
    Margaret H. Paschall and Husband v. Gottlieb Hinderer.
    In 1830, H. resided in Germany, with his family, consisting of a wife and three minor children, by her former husband. Intending to remove, with his family, to the United States, he obtained permission of the guardian of the children, and%f the proper court, to take with him these children and a sum of money in the guardian’s hands, derived from their father’s estate, on the express condition that, on his arrival here, he would invest this money in land in their names. On his arrival here, he purchased land, paid for it in part out of this money, and in part out of his own, moved on it, but took the title in his own name, and thereafter occupied it as a home and as a means of support for the family, until the children arrived of age and afterward. Held:
    
    1. That, by taking the whole legal title in his own name, H. committed a breach of trust; and, to the extent that the purchase-money was paid out of the money belonging to the children, he holds the title in trust for them.
    2. That the continued possession and use of said land as a home, and for the support of the family during the minority of the children, was not adverse to the rights and equities of the children, and neither the lapse of time nor the statute of limitations would operate against them during such minority.
    3. The trust which resulted to the children was one not cognizable at law, but was peculiarly and exclusively within the jurisdiction of a court of equity, against which, while it subsisted, mere lapse of time was no bar.
    4. The continued possession of the property as a home, after the children came of age, by H., without any denial or disclaimer of the children’s rights in it, and without claim to own and hold adversely to them for a less period than twenty-one years, constituted no bar to a suit to compel an execution of the trust, nor will the lapse of a less period than would bar an action at law to recover the title or possession of land, of itself, raise the presumption that the trust had been discharged or ex* tinguished.
    6. What constitutes a stale equity depends on the facts and circumstances of each case, and not on lapse of time alone.
    Error to the District Court of Franklin county.
    The action below was brought by George F. Wheeler and Margaret H. Dryer, to declare a trust in their favor in certain lands in Franklin county, the legal title to which was vested in the defendant, Gottlieb Hinderer.
    While pending, it was dismissed as to George F. Wheeler. Margaret having married, her husband, Anthony Paschall, became a co-plaintiff with her.
    Upon appeal to the district court the case was tried, and that court, upon the issues of fact, found in favor of the plaintiff; but that the lapse of time, and the staleness of her equity, prevented that court from granting the relief demanded.
    The plaintiff' was born January 21, 1829, in Wurtemburgh, Germany. She was one of three infant heirs of John George Wheeler, who died in that country when she was but an infant, and in 1829 a guardian was appointed for these minor children, into whose hands, as such guardian, there came 854 florins, = to $341.60.
    In 1830, their mother married the defendant.
    In July, 1831, he and his wife, desiring to emigrate to the United States, and bring with them these children and the money in the hands of the guardian, applied to the proper court for leave to do so, which was granted on the condition, to which he assented, that he would, on arrival here, invest the money in land in their names.
    On arrival in Columbus, in 1832, he purchased the land now in controversy, and paid therefor $150 of these trust funds and $100 of his own means, and moved on the land and ever since occupied the same as a home for himself, wife, and these children. On the 23d of July, 1834, having then paid in full, he took the title in his own name.
    
      The petition charges, that to the extent that these trust funds paid for this land, the defendant holds the title in trust. This would give the plaintiff one-fifth.
    The answer interposes three defenses:
    1. That all the money so received was expended in moving to the United States, and none of it was used in the purchase of the land.
    2. That more than fifteen years had elapsed since the plaintiff became of age, and her claim is therefore barred by the statute of limitations.
    8. That if he is liable to account for these funds, he is entitled to a compensation for the maintenance of plaintiff' during her minority, which he asks to have set off against her share of such funds.
    It appears that the plaintiff was born January 21, 1829, and, until her marriage in 1851, made her home with her mother and stepfather and the other children, and that this action was brought December 17, 1867, less than twenty-one years after her majority.
    
