CAMPAU v. VAN DYKE. There was no error in the judgment, and it must be affirmed, with costs. The other Justices concurred. 15 371 110 296 15 371 1148 John J. Campau v. Elizabeth Van Dyke, executrix, et al. Decree, when may be impeached for fraud: Laches. Where a decree establishing title to real estate is sought to be impeached by bill in chancery, as having been obtained by fraud and collusion, the bill must be brought within a reasonable time, having reference to the nature and all the circumstances of the particular case. 15 The decree sought to be set aside was obtained some seven months be- 141 fore complainant arrived at the age of majority. He was aware of the decree and its effect, and all the material facts of the case, when he attained his majority. He delayed six years and a half after that period before bringing his bill. In the meantime, the principal party charged with the 'fraud, and the guardian charged with collusion, as well as the principal witnesses, who, from the nature of the case, must have been best acquainted with the facts, had all died. Held, that he had not brought his bill within a reasonable time, and it was dismissed on this ground. Heard April 25th, 26th and 30th. Decided May 14th. Appeal in Chancery from Wayne Circuit. The bill in this cause was filed to impeach and set aside a decree rendered by the Circuit Court for the county of Wayne, April 24th, 1854, in a cause wherein James A. Van Dyke since deceased, and whose representatives are the principal defendants in this cause-was complainant, and the complainants in this cause were defendants. - The grounds upon which said decree was sought to be impeached are, that at the time it was rendered, complainant was an infant, and that no day in court, after he should become of age, was given him by said decree to show cause against it; and also that said decree was obtained by fraud and collusion. The bill was dismissed in the court below, with costs. CAMPAU . VAN DYKE. C. I. Walker and A. Russell, for complainant. The lapse of time furnishes no bar to this bill. No lapse of time short of twenty years would do so, even if there was no fraud or trust. The object of the bill is to vindicate the complainant's title to real property; and in analogy to the statute of limitations, this can be done any time within twenty years. 2 Comp. L. § 5350; 2 Story's Eq. Jur. §1520-1; 2 Curtis Ch. 205; 6 T. B. Mon. 609; 7 How. 258; Id. 829; 1 Dana, 378, 297. But the analogy will not apply in case of trusts, for no length of time runs in favor of a trustee as against a cestui que trust. 2 Daniells, Ch. Pr. 735, N. 1; 5 Ohio, St. 122; 2 Jones Eq. 430; 24 Penn. St. 482. And one dealing with the trustee, with full notice of the trust, occupies the same position.-10 Rich. Eq. 221; 23 Geo. 76. Newberry & Pond, for defendants. If the complainant could have ever questioned said decree on the ground of fraud and collusion, he has lost the right. 1. By his laches. Admitting that the decree was obtained by fraud and collusion, it was not void, but only voidable. And nothing is better settled than that a party who has a right to avoid a transaction for fraud, must make his election to do so, and act promptly. If he sleeps upon his right, the law construes it an election not to avail himself of the right. This decree was rendered October 20, 1854. Defendant became of age December, 1854. He filed this bill August 5, 1861, almost seven years after he became of age. He knew, if his own statement is to be believed, of the alleged corrupt bargain between Van Dyke and Meldrum very soon after the decree was rendered. We submit that he delayed too long. CAMPAU . VAN DYKE. 2. By electing to take under the will mentioned in the stipulation. It is clear that complainants claim to have the trust deed reinstated, and his claim as legatee, under said will, are wholly inconsistent. The will was evidently made upon the basis that the testator had regained the control of his property by the decree, setting aside the trust deed; with that deed in existence, he had no property to dispose of by will. CHRISTIANCY J. On the 7th day of July, 1853, Antoine Beaubien, an old, uneducated and weak minded Frenchman without children, being the owner of a large landed estate in and near Detroit, the management of which he was compelled to entrust to an agent, executed a deed of trust, conveying the property to John T. Meldrum, then his confidential agent and manager of the property. This deed reserved to the grantor the possession of a small part of the property, and the income of most of it, during his life; but made full provision for the distribution of the property and its proceeds among several different persons, mostly his relatives, including his second wife, then living, and