Lammer v. Stoddard

Earl, J.

The finding of the trial court, affirmed by the general term, that Edward Lammer had paid to Mary Lammer the amount loaned to him by her, which was secured by his mortgage, was founded upon sufficient evidence, and concludes us. The loan was made forty-eight years before Edward’s death, and thirty-four years before Mrs. Lammer’s death, and during most of that time he possessed ample pecuniary ability to pay. She was not shown to possess much means, and presumably needed the means for the support of herself and infant children. She and Edward always resided near each other, and, during twenty years, he made a considerable allowance to his sister for the benefit of herself and mother, thus showing that he was not only disposed to be just, but liberal. The bond and mortgage were not in her possession at her death, were not then shown to be in existence, and were never, until shortly before the commencement of this action, by either of the plaintiffs, the youngest of whom at her death *214was forty-two years old. Under such circumstances, the non-production of the bond and mortgage furnishes very satisfactory and conclusive evidence of their payment. Bergen v. Urbahn, 83 N. Y. 49.

But the statute of limitations furnishes an equally conclusive defense to this action. If it be assumed that the trust fund was loaned to Edward Lammer with notice of the' trust, under such circumstances that the trust, within a proper time, could have been enforced against him or his estate, the lapse of time would still stand in plaintiff’s pathway. If this .were an action to recover the debt evidenced by the bond and mortgage, it is conceded that it would have been barred. But the fiction is to establish, and enforce a trust, and hence the claim is made that it. is not barred. It is undoubtedly generally true that,' as against a trustee of an actual, express, subsisting trust, the statute does not begin to run against the beneficiary until the trustee has openly, to the knowledge of the beneficiary, renounced, disclaimed, or repudiated the trust. But Edward Lammer was hot the actual trustee of this fund, and he never acknowledged a trust as to the money loaned him. He could, at most, have been declared a trustee éx maleficio, or by implication or construction of law; and in such a case the statute begins to run from the time the wrong was committed by which the party became chargeable as ' trustee by implication. Wilmerding v. Russ, 33 Conn. 67; Askhurst’s Appeal, 60 Pa. 290; McClane v. Shepherd 21 N. J. Eq. 76; Decouche v. Savetier, 3 Johns. Ch. 190; Ward v. Smith, 3 Sandf. Ch. 592; Higgins v. Higgins, 14 Abb. N. C. 13; Clark v. Boorman, 18 Wall. 493; Perry, Trusts, § 865.

We, therefore, see no reason to doubt that the judgment below was right, and it should be affirmed, with costs.

All concur.