      L. J. Critchfield and Francis Collins, for plaintiff in error:
    I. The district court erred in holding that the plaintiff' was excluded from relief by lapse of time and staleness of equity.
    This was not an action of ejectment, but an action to declare a trust, and enforce the conveyance of lands by the trustee to the cestui que trust.
    The limitation act in force when the cause of action accrued was the act of 1831. Swan’s Stat. of 1841, p. 553, secs. 1, 2.
    The action brought by the plaintiff not being an action of ejectment, but “another action for the recovery of the title” of land, and the plaintiff having been, when the action accrued, under the disability of infancy, she had twenty-one years from the time she became of age within which to bring the action.
    She became of age (18) January 21, 1847. She could bring her action within twenty-one years, or any time before January 21, 1868. She brought her action on December 17, 1867.
    If the plaintiff’s action be governed by the code limitation of actions, she had twenty-one years within which to bring her action after she became of age, or until January 21,1868. Code, sec. 19.
    And was the trust set up in the plaintiff’s petition “ a continuing and subsisting trust,” within the meaning of section 6 of the code ? If so, and if the action is not governed by the act of 1831, then there is no limitation act applicable to the plaintiff’s cause of action.
    II. The plaintiff’s case was cognizable in equity only.. In such cases the chancellor acts not in obedience to the statute of limitations, but only in analogy to it. Longworth v. Hunt, 11 Ohio St. 201.
    The relation of trustee and cestui que trust existed between the defendant and the plaintiff in the present case. "We are aware of the rule, as laid down in Williams v. First Presbyterian Society, etc., 1 Ohio St. 478.
    That was a case in which the complainant’s ancestor, who was under no disability, suffered twenty-six years to elapse in his lifetime, and without, in any way, asserting his rights; the delay was without excuse.
    Again, there is a difference between enforcing a stale equity against a purchaser, and enforcing a trust under the circumstances of the present case against the original trustee.
    The plaintiff should have been granted relief, even under the rules stated in 1 Ohio St., supra.
    
    It does not appear that the defendant ever expressly disclaimed the trust. The only acts from which a disclaimer can be implied are, that he took the title in his own name, and that he occupied and controlled the land. But even those facts are not sufficient facts from which a disclaimer of the trust must be necessarily implied. When the defendant took the deed in his own name, the child, Margaret, was only five years and a half old; was a member of his family, and so continued until within a year of her majority.
    
      In addition to that, he really recognized the trust, when it was mentioned to him from time to time, as a reason why he should do something for these children in regard to it, and when he promised to make them equal with his own children. He did this because he was aware of the fact that they had an interest in the land, and in response to the fact, when reminded of the children’s rights. Instead of disclaiming the trust, he, in effect, thus acknowledged it.
    Moreover, he acknowledged it by his frequent complaints that he was paying taxes on other people’s land.
    These acknowledgments and complaints have extended up to within six or seven years of the time the plaintiff’s action was brought.
    The lapse of time that could injure the plaintiff’s claim, can not date back of January 21, 1847 — the date of her majority. It ought not to date back of the acknowledgments and complaints that recognized the plaintiff’s rights in the land.
    Again, was not the delay in bringing the action to enforce the trust attended with such circumstances as ought to excuse it in equity.
    The plaintiff was a member of the defendant’s family— he was to her in loco parentis; and in the absence of an express disclaimer, on his part, of her rights in the land, she might well suppose that he would do justice by her.
    Erom time to time he caused it to be understood that in view of the plaintiff’s interest in the land, he would make her equal with his own children.
    “ It is always to be considered that it is a painful thing to take such proceedings as the present. They necessarily have a tendency to lessen affection between relatives, and delay ought not so seriously to prejudice the rights of the parties as in the case of strangers.” Laver v. Fielder, 9 Jur. N. S. 190.
    And in 2 Story’s Equity, sec. 1520, referring to the case cited, it is said: “ And delay in instituting proceedings where the parties are members of the same family is not so strictly regarded as -where they are strangers to each other.”
    Add to this the fact that the defendant was a man of violent temper, and disposed to inflict personal violence and abuse upon the plaintiff’s mother, and that she actually had to leave on that ground, and has obtained a separate maintenance by decree of court, and it is not wonderful, but reasonable, that the plaintiff was afraid to enforce her rights by judicial proceedings, and did not do so until her mother had left the defendant to seek a separate support.
    No change of circumstances is shown or exists that makes it inequitable to grant the relief sought; and the equity does not depend upon the results of an account which, from lapse of time, can not be taken. 8 Ohio, 62; 13 Ohio, 552.
    Looking at all these facts, and at the solemn obligations the defendant entered into with the guardian of the children in Germany, before the court there, that if permitted to take these children and their money to the United States, he would invest it in lands in their name and for their benefit; and at the fact that he used more than half of their money before he bought the land at all, and then, in violation of his sacred duty and promises, invested only a part of the money, and that in his own name, we submit that a court of conscience should allow the plaintiff relief, and that the district court erred in refusing to do so. As said by Lord Cottenham (Att’y Gen. v. Fishmonger’s Co., 5 Myl. & Cr. 16, 17): “ If there be no doubt as to the origin and existence of a trust, the principles of justice and the interests of mankind require that the lapse of time should not enable those who are mere trustees to appropriate to themselves that which is the property of others,” etc. Cited in note to section 1520 of 2 Story’s Eq. 775.
    
