Statement of Facts.

lius L. Baker and the defendant Henrici succeeded him as trustees of said trust, and at the death of Baker, in 1868, the defendants succeeded Baker and Henrici as trustees of said trust and managers of all the estate of the Harmony Society; and that Baker and Henrici, while such trustees, and the defendants ever since, "received and accepted the said trust fund, and all the profits and interest thereof, and all accretions of said fund received by them, not as their own, but in the same trust in which said Rapp had held said fund, and always recognized and acknowledged said trust, and always disclaimed any greater interest in said fund than any other contributor thereto; that the plaintiff did not know and had no means of ascertaining the names and places of abode of the other parties interested in said fund, but they were very numerous and their interest is common with his; and that neither Rapp nor either of the defendants ever rendered to the plaintiff, or to any of the beneficiaries of said fund, any account of their trust, although the plaintiff demanded an account of them and a settlement of his share therein before the bringing of this suit in May, 1882."

The prayer of the bill was "that said trust be rescinded and held for naught, as resting upon fraud and iniquity and being contrary to public policy and the laws of the land; that the persons interested in its assets be remitted to their original rights, the plaintiff included; that the defendants discover the names and places of abode of the other parties interested in the funds and property under the control of the defendants, for the purpose that they may be brought before the court; that an account be taken the said trust and assets and of the share of the plaintiff therein; that he have compensation for his contributions to said trust and to its assets; that a distribution of said assets be had, and that the plaintiff receive his share therein;" and for further relief.

The defendants demurred to the bill, and assigned the following causes of demurrer:

"1st. That it appears in and by said bill that more than fifty years have elapsed since the said alleged cause of complaint occurred to the plaintiff, whereby said cause of com

Opinion of the Court.

plaint hath become barred by the statute of limitations in such cases made and provided.

"2d. That it appears in and by said bill of complaint that the causes of complaint are stale, and that so long a time has passed since the matters and things complained of took place that it would be contrary to equity and good conscience for a court to take cognizance thereof, or to enforce any further or other answer thereto.

"3d. That no case is stated in said bill authorizing the court to grant the relief sought, or any other relief."

The Circuit Court, without considering the first and third causes of demurrer, sustained the demurrer for the second cause assigned, and dismissed the bill. 15 Fed. Rep. 753. The plaintiff appealed to this court, and having since died, the appeal was prosecuted by his executors.

Mr. William Reinecke and Mr. George Hoadly for appellants. Mr. Herman Marckworth was with them on the brief.

Mr. George Shiras, Jr., for appellees. Mr. C. S. Fetterman was with him on the brief.

'MR. JUSTICE GRAY delivered the opinion of the court.

This bill was filed against the trustees of the Harmony Society, an unincorporated association of persons living together as a community, by a former member of the society, claiming a share in property in the hands of the trustees.

The bill is sought to be maintained on the ground that the trust was not a charity, in the legal sense, and the members of the society were equitable tenants in common of the property held in trust. The learned counsel for the appellants differ in their views of the trust; the one insisting that it was unlawful because founded in fraud and against public policy, and should therefore be dissolved; and the other contending that it was a lawful and continuing trust. We have not found it necessary to consider which of these is the sound view, because we are of opinion that the plaintiff did not show himself to be entitled to invoke the interposition of a court of equity.

VOL. CXX-25

Opinion of the Court.

As a general rule, doubtless, length of time is no bar to a trust clearly established, and express trusts are not within the statute of limitations, because the possession of the trustee is presumed to be the possession of his cestui que trust. Prevots v. Gratz, 6 Wheat. 481, 497; Lewis v. Hawkins, 23 Wall. 119, 126; Railroad Co. v. Durant, 95 U. S. 576.

But this rule is, in accordance with the reason on which it is founded, and as has been clearly pointed out by Chancellor Kent and Mr. Justice Story, subject to this qualification, that time begins to run against a trust as soon as it is openly disavowed by the trustee, insisting upon an adverse right and interest which is clearly and unequivocally made known to the cestui que trust; as when, for instance, such transactions take place between the trustee and the cestui que trust as would in case of tenants in common amount to an ouster of one of them by the other. Kane v. Bloodgood, 7 Johns. Ch. 90, 124 [S. C. 11 Am. Dec. 417]; Robinson v. Hook, 4 Mason, 139, 152; Baker v. Whiting, 3 Sumner, 475, 486; Oliver v. Piatt, 3 How. 333, 411. This qualification has been often recognized in the opinions of this court, and distinctly affirmed by its latest judgment upon the subject. Willison v. Watkins, 3 Pet. 43, 52; Boone v. Chiles, 10 Pet. 177, 223; Seymour v. Freer. 8 Wall. 202, 218; Bacon v. Rives, 106 U. S. 99, 107; Philippi v. Philippe, 115 U. S. 151.

