Opinion
May Term, 1901.
Judgment affirmed, with costs. All concurred, except Parker, P.J., and Chase, J., dissenting.
I dissent from the conclusion of my brethren, which affirms the judgment in this case, for the following reasons: Concede that Edgerton bid off the lands in question under circumstances which required him to hold them for the benefit of all those whose claims were included in the judgment, and that as to them his interest therein would be that of a trustee merely (a relation, however, which is by no means sustained by the contract between them and himself), nevertheless upon his death, before he took the title thereto, his duties as such a trustee did not devolve upon either his widow or his executrix. The law imposed no obligation upon her to go on and execute such a trust. At most it was a right or equity which the court would impress upon the land and itself execute at the suit of a party interested. And it was a right which at once accrued as soon as Edgerton's death terminated his duties. When Mrs. Edgerton took the title from the sheriff absolutely in her own name and subsequently conveyed to this defendant, neither she nor this defendant assumed the duties or the character of a trustee for these assignors, except so far as the law would imply such duties ex maleficio. And it is well settled that, as against the beneficiary of a trust so created, the Statute of Limitations begins to run from the time when the party became chargeable by such implication. ( Lammer v. Stoddard, 103 N.Y. 672; Price v. Mulford, 107 id. 303, 308; Mills v. Mills, 115 id. 80, 86; Gilmore v. Ham, 142 id. 1, 10.) There is not a particle of evidence to show that this defendant ever assumed any trust concerning any portion of these lands. Probably he knew of the arrangement which Edgerton had made with these creditors to endeavor to collect their debts, and that those debts had been included in the judgment under which the premises had been sold, but he never in any way acknowledged any trust in himself nor obligation to hold such lands for the others. He did not purchase them under any such suggestion or arrangement; nor was he called upon to repudiate any such arrangement or obligation. He merely purchased the lands from Mrs. Edgerton, and, beyond all doubt, he by her conveyance acquired the clear legal title to the same. Of this fact all the assignors at once had notice, and if any one had then desired, he could have at once brought this action to impress his equities upon the land. Clearly, this defendant has never assumed to protect them, or in any manner to act for them therein; nor is there any averment in the complaint that he ever did; and there was no reason why there should be any delay in claiming the very relief they now ask. Manifestly, the plaintiff and his assignors have never had any lien upon these lands. If anything, it is an equitable interest arising out of the trust under which it is supposed Edgerton held them at the time of his death, to be impressed upon the lands by the aid of the court. Clearly, such interest or equity had arisen when Edgerton died, and this action is one in equity to enforce it. It was barred by the statute after the expiration of ten years from the time it so accrued. ( Gilmore v. Ham, 142 N.Y. 1.) I am of the opinion that the plaintiff's claim was barred by the statute, and that for such reason the judgment should be reversed. Chase, J., concurred.