      Henry C. Noble and Otto Dresel, for defendant in error :
    The first point made by the counsel for plaintiff is, that this case does not fall within the letter of the second section of the statute of limitations of 1831, limiting the time to ten years after disability removed. The first section says that actions of ejectment, or any other action for,the recovery of title or possession of lands, etc., must be commenced within twenty-one years after the cause of action accrued. The second section saves the rights of infants, etc., in the following language:
    “ That if any person,* entitled to have or maintain any action of ejectment for the recovery of the title or possession of any lands, etc., be, at the time his right or title first descended or accrued, within the age of twenty-one years, etc., every such person may, after the expiration of twenty-one years from the time his right or title first descended or accrued, bring such action withiu ten years after such disability removed, and at no time thereafter.”
    It is true the second section only mentions “ ejectment,” and does not immediately add “ or other action,” as does the first section; but we claim it means the same thing, because the second section says, “ any action of ejectment for the recovery of the title or possession of any lands,” etc. What is an “ejectment for the recovery of title?” It is not the ordinary “ejectment,” for that is always and only to recover possession. The plaintiff in ejectment, at the time the act under consideration was passed, could only recover possession when he had the legal title. His suit was solely for possession.
    Nor can it be any other action at law, for there is no law action “for the recovery of the title.” The legislature must, therefore, have meant something by the words “ ejectment for the recovery of the title.” Looking back to the first section we see that what is there called “ any other action for the recovery of the title ” is embraced in the second section in the simple term “ ejectment for the recovery of the title.” If so, then the case before the court is as well described by the term “ ejectment for the recovery of the title,” as it is by the term “ any other action for the recovery of the title,” and the letter of the law, as interpreted by the scope of the first section, is broad enough to embrace this case.
    
      The use of the term “ any other action,” used in the latter part of section two, clearly refers to all the other actions except those for the recovery of the “ title or possession of any lands,,” etc.
    This statute has received a much more liberal interpretation — to carry out its evident purpose — than we thus ask, in the case of Slater v. Cave, 3 Ohio St. 80.
    If we are correct, then this case falls within the very letter and meaning of the statute of 1831, and this court, as a court of equity, is bound by it in an action like the present “ for the recovery of the title ” to this land, as a court of law would be bound by it, had an action of ejectment been brought for the possession only of the same land. If this is so, then it is not necessary to decide whether courts of chancery follow the statute of limitation by analogy, or by compulsion, or by courtesy.
    II. The code provides that title 2 shall not apply to actions already commenced, or to cases where the right of action has already accrued, but the statutes now in force shall be applicable to such cases, according to the subject of the action, and without regard to the form. Counsel argue that the very law (the code) that makes this saving, unconditionally repealed the statute of 1881, and therefore this saving fell eo instanti the code passed, and thus the savi ng was lost.
    It seems to us that if counsel had borne in mind that t-he order of the provisions of a statute are not material, and had read section 6 after section 7, they would not have made so fine a point. The statute of 1831, repealed by section 7, is subject to the saving clause of section 6. That is all there is of it. The code, however, did not take effect for some months after it was passed, so that the law. in force when it was passed, is technically correct.
    But we have found in section 6, that this saving clause extends the application of the statute of 1831 to cases in equity (if that was not the effect of the words of the statute before, as we above argue). Section 6, it will be observed, says that the laws in force “ shall be applicable to such cases ” (where the right of action has already accrued) “ according to the subject of the action and without regard to the form.” As one of the objects of the code was to abolish “the distinction between actions at law and suits in equity,” is it not clearly the purpose of this language to make the existing statutes of limitation applicable ex vi termini to suits in equity ? Is not the statute of 1831, as thus extended, directly applicable to this action, which is to recover the title and possession of the real estate in controversy? We think this is undoubtedly the meaning of this saving clause, and that this court is bound to apply the limitation of the act of 1831 to this case. So doing, the plaintiff was fully barred of her action moi’e than nine years before she commenced this suit.
    As to what is a subsisting trust under a similar statute to that under consideration, see Beckford v. Wade, 17 Ves. 88 Angell on Lim., secs. 468, 471; Perry on Trusts, sec. 865.
    As to the point made by plaintiff’s counsel, that this court acts in this ease, not in obedience to the statutes of limitation, but only in analogy to them, we refer to Larrowe v. Beam, 10 Ohio, 498; Smith v. Clay, 3 Br. C. C. 640; Elmendorf v. Taylor, 10 Wheat. 152; Gibler v. Trimble, 14 Ohio, 323.
    We ask, therefore, that the court affirm the judgment of the district and common pleas courts—
    1. Because the action is within the express words of the act of 1831.
    2. Because it is within its terms as enlarged by section 6 of the code.
    3. Because the demand is a stale demand and no circumstances of equity relieve it.
   Johnson, J.