In the case of an implied or constructive trust, unless there has been a fraudulent concealment of the cause of action, lapse of time is as complete a bar in equity as at law. Hovenden v. Annesley, 2 Sch. & Lef. 607, 634; Beckford v. Wade, 17 Ves. 87. In such a case, Chief Justice Marshall repeated and approved the statement of Sir Thomas Plumer, M. R., in a most important case in which his decision was affirmed by the House of Lords, that "both on principle and authority, the laches and non-claim of the rightful owner of an equitable estate, for a period of twenty years, (supposing it the case of one who must within that period have made his claim in a court of law, had it been a legal estate,) under no disability, and where there has been no fraud, will constitute a bar to equitable relief, by analogy to the statute of limitations, if,

Opinion of the Court.

during all that period, the possession has been under a claim unequivocally adverse, and without anything having been done or said, directly or indirectly, to recognize the title of such rightful owner by the adverse possessor." Elmendorf v. Taylor, 10 Wheat. 152, 174; Cholmondeley v. Clinton, 2 Jac. & Walk. 1, 175, and 4 Bligh, 1.

Independently of any statute of limitations, courts of equity uniformly decline to assist a person who has slept upon his rights and shows no excuse for his laches in asserting them. "A court of equity," said Lord Camden, “has always refused its aid to stale demands, where the party slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith and reasonable diligence; where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court." Smith v. Clay, 3 Bro. Ch. 640, note. This doctrine has been repeatedly recognized and acted on here. Piatt v. Vattier, 9 Pet. 405; McKnight v. Taylor, 1 How. 161; Bowman v. Wathen, 1 How. 189; Wagner v. Baird, 7 How. 234; Balger v. Badger, 2 Wall. 87; Ilume v. Beale, 17 Wall. 336; Marsh v. Whitmore, 21 Wall. 178; Sullivan v. Portland & Kennebec Railroad, 94 U. S. 906; Godden v. Kimmel, 99 U. S. 201. In Hume v. Beale, the court, in dismissing, because of unexplained delay in suing, a bill by cestuis que trust against a trustee under a deed, observed that it was not important to determine whether he was the trustee of a mere dry legal estate or whether his duties and responsibilities extended further. 17 Wall. 348. See also Bright v. Legerton, 29 Beavan, 60, and 2 D., F. & J. 606.

When the bill shows upon its face that the plaintiff, by reason of lapse of time and of his own laches, is not entitled to relief, the objection may be taken by demurrer. Maxwell v. Kennedy, 8 How. 210; National Bank v. Carpenter, 101 U. S. 567; Lansdale v. Smith, 106 U. S. 391.

The allegations of this bill, so far as they are material to the defence of laches, are in substance as follows:

Opinion of the Court.

The Harmony Society is a voluntary association, formed in 1805 by the plaintiff's parents and other heads of families, who had emigrated from Germany under the leadership of one Rapp, and become subject to his control in both spiritual and temporal affairs. In that year Rapp, for the purpose of acquir ing absolute dominion over their means and mode of living, falsely and fraudulently represented to them that they could not be saved from eternal damnation, except by renouncing the plan of a separate home for each family, yielding up all their possessions, as had been done by the early Christians. and laying them at the feet of Rapp as their apostle, to be put into a common fund of the society, and thenceforth living as a community under his control, receiving in return only the necessaries of life; and they, induced by and relying on his false and fraudulent representations, immediately yielded up all their possessions to the common fund of the society, and placed the fund in his keeping as their trustee, and thenceforth lived as a community or common household, submitted themselves and their families to do for the community such work as he directed, allowed the avails thereof to form part of the common fund, and relinquished to him and his successors in the leadership of the community the management of the trust fund and the control of their own persons and those of their wives and children, and received only the necessaries of life in return. Rapp received and accepted the trust fund, and all the accretions to it by the work of the inhabitants of the community or otherwise, not as his own, but in trust for the members of those families and the contributors to the fund, and for their common benefit; and always, up to his death in 1847, recognized and acknowledged said trust, and disclaimed any greater interest in the fund than that of any other contributor, and any other right to its management and control than by virtue of his leadership of the community. In 1807 Rapp obliged his followers to abjure matrimony, and thenceforth did not permit them to marry in the community, and compelled any one about to marry to leave it. The plaintiff was born in the community in 1807, and was reared in and as a part of it, under Rapp's teachings and control, and faith