Seculovich v. Morton , 101 Cal. 673 ( 1894 )

Paterson, J.—

On January 16, 1862, plaintiff purchased and caused to be conveyed to George H. Morton, infant son of defendant, a certain lot of land in the city and county of San Francisco, upon the parol agreement that if the child should die unmarried and without issue before he arrived at the age of twenty-one years, defendant, after distribution of the property to him as heir, would, on demand of plaintiff, immediately convey the same to the latter. The child died when a little over five years of age—December 16,1866 —but no demand was made by plaintiff for a conveyance until February 14, 1890. In February, 1891, this action was brought for judgment declaring that defendant holds the land in trust for plaintiff, and requiring him to convey the same. A demurrer to the complaint was sustained, and, plaintiff failing to amend, judgment was entered in favor of defendant.

It is claimed that the cause of action stated is not stale or barred by the statute of limitations, because it is alleged in the complaint that within six months after the death of George H. defendant left this state, and has ever since resided in the state of Maryland, where the demand above referred to was made upon him February 14, 1890.

We think the demurrer was properly sustained. The defendant’s absence from the state did not deprive the plaintiff of a remedy. He might have invoked the •authority of the court, and, upon service of process in the manner prescribed by the statute, could have procured the appointment of a commissioner to convey the property to him. (Perkins v. Wakeham, 86 Cal. 580; Applegate v. L. M. Co., 117 U. S. 266; Arndt v. Griggs, 134 U. S. 320; Adams v. Cowles, 95 Mo. 501; 6 Am. St. Rep. 74; Felch v. Hooper, 119 Mass. 52.)

Irrespective of the question whether the'defendant’s absence from the state prevented the running of the statute of limitations, we think the judgment of the court below was right, because the plaintiff did not make a demand within a reasonable time. Failing to do so, his cause of action became barred by his laches. True, it is a general rule that the statute does not run against an express trust where there is concealed fraud; but when the injured party has been guilty of great laches in the prosecution of his remedy he will be barred in equity on account of the paramount importance of having titles settled. (Godden v. Kimmel, 99 U. S. 202; Hume v. Beale’s Executrix, 17 Wall. 348; Bell v. Hudson, 73 Cal. 287; 2 Am. St. Rep. 791; West v. Russell, 74 Cal. 544; Chapman v. Bank of California, 97 Cal. 159.)

Judgment affirmed.

Garoutte, J., and Harrison, J., concurred.

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