Upon the issues of fact, the court found in favor of plaintiff, and denied her relief because of the lapse of time and staleness of her equity.

The facts thus found clearly establish an equity in the plaintiff to one-fifth of these lands, in 1834, and the question is, whether, by her laches, that equity has become stale.

The breach of trust did not consist in using these funds in making the purchase, for that the defendant had bound himself to do, nor in moving on the land and using it subsequently as a home, for that was manifestly beneficial to the children, but in wrongfully taking the whole title in his own name.

A trust resulted to the children in this title, to the extent the trust funds paid for the land.

And we may add that it is a trust which falls peculiarly within the province of a court of equity, not only because such trusts are exclusively of equity cognizance, but especially for the reason that the chancellor is the special guardian of infants, and watches over the administration of their estates with particular care.

As this cause of action arose prior to the civil code, the limitation of actions therein prescribed has no application.

¥e must inquire, therefore, what were the rules applicable to such cases prior to the code, in a court of equity.

The statute of limitations of 1831 (Swan Stat. 1841, p.. 553) did not in terms apply to suits in equity, but only to-actions at law.

Only so far as courts of equity adopted and followed the limitations fixed at law for analogous actions, can we look, to this act, or apply its provisions in an equitable action.

This subject has been ably considered, and was well settled in numerous cases, prior to the code. Kane v. Bloodgood, 7 Johns. Ch. 90; Hoveden v. Lord Annesly, 2 Sch. & Lefr. 607; Tuttle v. Wilson, 10 Ohio, 24; Horton v. Horner, 14 Ohio, 437; Piatt’s Heirs v. Vattier, 9 Pet. 405; 2 Story Eq.; sec. 1521; Angell on Lim., chap. 35.

In all cases where there was a concurrent jurisdiction of the courts of law and equity for breaches of trust, the rule was well settled that the equitable action was barred, in the same length of time as the action at law.

Where it would, however, be in furtherance of manifest injustice, equity would not, by mere analogy, allow the bar to prevail.

As was said in Bond v. Hopkins, 1 Sch. & Lefr. 430-435, by Lord Redesdale: “ The question is not, whether it shall operate in a case provided for by positive enactment of the statute, but whether it shall operate in a case not provided for by the words of the act, and to which the act can apply only so far as it governs decisions in courts of equity — that is, whether it shall prevent a court of equity doing justice according to good conscience, where the equitable title is not barred by the lapse of time, although the legal title is so barred.” 2 Story Eq. Jurisd., sec. 1521, note and cases; Gratz v. Prevost, 6 Wheat. 481.

