(185 Ind. 561) TERRY v. DAVENPORT et al. (No. 22958.)* A "constructive trust" is an implied trust, differing from a resulting trust, which is also implied, in lacking the element of intention to create a trust, arising by the operation of law regardless of intention and frequently contrary thereto, having its roots in fraud, actual or constructive, an essential ingredient. [Ed. Note. For other cases, see Trusts, Cent. Dig. § 139; Dec. Dig. 91. For other definitions, see Words and Phrases, First and Second Series, Constructive Trust; Resulting Trust.] 2. TRUSTS 373 CONSTRUCTIVE TRUST FINDINGS OF FRAUD. In an action to quiet title, findings held not to reveal the ultimate fact of fraud on the part of plaintiffs' predecessors in title, in relation to securing conveyances of the land from his father, defendant's grandfather. Under Burns' Ann. St. 1914, § 4012, requiring express trusts to be created in writing, an express parol trust cannot be impressed on land. [Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 15, 16; Dec. Dig. 17, 18(1).] 9. TRUSTS 374-CONSTRUCTIVE TRUSTS ENFORCEMENT-EQUITABLE RELIEF. The relief granted in constructive trust cases, on allegations that the trustee's predecessor procured the land by fraudulent promises to reconvey, is not measured by the promises of the wrongdoer, but may be contrary thereto, for where fraud, the basis of the constructive trust, is shown, relief is administered in accordance with equity rules. [Ed. Note. For other cases, see Trusts, Cent. Dig. $$ 607-612; Dec. Dig. 374.] [Ed. Note. For other cases, see Trusts, Cent. 10. LIMITATION OF ACTIONS ~104(1)—CONDig. $$ 604-606; Dec. Dig. 373.] CEALMENT OF CAUSE OF ACTION-STATUTE. 3. APPEAL AND ERROR 996-REVIEW-IN-302, where a person liable to an action conceals By provision of Burns' Ann. St. 1914, § FERENCES FROM FACTS-FUNCTION OF TRIAL the fact from the knowledge of the person enCOURT. titled, the action may be commenced within the period of limitation after the discovery of the In an action to quiet title, the drawing of inferences from evidentiary facts in the findings belongs exclusively to the domain of the trial court, which may not be invaded by the appel late tribunal. 5. TRUSTS 373-CONSTRUCTIVE TRUSTSFINDINGS OF FRAUD. In suit to quiet title against a defendant who filed a cross-complaint, setting up a constructive trust resting on the fraud of plaintiffs' predecessor in title, the existence of such predecessor's fraud, actual or constructive, as an ultimate fact, was necessary to defendant's right of recovery on her cross-complaint, and lack of a finding thereof was not supplied by findings of badges of fraud, fiduciary relations, or other mere evidences or rebuttable presumptions of fraud. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 604-606; Dec. Dig. 373.] 6. LIMITATION OF ACTIONS 5(3)-STATUTES OF LIMITATION-APPLICATION TO ALL SUITS. Statutes of limitation apply alike to suits formerly cognizable at law or in equity since the abolition of the distinctions between actions at law and suits in equity by the adoption of the Civil Code in 1852 (2 Rev. St. 1852, p. 27), giving but one form of action for the enforcement of private rights (Burns' Ann. St. 1914, § 249). [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. § 15; Dec. Dig. ←~5(3).] 7. LIMITATION OF ACTIONS 103(1)-STATUTE OF LIMITATIONS-EXPRESS TRUSTS-REPUDIATION. Statutes of limitation do not commence to run in cases of express continuing trusts un cause. Actions, Cent. Dig. § 511; Dec. Dig. [Ed. Note.-For other cases, see Limitation of 11. LIMITATION OF ACTIONS 195(5) — ConCEALMENT OF CAUSE OF ACTION-BURDEN OF PROOF. In suit to quiet title, where defendant's cross-complaint set up matters presumptively barred by limitation, the burden was on her to show concealment of the cause of action. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 712, 715; Dec. Dig. 195(5).] 12. LIMITATION OF ACTIONS 104(2)-CON CEALMENT OF CAUSE OF ACTION. The concealment of a cause of action which entitles the owner thereof, under Burns' Ann. St. 1914, § 302, to sue within the period of limitation after discovery of the cause, does not consist of mere silence or general declarations, and must have been some trick or artifice to prevent discovery, or some material fact concealed by positive or affirmative act or deed. [Ed. Note.--For other cases, see Limitation of Actions, Cent. Dig. § 512; Dec. Dig. 104(2).] 13. LIMITATION OF ACTIONS 102(8)—STATUTES OF LIMITATION-APPLICATION TO CONSTRUCTIVE TRUSTS. Statutes of limitation are applicable to constructive trusts. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 502; Dec. Dig. 102(8); Trusts, Cent. Dig. § 570.] 14. LIMITATION OF ACTIONS 1 STATUTES OF LIMITATION-DEFENSIVE CHARACTER. Generally speaking, statutes of limitation are laws of repose, merely affecting the remedy and availing only as defenses. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 1-3; Dec. Dig. 1.] 15. ADVERSE POSSESSION 106(5) - USE OF TITLE ACQUIRED. Open, notorious, exclusive, uninterrupted, and adverse possession of real estate for 20 years, regardless of color of title, is as effectual For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Rehearing denied. to confer complete title on the occupant as a grant, and he may use it to recover a possession lost after acquisition. