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Gratz's Executors et al. v. Cohen et al.

way; and as to the dead, who are not here to answer for themselves, it would be the height of injustice and cruelty to disturb their ashes and violate the sanctity of the grave, unless the evidence be clear beyond a reasonable doubt." Also to the same effect, and that laches or lapse of time may be resorted to as a defence on the evidence without being pleaded, Giles v. Baremore, 5 Johns. Ch. 550; Baker v. Biddle, 1 Baldwin, 417.

For the general doctrine as to stale demands in equity, and the effect of parties not promptly asserting their rights, see Salsbury v. Bagott, 2 Swanst. 613; Beckford v. Wade, 17 Ves. 97; Andrew v. Wrigley, 4 Bro. Ch. 125; Brown v. Deloraine, 3 Bro. Ch. 639; Hovenden v. Annesley, 2 Sch. & Lef. 629; Hercy v. Dinwoody, 4 Bro. Ch. 268; Wych v. East India Co., 3 P. Wms. 309; Pickering v. Lord Stamford, 2 Ves. 582; Christophers v. Sparke, 2 Jac. & Walk. 223.

As a rule, the statute of limitations does not operate in cases of trust or fraud, but as soon as fraud is discovered it begins to rise. Wamberzee v. Kennedy, 4 Desaus. 479.

In Veazie v. Williams, 3 Story, 629, there were five years and a half between the sale alleged to be fraudulent and the filing of the bill to avoid it, and the court held the lapse of time to be a bar, because by time the evidence as to the original transaction had been obscured. A court of equity should never be active in granting relief where the circumstances are of such a nature as that it may become the instrument of as much injustice as it seeks to redress. To the same effect, Gould v. Gould, 3 Story, 516.

The circumstances from which the laches in this case are deduced are very flagrant. Five years and eleven months were allowed to elapse after the discovery of the alleged fraud.

If the judgment of $7,916, in favor of Gratz's Administrators v. Simon's Executors, was a lien on the real estate, the Cohens waited till that lien had expired, which it did in five years, or 1838. They never charged a fraud whilst Simon Gratz was in life and health.

The first allegation of the plaintiffs is in J. S. Cohen's affidavit at Lancaster, 25th March, 1833, within a month of the date of the agreement. In this there is no averment of fraud in either Leah Phillips or Simon Gratz. The most is an implication of such fraud.

In the letter of the Cohen family to the administrator of Michael Gratz, dated 29th March, 1833, the same guarded and doubtful phraseology is used, but there is no averment of fraud. So in the affidavit of 8th April, 1833.

In the affidavit of J. S. Cohen, of 29th July, 1833, no fraud is charged, the strongest word being "collusion."

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Gratz's Executors et al. v. Cohen et al.

No averment of fraud was made till this bill was filed in January, 1839; and then, as above stated, Simon Gratz was ill, and he died before his answer could be prepared. It will be remembered that the insinuations of collusion in these affidavits were promptly met by counter-affidavits from Leah Phillips, to which, as well as to her answer, the court are particularly referred.

Of this gross laches of nearly six years, the learned judge took no other notice than in saying, that it was to be lamented that Mr. Gratz died before his answer was prepared. In this omission it is submitted that he erred. The deposition of Mr. Gratz is no equivalent to an answer to the various and specific allegations of the plaintiffs' bill.

Had the plaintiffs interposed at once on the discovery of the imputed fraud, or at any time short of six years, or for five years and eleven months, the lands would not have been sold. The plaintiffs lay by till the lien of the judgment was gone, and the lands disposed of at great trouble and by great effort, for it is manifest that nothing but the greatest exertion and constant supervision by Mr. Gratz and his agents could have disposed of them to even moderate advantage.

The argument of the counsel for the appellees consisted chiefly in an examination of the evidence, to show that the decree of the Circuit Court was correct. A great part of this testimony has been necessarily omitted in the statement of the case, and the argument drawn from it cannot therefore be condensed. The authorities cited by the counsel were the following.

