quickening influences that have,within a comparatively materially appreciated the value of thi,s property, and brought it int9prpminence. " ' ' The. derrmrrers on the part of all the, defendants mustbe sustained, ,and dismiSSIng the bill, must be entered, and it is aycordingly ,so ordered.
,CLOUGH V· UNITED STATES. , (Circuit Court; W. D. Tenne/Jsee. October 21,1891.)
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UIlITEI) STAlES COMMISSIONERS-DoCKF'r FEES IN CRIMINAL CASES.
bill of 1886, (24 St. 274.) appropriating $50,000 for United States , commissioners' fees, with, a proviso that they should receive no docket fees, abolished such fees entirely for the future., U. S, v. Ewing, 11 Sup. Ct. Rep. 74-3. and U. S. v. McDermott, ld. 746, followed. . United States commissioners are entitled to fees of 20 cents per folio of 100 words for drawing complaints in criminal cases, and also to fees for tbe jurats, or certificates to the oaths of aftlants to such c()mplaints. U. S. v. Ewing, 11 Sup. ut. Rep. 743, and U. S. v. McDermott, ld. 746, followed. They 'are also entitled to fees for filing such complaints, for drafting bail-bonds for defendants, for draWing aftldavits of sureties to such bo,nds, their solvency and sufficiency, and for copies of process sent to the court in cases where the defendants were held to bail. U. S. v. Barber. 11 Sup. Ct. Rep. 751, followed. They are also entitled to fees for entering returns of warrants and other process, and for Issuing 'rnitlim1l8 writs. U. S. v.EWing, 11 Sup. Ct. Rep. 743, and U. S. '1'. Barber, ld. 751, followed. They are only entitled to 'a single fee of 25 cents for the acknowledgments of all the signers of bail.bonds. U. t:i. v. Ewing, 11 Sup. Ct. Rep. 743, and U. S.v. Barber, ld. 751, followed. FOR DRAWING COMPLAINTS.
"2. S..
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SA:'IIE-FEES FOR FILING COMPLAINTS-FoR DRAFTJlW BAIL-;BoNDS-AFFIDAVITS.
SAME'-FEES FOR ENTERING RETURNS ANI) MITTIMUS.
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SAME-i!'EES FOR ACKNOWLEDGMENTS.