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 615-618; Dec. Dig. 106(5).j 16. WITNESSES 146 - COMPETENCY UTE. STAT Under Burns' Ann. St. 1914, § 522, providing that in all suits by or against heirs or devisees to obtain title to or possession of property, a party shall be incompetent to testify as to any matter which occurred prior to the death of the ancestor, and section 525, providing that when the husband or wife is a party, and not a competent witness, the other shall also be excluded, in suit to quiet title by devisees against the daughter of testator's sister, the daughter's husband was not competent to testify as to a trans action between testator's sister and testator. Action to quiet title by John A. Davenport and others against Mary E. Terry, in which she filed a cross-complaint claiming equitable title to portions of the land and seeking recovery of possession thereof. From a judgment for plaintiffs, quieting their title, defendant appeals. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1914. Judgment affirmed. substance of the several findings-30-and in some instances the whole thereof. On July 8, 1861, John Davenport owned, in fee simple, 754 acres of land in Pulaski county and lived on a portion of it. Albert then lived on his father's land in a residence across a highway from that of his father. Ruth Gundrum's husband had died in 1859, and afterwards, until her death in 1888, she lived in her father's residence. Charles moved to Iowa in 1855, where he lived until his death in 1905. John Davenport's wife was 10 years younger than he. Neither could read or write, and for assistance in business affairs, they depended largely on Albert who was a shrewd, capable, and experienced business man, and they reposed confidence in his honesty. At the time, John owned personalty worth $8,000, but was surety on the bond of a defaulting clerk of the Pulaski circuit court. Albert told his parents of the defalcation, and stated that his father would lose all his land if not conveyed to him. At first the parents refused to make a deed, but afterwards Albert promised a reconveyance of the lands after the settlement of the ises and statements, the requested deed was clerk's liabilities, and, relying on the prommade, conveying all the land to Albert, excepting 40 acres. One hundred and twenty acres of this land, in section 1, township 30, range 2, included the portion on which Albert was then residing, and was afterwards, until his death in 1906, occupied by him as his homestead. For 80 acres of this Albert McConnell, Jenkines, Jenkines & Stuart, of Logansport, Milo M. Bruce and Lincoln V. Cravens, both of Hammond, and John G. Reidelbach, of Winamac, for appellant. Ralph E. Horner, Robert E. Thompson, and John M. Spangler, all of Winamac, and Frank E. Gavin, of Indianapolis, for appel-paid his father the sum of $300, in gold, and lees. for the remaining 40 he paid $400, and, for 10 acres of timber land, in another section, MORRIS, J. Action by appellees to quiet he paid $10 per acre. The deed was recorded title to certain lands in Pulaski county. Ap-on the day of its execution. When the deed pellant filed a cross-complaint in which she claims an equitable title to portions of the land, based on an alleged constructive trust, and seeks recovery of possession thereof. Appellees answered the cross-complaint with a general denial, and pleas of the 15 and 20 year limitation statutes. Sections 295, 296, Burns 1914. was made the father had no knowledge of the facts concerning the clerk's defalcations, but believed the statements, in reference thereto, made by Albert. John's liability on the bond was subsequently discharged in 1863 by the payment of $90. After the execution of the deed of July 8, 1861, John Davenport continued in the possession and control of the land conveyed to Albert. In March, 1862, Albert, with his father's approval, sold and conveyed for $400, to one Parnell 100 acres of the land conveyed by the deed of July 8, 1861, and in 1864 conveyed 2 acres thereof to one Myers. In October, 1865, Albert reconveyed to his father all the land described in the deed of 1861, excepting 270 acres. The exception included the 120-acre homestead of Albert, and 40 acres adjoining, in section 1, town The land in question was originally owned by John Davenport, who had three children, Albert and Charles Davenport and Ruth Gundrum, all of whom are dead. Appellant is the daughter and only heir of Ruth Gundrum, while appellees are the children and grandchildren of Charles, and claim title as devisees of Albert. The court found the facts specially, and stated its conclusions of law, in favor of appellees, on the issues formed on the complaint and cross-complaint. Appellant excepted to each conclusion. ship 30, range 2; also the land conveyed, in Judgment for appellees, quieting their title. Appellant's motion for a venire de novo and new trial were each overruled, Error is assigned on the conclusions of law, and rulings on the motions. We here set out the i On April 14, 1879, John executed a deed to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the meanwhile, to third parties. The deed also conveyed to John 10 acres, not included in the deed of July 8, 1861. The wife of John died in 1874. Albert for 130 acres here claimed by appellant, located in sections 2 and 11, township 30, range 2. The deed was recorded, but Albert never claimed title under such deed. On April 14, 1879, John conveyed to Ruth by deed the S. E. 1⁄4 of N. E. 1⁄4 and the N. E. 4 of the S. E. 4 of section 2, township 30, range 2. The description in the deed contained a repetition of the description of the N. E. 4 of the S. E. 4. The land described in Ruth's deed is not in controversy here. On January 28, 1869, John Davenport executed his will, by which he bequeathed to his sons Albert and Charles legacies of $300 each, and devised to a foster child 