Simon Gratz was not a bona fide purchaser without notice of his grantor's breach of trust, and his representatives were rightfully decreed by the court to be trustees for the benefit of the Cohens, and charged with the value of the lands so wrongfully obtained.

"Courts of equity will decree a trust in invitum against a party who purchases trust property in violation of the objects of the trust, and will force the trust upon the conscience of the guilty party, and compel him to hold the property subject to it in the same manner as the trustees held it." 1 Story's Equity, 395-405.

Scott v. Tyler, 2 Dickens, 725: "If one concerts with an executor or legatees, by obtaining the testator's effects at a nominal price, or at a fraudulent undervalue, or by applying the real estate to the purchase of other subjects for his own behoof, or in extinguishing the private debt of the executor, or in any other manner, contrary to the duty of the office of the executor,

Gratz's Executors et al. v. Cohen et al.

such concert will involve the seeming purchaser, or his pawnee, and make him liable for the full value." 2 Story's Equity, $1257.

Hill v. Simpson, 7 Ves. jr. 152: "Transfer by an executor, a clear misapplication of assets immediately after the death, to secure a debt of the executor and future advances, under circumstances of gross negligence, though not direct fraud, set aside by general legatees.'

M'Leod v. Drummond, 17 Ves. jr. 169. Lord Eldon concurs in the opinion expressed by the Master of the Rolls, in Hill v. Simpson, that a general pecuniary or residuary legatee had the right to follow the assets. 1 Story's Equity, 424.

Wormley v. Wormley, 8 Wheat. 421: "Wherever the purchaser is affected with notice of facts, which in law constitute a breach of trust, the sale is void as to him, and a mere general denial of all knowledge of fraud will not avail him, if the transaction is such as a court of equity cannot sanction." See also Mechanics' Bank v. Seaton, 1 Peters, 309.

The appellants' allegation of laches is not sustained by the evidence, nor do their authorities justify the use to which they are applied. A comparison between the facts of this case and those of the decisions referred to, will show that the lapse of time which prevented the interposition of courts of equity far exceeded that which is here the ground of complaint, and did not admit of the explanations which excuse the comparatively brief delay in the complainants in seeking a redress for their wrongs in a federal court.

An examination of the following leading cases, cited by the appellants, will show what the courts have considered as stale claims.

In Prevost v. Gratz, 6 Wheat. 481, it was determined that the lapse of forty years, and the death of all the original parties, was sufficient to presume the discharge and extinguishment of a trust proved once to have existed by strong circumstances. This was in analogy to the rule of law, which, after a lapse of time, presumes the payment of a debt, surrender of a deed, and extinguishment of a trust.

Cholmondeley v. Clinton, 2 Jac. & Walk. 1. It was held that laches and non-claim by the owner of an equitable estate, under no disability, for twenty years, where there has been no fraud, will constitute a bar to equitable relief, by analogy to the statute of limitations.

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Miller v. M'Intyre, 6 Peters, 65. "At least twenty-six years, says Judge McLean, "elapsed after the adverse possession was taken by the defendants, before suit was brought against them by the complainants, and nineteen years from the decease of their ancestors."

Gratz's Executors et al. v. Cohen et al.

Coulson v. Walton, 9 Peters, 63. Notwithstanding a delay of more than thirty years in the institution of the suit, the court did not consider that lapse of time, under the circumstances of the case, should operate against the right set up by the complainants to have the specific execution of a contract decreed.

Baker v. Biddle, 1 Baldwin, 419. "The act of limitation," says Judge Baldwin, "has twice run over the plaintiff's claim, and, being barred at law, we can see no equitable circumstances to take it out of the rule."

Piatt v. Vattier, 9 Peters, 416. "There has been," say the court, "a clear adverse possession of thirty years without the acknowledgment of any equity or trust estate in Bartle, and no circumstances are stated in the bill, or shown in evidence, which overcome the decisive influence of such an adverse possession."

