Ela v. Ela , 158 Mass. 54 ( 1893 )

Holmes, J.

The allegations of the bill, so far as they concern the only defendant against whom relief is sought, are, that while the plaintiff was a minor and under the guardianship of his mother in Maine, the defendant, his brother, somewhere between July, 1873, and July, 1876, it would seem in 1873 and 1874, being intrusted by the guardian with the possession of property belonging to the plaintiff, converted a part of it to his own use; and that in November, 1882, the plaintiff executed a release to his guardian, being partly induced 'to do so by a representation, not alleged to have been fraudulent or even false, made by another brother in the said defendant’s hearing, and not contradicted by the latter, that no one was liable for the loss of the property except the speaker. The plaintiff came of age on October 14, 1878, but says that he only found out the alleged conversion in 1890.

It will be perceived that a plain case of liability in trover is stated. But no facts are set out to remove the bar of the statute of limitations .if the plaintiff had sued at law. We presume it is for this cause and in the hope of finding a more latitudinarian rule in equity that the proceeding is by way of bill, relying upon the old English principle, extended from real to personal property, that any one who enters upon an infant’s property may be made to account. Co. Lit. 89 b, 90 a. Newburgh v. Bickerstaffe, 1 Vern. 295. Cary v. Bertie, 2 Vern. 333, 342. Morgan v. Morgan, 1 Atk. 489. Dormer v. Fortescue, 3 Atk. 124, 130. Blomfield v. Eyre, 8 Beav. 250. Wyllie v. Ellice, 6 Hare, 505. Quinton v. Frith, 2 Ir. Rep. Eq. 396. Chaney v. Smallwood, 1 Gill, 367.

Whether this jurisdiction, which was taken under very different circumstances from the present, exists in this Commonwealth, or whether, if it exists, it should be exercised where the relations between the plaintiff and his guardian cannot be settled, are questions upon which we express n,o opinion. It is enough to say, that it cannot be made use of in the way in which it is sought to be used here, as a mere device to get rid of the statutory limitation in a case which is wholly within the policy of the act. In Lockey v. Lockey, Prec. Ch. 518, “ My Lord Chancellor was clear of opinion, where one receives the profits of an infant’s estate, and six years after his coming of age he brings a bill for an account, that the statute of limitations is a bar to such suit, as it would be to an action of account at common law ; for this receipt of the profits of an infant’s estate is not such a trust as, being a creature of a court of equity, the statute shall be no bar to, for he might have had his action of account against him at law. ... If the infant lies by for six years after he comes of age, as he is barred of his action of account at law, so shall he be of his remedy in this court; and there is no sort of difference in reason between the two cases.” See Lewin on Trusts, (9th ed.) 1013. Knox v. Gye, L. R. 5 H. L. 656, 674. Here not only have twice six years elapsed since the plaintiff came of age, but more than six years have passed since he settled with his guardian, and thus was put on inquiry as to what property he was entitled to. The plaintiff shows such loches on the face of his bill that it must be dismissed. See Fogg v. Price, 145 Mass. 513, 516.

Bill dismissed.