Summary
In Hearst v. Pujol, 44 Cal. 235, it is said: " But as between trustee and cestui que trust, in the case of an express trust, the Statute of Limitations does not begin to run until the trustee repudiates the trust by clear and unequivocal acts or words, and claims thenceforth to hold the estate as his own, not subject to any trust, and such repudiation and claim are brought to the knowledge of the cestui que trust.
Summary of this case from Janes v. ThrockmortonOpinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing (Denied, Granted) 44 Cal. 230 at 235.
Appeal from the District Court of the First Juicial District, County of San Luis Obispo.
The plaintiff appealed.
COUNSEL
S. Heydenfeldt, for Appellant.
Walter Murray, for Respondent.
JUDGES: Belcher, J.
OPINION
BELCHER, Judge
The respondent filed a petition for rehearing.
By the Court, Belcher, J., on petition for rehearing:
The only point made in the petition for rehearing is upon the plea of the Statute of Limitations.
It is claimed that the trust which is sought to be enforced against the defendant was a resulting trust, and barred by the lapse of time before the action was commenced.
We did not particularly notice this defence in our former opinion, for the reason that we did not suppose it was seriously interposed.
The error of counsel is in supposing that the trust was a resulting, and not an express trust. As we understand it: If A. conveys land to B., which, by the terms of the conveyance, is to be held in trust and reconveyed to himself or another, he thereby creates an express trust. (Act concerning fraudulent conveyances, Sec. 6.)
B. must accept the trust, but he may do that by accepting the deed and acting under it in the performance of the trust. (Perry on Trusts, Sec. 260.)
The case supposed differs in no material respect from the case in hand. The Estradas conveyed one thousand five hundred acres of land to Pujol, in trust for themselves, and in their deed directed when, and in what manner, it should be reconveyed, and Pujol accepted the trust. But as between trustee and cestui que trust, in the case of an express trust, the Statute of Limitations does not begin to run until the trustee repudiates the trust by clear and unequivocal acts or words, and claims thenceforth to hold the estate as his own, not subject to any trust, and such repudiation and claim are brought to the knowledge of the cestui que trust. (Perry on Trusts, Secs. 863, 864.)
That Pujol had not repudiated the trust, is clear, for in his answer he says, that " until the actual making and delivery to them (the Estradas) of this defendant's deed of the 16th day of November, 1868, this defendant stood ready and willing, and was ready and willing, to make to said Estradas or to whomsoever else they might assign, their rights in that regard, the conveyance provided in said deed of the 17th of May, 1862, to be made."