The leading case in this country is that of Kane v. Bloodgood, 7 Johns. Ch. 90, where all the authorities are ably reviewed. The conclusions there reached were generally ¿accepted as the true solution of the vexed question.

The law, as deduced from an examination of the cases, 7may be thus stated:

That the statute of limitations did not apply in courts -of equity to technical or direct trusts, except in either of ¡■the’following classes of cases :

First. When there was also a remedy at law to which a limitation was fixed. In such case the equitable action to -enforce the trust has a like limit.

In other words, the statute of limitations applies to those ■trusts which permit of remedy for the breach either at law ‘Or in equity; that is, where there is a concurrent jurisdiction.

Second. In cases of trusts, where there is an open denial • or repudiation of the trust brought home to the cestui que drustent, which requires him to act, and the time afterward elapsed amounts at law to a bar.

Third. When circumstances exist which, with the lapse • of time, raises the presumption that the trust has been dis-charged or extinguished. Phillips v. The State, 5 Ohio St. 122.

.Length of time is no bar to a trust clearly established; and where fraud is imputed and proved, length of time ought not to exclude l’elief; but as time necessarily obscures all human evidence, and deprives the parties of the means of ascertaining the nature of the original transaction, it operates by way of presumption in favor of innocence and against imputation of fraud.

And it has been held that the lapse of forty years, and the death of all the original parties, is sufficient to raise the presumption that the trust is extinguished. Gratz v. Prevost, 6 Wheat. 481.

To the first class belong all cases where there was a concurrent jurisdiction both at law and in equity.

In such cases equity by analogy followed the law. Kane v. Bloodgood, 7 Johns. Ch. 90; Angell on Lim. 35, and cases.

In the second class the rule is thus stated in Williams v. First Presbyterian Church, 1 Ohio St. 478, where it is said: “Although it is true, as a general rule, that, as between trustee and cestui que trust, lapse of time is no bar, yet it is equally true that where the former, with the knowledge of the latter, disclaims the trust, either expressly or by acts that necessarily imply a disclaimer, and an unbroken possession follows in the trustee, or those claiming under him, for a period equal to that prescribed in the act of limitation to constitute a bar, such lapse of time, under such circumstances, may be relied upon as a defense.”

To neither of these classes does the case at bar belong. A court of equity has exclusive cognizance of such action, and there is no pretense that there has been such a disclaimer.

This is not a trust when its breach authorizes an action at law. After the purchase and possession, both of which acts were consistent with the trust the defendant had undertaken, he committed such a breach by taking the conveyance in his own name. The remedy for this was exclusively in equity.

Neither was there ever any disavowal or repudiation of the trust. His answer admits a trust in the money, and the court finds that it existed in the land.

He nowhere claims that his possession was openly and avowedly in repudiation of his trust relation to the property. Until he does so, the occupancy will be presumed to. be in fulfillment of the trust, and not in derogation of it. Such occupancy was consistent with that relation, and until disavowed by him, the statute would not begin to run.

In case of such disavowal, and future possession for twenty-one years under a claim of right, the equity would, as a general rule, perhaps be barred.

During the minority of these children the land was their home as well as his, used for their shelter and support.

His holding was that of a co-tenant, and head of the family for the common benefit of all its members.

The evidence does not warrant the assumption that he ever, during their minority or since, claimed to hold adversely to them.

But if we should regard his possession after this plaintiff became of age as adverse, which we do not think is authorized by the evidence, and should by analogy adopt the length of time as prescribed for real actions by the act of 1831, this claim would not have been barred, as the adverse possession since majority was less than twenty-one years before the action was commenced. Gibler v. Trimble, 14 Ohio, 343; Bowman’s Devisees v. Wather, 2 McLean, 376; Angell on Lim., chap. 33; Piatt v. Vattier, 9 Pet. 405.

The third class of trusts where lapse of time applies in courts of equity, is where the circumstances with the length of time creates a presumption that the trust has been discharged or extinguished.

What constitutes a stale equity is a vexed question hardly susceptible of an accurate definition. Length of time alone is not a test of staleness.

In Gibler v. Trimble, 14 Ohio, 323, the court say, at the end of the decision, on page 343 : “ Stale equities will not be enforced; when a party, having an equity, neglects to enforce it, for a period which would constitute a bar at law, under the statute of limitations — in analogy to the statute —it will also be barred in equity.”