several of her children. The complainant who had been brought up in his family, and his sister, the wife of Meldrum, were second cousins of the grantor, and they were the principal beneficiaries under the deed. John T. Meldrum, however, was made a joint beneficiary with his wife. On the 29th day of October, 1853, Beaubien, the grantor, having, for some reason, become dissatisfied with this arrangement of his property, filed his bill in chancery against Meldrum and the counsel who had drawn up and superintended the execution of the trust deed, alleging that he had been imposed upon, and fraudulently induced by them to execute the deed, under the belief, on his part, that the same was a last will and testament, and praying that it might be set aside. ་ CAMPAU v. VAN DYKE. And on While this bill was pending, and after the answer of the defendants therein had been filed, on the 4th day of February, 1854, Beaubien sold and conveyed to James A. Van Dyke, by warranty deed, the lands previously conveyed by the trust deed to Meldrum. the 7th day of March, 1854, Beaubien's bill was discontinued and the files withdrawn; and on the same day Van Dyke filed his bill in the Circuit Court for the county of Wayne in chancery against Meldrum, the trustee, and all the beneficiaries mentioned in the deed; setting forth his purchase of the property, alleging that said Beaubien had, notwithstanding the trust deed, remained in possessionthat the trust deed was executed by Beaubien under the misapprehension that it was a will, he being unable to speak the English language and understanding it very imperfectly, uneducated, of weak mind and incapable of comprehending the legal effect of such an instrument; but making no charge of fraud against any one in the procurement of its execution-praying that the trust deed may be set aside and cancelled, and the trustee decreed to release and convey to complainant Van Dyke. Several of the defendants in Van Dyke's suit were minors, and, among others, the present complainant; and Jeremiah Van Rensselaer, a solicitor of the court, was, on motion of Van Dyke, on the 21st day of March appointed guardian ad litem to the present complainant and the other infant defendants; the petition for that purpose being in the hand-writing of the present complainant. On the 23d day of March Van Rensselaer filed an answer for all the infant defendants in the usual form, submitting their rights to the protection of the court. He also, on the same day, filed the answer for Meldrum and wife as their solicitor, admitting most of the allegations of the bill, neither admitting nor denying the allegation that the trust deed was executed by Beaubien under the belief that it was a will, but declaring his belief that Beaubien had executed it with CAMPAU v. VAN DYKE. Both the full understanding that it was a deed of trust. Meldrum and his wife, however, declaring that they have no desire or wish to hold said property or the benefits conferred by said deed in opposition to the wishes of Beaubien; and declaring that they offer no resistance to the prayer of Van Dyke's bill, aside from a simple narration of the facts set forth in the answer, and submit to such decree or order in the premises as the court may deem just and proper. On the 18th day of April testimony on the part of Van Dyke purports to have been taken, Van Rensselaer, as solicitor and guardian, assenting: no replication having been then or afterwards filed. The witnesses were not cross-examined, and no testimony was taken on the part of the defendants. On the 20th of April, 1854, a decree was taken granting the relief prayed for, setting aside the deed of trust, and directing Meldrum to release and convey to Van Dyke. This decree was approved by the judge on the 24th of April, and directed to be entered. Van Dyke, having previously taken possession under his deed from Beaubien, continued in possession, and proceeded to make sales of a considerable portion of the property, until his death, which happened on the 7th of May, 1855; having made a will, his executors and devisees have since continued in the possession and control of the property. On the 11th day of December, 1854, about seven months and a half after the entry of the decree, the present complainant attained the age of majority. Complainant's bill in the present case was filed on the 5th day of August, 1861, against Meldrum and the executors, devisees and heirs of Van Dyke. This bill sets up and insists upon the validity of the trust deed from Beaubien to Meldrum, and complainant's rights under it, as one of the cestuis que trustalleges that the decree in the Van Dyke suit was obtained by a corrupt and fraudulent agreement between Van Dyke, and Meldrum, the trustee, by which the latter received |