M'Knight v. Taylor, 1 Howard, 167. "In relation to this claim," says Chief Justice Taney, "it appears that nineteen years and three months were suffered to elapse, before any application was made for the execution of the trust by which it had been secured. No reason is assigned for this delay; nor is it alleged to have been occasioned in any degree by obsta cles thrown in the way of the appellant. As the record stands, it would seem to have been the result of mere negligence and

laches."

Gould v. Gould, 3 Story, 516. The delay was for nineteen years.

Veazie v. Williams, 3.Story, 631, has no analogy to the present case, and was reversed in 8 Howard, 134; there was no fraud imputed to the defendants, and the plaintiff, says Judge Story, (pp. 631, 632,) “is not now at liberty to shift his own loss upon the defendants, or to make them responsible for the misdeeds of Head, to which they were not parties, and whom the plaintiff has been content to release from all responsibility."

Mr. Justice WOODBURY delivered the opinion of the court. In this case, the plaintiffs in the court below, as children of Solomon and Beliah Cohen, and grandchildren of Joseph Simon, claimed an interest in certain lands which had been conveyed to Simon Gratz by Mrs. Phillips, the surviving executrix of Joseph Simon.

That conveyance was alleged to have been fraudulent, and the plaintiffs prayed that it be set aside, and Simon Gratz be required to account for any sales and rents of the land. The court below decreed that the conveyance was void for fraud; vet, as the lands had been bought of Gratz since by innocent

Gratz's Executors et al. v. Cohen et al.

purchasers, declined to set it aside, but ordered the respondent to pay over the full value of the lands, and without any deduction for debts, advances, or expenses.

This is an appeal from that decision; and in order to determine whether evidence enough exists to show that fraud was practised by either of the parties to the conveyance, as it is charged on both of them, it will be necessary to ascertain how the lands were situated, and the relation to them in which the grantor and grantee, as well as the plaintiffs, then stood.

Some time prior to 1804, Joseph Simon and Michael Gratz purchased in partnership large tracts of land in Pennsylvania, the title deeds running to the former alone, under an agreement to account to the latter for half the proceeds. As sales of them were made from time to time, difficulties and litigation arose between them as to the proceeds, extending even to eight reported cases in the courts of Pennsylvania, and all of which appear to have been decided against Šimon. He complained much that Gratz had obtained from more than he was entitled to. Accordingly, when Simon made his will and died in 1804, he forbade, by the last codicil, any portion of his estate going to Michael Gratz or his wife Miriam, who was the daughter of Simon, and did not make either of them executors on his estate. But he appointed Levi Phillips and wife, the latter being another daughter, and Mrs. Cohen, a third daughter, executors. At first he bequeathed one third of the income of the residue of his estate to each daughter, but by the codicil increased Mrs. Phillips's and Mrs. Cohen's share each to one half of the principal, and, withdrawing Mrs. Gratz's share, empowered Levi Phillips to give to Mrs. Cohen the principal rather than the interest, or income. At the death of either daughter, her share was to vest in her children, as tenants in common. He gave to his executors, and the survivors of them, full power to sell his real, as well as personal estate.

Some suits between Simon and Michael Gratz in relation to their partnership property were pending at the death of the former; others were soon after brought, and others still, as sales of the land were made by the executors, and recoveries were had in some of them for portions of what Simon and they had sold. By the death of Mr. Phillips in 1832, and of Mrs. Cohen in January, 1833, Mrs. Phillips had become the sole surviving executrix, and she in February, 1833, proposed to Simon Gratz, executor of Michael Gratz, to make a final settlement of the claims on his part against the estate of Joseph Simon. At that time, Simon Gratz held unsatisfied a judgment against Levi Phillips and Mrs. Cohen, which had been recovered in 1831 for $7,916.73.

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