In Larrowe v. Beam, 10 Ohio, 498, on page 503, Judge Grimke says : “ If the party be guilty of laches in prosecuting his title, as would bar him if his title were solely at law, he shall be barred in equity.”

In Chalmondeley v. Clinton, 2 Jacob & Walker, it is said: “At all times courts of equity have, upon general principles of their own, even when there was no suitable bar, refused relief to stale demands, where the party slept on his rights and acquiesced for a great length of time.”

The rule is well stated in Smith v. Clay, 3 Brown Ch. 640: “A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights or acquiesced for a great length of time.

“ Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. ‘ Where these are wanting, the court is passive and does nothing ; laches and neglect are always discountenanced.’ ” Kane v. Bloodgood, 7 Johns. Ch. 93; Piatt v. Vattier, 9 Peters, 405, 415; Beckford v. Wade, 17 Vesey, 86; Barney v. Ridgard, 1 Cox Cas. 145; De Conche v. Savatier, 3 Johns. Ch. 190; Prevost v. Gratz, 6 Wheat. 481; Hughes v. Edwards, 9 Ib. 489; Higginbotham v. Burnett, 5 Johns. Ch. 184.

If we apply these principles to the circumstances of this case, together with the lapse of time, are clearly of the opinion that a court of equity ought not to presume that this trust has been discharged or abandoned.

During all the years of her minority the defendant stood in loco parentis to the plaintiff. He had been the husband of her mother since she was but a year old. They lived as one family. She was raised without education and subject to hard manual labor out of doors as well as in. He was harsh and rigorous in his treatment of his family. His relations with her mother culminated in a judicial separation by reason of his violence to her.

She says:

“ One reason why I did not demand my share of the land sooner was that I was afraid Hinderer would be violent to my mother and abuse her about it. He was abusive to her, and very violent at times. I did not commence my suit until after mother separated from Hinderer on account of his abuse of her. Another reason I did not demand my share of the land long ago was that Hinderer often promised to make us three children equal in property with his own children. But after mother separated from him I knew there was no hope for his doing anything for me voluntarily, by will or otherwise. Soon after she left him my suit was commenced.
“ On cross-examination the witness further said that quarreling between her mother and Hinderer sometimes grew up about this property; a great deal of it was occasioned by mother wanting him to give us children our share of the land.”

In view of all the circumstances of this case, disclosed by the pleadings and evidence, such as the admitted equity in the money, the established trust in the land, the defendant’s repeated acknowledgment of the children’s claims, the parental relation he occupied, the good faith that that relation imposed, as well as other facts, we can not presume that this trust, so clearly established, was either abandoned or extinguished before this action was commenced.

After all hope of a peaceful-fulfillment of his duty had failed, but within twenty-one years after arriving at age} this action was commenced. .

The delay which did occur may readily be accounted for when we consider the plaintiff’s relation to. the defendant, her circumstances and surroundings, and her motives, as explained in her evidence.

“ It is always to be considered that it is a painful thing to take such proceedings as the present. They necessarily have a tendency to lessen affection between relatives, and delay ought not so seriously to prejudice the rights of the parties as in the case of strangers.” Laver v. Fielder, 9 Jur. N. S. 190.

And in 2 Story’s Eq., sec. 1520, referring to the case cited, it is said: “And delay in instituting proceedings where the parties are members of the same family is not so strictly regarded as where they are strangers to each other.”

In addition to the specific prayer for a conveyance, which we find should be granted, there is a general prayer for “ other and farther relief as to the court shall seem right in the premises.”

This embraces an account of rents and profits. In taking such account, we think, in view of all the circumstances in the case, it would be inequitable to go beyond the commencement of the suit.

During the plaintiffs minority it was her home — used for the benefit of all. The occupancy-since she left the premises without demand of account, until her mother left them, may fairly be presumed to have been by her consent. Perry on Trusts, sec. 230 ; Picket v. Logan, 14 Vesey, 215.

Again, the lapse of time has propably obscured reliable evidence on which to found such account-.

Judgment of the district court reversed, and cause remanded.

Ashburn, J., dissented.  