Osborn v. Swetnam

Henderson, J., delivered the opinion of the Court. This appeal is from an order sustaining a demurrer and dismissing a bill of complaint in four counts, filed June 25, 1958. Count I alleges that the complainant is a resident of the District of Columbia, and that the respondents are husband and wife, “bona fide residents of Prince Georges County, Maryland, since August, 1955,” and “in the horse-racing business”. In September, 1951, while he was “sick”, complainant turned over to the husband $55,000 in cash upon the understanding that it would be “held in a safe place * * * to be returned * * * when he needed the .cash”; that the wife, but no one else, should be told “who the real owner was so that in the event either or both” Osborn or Swetnam were “in jail or were killed,” the money would be returned to the complainant or his family.

Swetnam took the money to the house in Washington where he resided, which was owned by Swetnam’s father-in-law, and told the complainant it “had been hidden in the rafters in the attic”. The complaint further alleges that both the respondents claim that the money disappeared in December, 1951, and so informed him in February, 1952, but they did not report the loss to the police until May, 1952. One DeMichele was then arrested and charged with taking the money, but was subsequently released without trial. In 1952, the respondents spent “huge sums of money”, and the complainant believes and alleges that these expenditures were made out of funds belonging to the complainant.

There are also general allegations of fraud and breach of trust. Respondents are alleged to have “wrongfully ²¹⁹ withheld” the money from the complainant, after repeated demands. Among the expenditures mentioned was a purchase, in 1954, of a half interest in the house where they resided in Washington. The count concludes with prayers that the court decree that the respondents, who own a one-half interest in four parcels of real estate described therein, located in Prince George’s County, hold the same, “subject to a resulting trust and/or constructive trust”, that the court appoint trustees if necessary, and pass temporary and permanent injunctions against transfer of the parcels described, and to compel conveyance of the interests therein of the respondents to the complainant.

Count II prays an accounting for the $55,000, and a sale of the respondents’ real and personal property. Count III seeks recovery of the money under the common counts, and demands judgment in the amount claimed, with interest. Count IV alleges a wrongful conversion of the money by the respondents in January, 1952, and likewise demands judgment. The demurrer sets up lack of jurisdiction in equity, misjoinder, laches and limitations.

The chancellor sustained the demurrer on the ground of limitations and laches. It was his view that since the bill alleges that the money was converted in January or February, 1952, (the date of the first demand for its return is not stated) the cause of action accrued more than three years before the institution of the suit on June 25, 1958. It seems clear that the alleged cause of action is for a conversion or breach of a bailment agreement, so that the period of limitations would be three years, under Code (1957), Art. 57, sec. 1. The same time would ordinarily be applied by analogy in equity, upon a theory of constructive trust, or for an accounting.

Cf. Rettaliata v. Sullivan, 208 Md. 617, 621 , Crawford v.