59 acres of land not here in controversy. The remainder of the estate was devised and bequeathed to the daughter Ruth. John died October 6, 1879, and his will was probated three days later. Findings numbered 13, 14, and 15, on which appellant specially relies, are as follows: as follows: The southeast quarter of the northeast quarter, and the northeast quarter of the southeast of section two (2), township No. thirty (30) north, range two (2) west, containing eighty acres more or less, and the northeast quarter of the southeast quarter of section No. two (2), township No. thirty (30) north, range No. two (2) west, containing forty acres more or less. "John Davenport was then about seventynine years of age, growing weak in body and mind, and easily influenced by his son, Albert Davenport. Albert Davenport pretended to his father that he was not able to take care of said real estate, and was in danger of losing it, and that he would take care of it for his father, if he would place the legal title in him, the said Albert Davenport, and that he would convey the same to Ruth Gundrum, upon his father's death pursuant to his father's will. At the time of the execution of these two deeds Albert Davenport knew that by the terms of his father's will Ruth Gundrum was the residuary legatee, and that at his father's death the real estate described in both these deeds would go to Ruth Gundrum, and that his father so intended, and that the deed to Ruth Gundrum contained an erroneous description, and that it was his father's wish that his daughter, Ruth Gundrum, should have the southeast quarter of the southeast quarter of section two (2) west, which was a "Thirteenth. That said Ruth Gundrum was a part of the old homestead, and yet he (Albert person of mature years and of sound mind, and Davenport) caused said forty-acre tract to be she and her brothers Albert Davenport and described in his deed to himself and permitted Charles L. Davenport met at the home of said the deed to Ruth Gundrum to be so erroneousAlbert on the 13th day of October, 1879, for the ly drafted as to create the impression that it purpose of talking over their respective inter- conveyed 120 acres, including the old homeests and rights in the estate of John Davenport, stead forty, said southeast quarter of the souththey being his only heirs, at which time the said east quarter of said section two (2) on which Ruth Gundrum executed a warranty deed to was situated the orchard and cellar, while in Albert Davenport, the said Charles L. Daven- fact another forty-acre tract was described port joining therein for the southeast quarter of twice. John Davenport from the date of these the southeast quarter of section two (2), town- two deeds of conveyance, April 14, 1879, to his ship thirty (30) north, range two (2) west; death continued to retain absolute possession, the north half of the northeast quarter, ten (10) control, and dominion of the real estate conveyacres off of the north side of the southeast quar- ed, and on September 13, 1879, twenty-three ter of the northeast quarter of section eleven days before his death, he conveyed by warranty (11), township thirty (30) north, range two (2) deed to Monroe township, for school purposes, a west, containing one hundred and thirty (130) part of the north half of the northeast quarter acres more or less, which deed is recorded in of said section eleven (11), township thirty (30) Deed Record 28, at page 349, of Pulaski county, north, range two (2) west, being a part of the Indiana. That Ruth Gundrum, together with lands described in said deed to Albert DavenAlbert Davenport, at the same time executed to port. Albert Davenport himself never assertCharles L. Davenport, a deed to the southeasted title to these lands by virtue of this deed of quarter of the northeast quarter of section two his father to him, neither in the lifetime of his (2), township thirty (30) north, range two (2) father nor afterwards. Immediately after his west, in Pulaski county, Indiana, and Albert father's death, Albert Davenport recognized and Davenport and Charles L. Davenport executed acknowledged Ruth Gundrum's superior right their warranty deed to Ruth Gundrum for the and title to these lands by virtue of their fanortheast quarter of the southeast quarter of ther's will and sought and attempted to procure section two (2), township thirty (30) north, range title to them by the means set out and described two (2) west, which deed was never recorded. in the last preceding finding. Each of which deeds was acknowledged by the respective grantors. Which last described deed is and has been in the possession of the crosscomplainant. "Fifteenth. That a very few days after the recording of the two deeds, April 14, 1879, described in the last preceding finding, Ruth Gundrum was informed of the fact, and learned of their execution and of their contents for the first time, and immediately sent for her brother Albert Davenport. He came, and stated to her, after a half hour's stay, among other things that he would make it all right.' Ruth Gundrum lived in the homestead across the highway from Albert Davenport until her death and he maintained friendly, intimate, and confidential relations with her. That the Ruth referred to in these findings was Ruth Gundrum, and the Mrs. Terry referred to in these findings is the cross-complainant, Mary E. Terry." "Fourteenth. That on the 15th and 16th days of October, 1879, ten days after John Davenport's death, there were recorded in the recorder's office of Pulaski county, Indiana, two warranty deeds purporting to have been executed by John Davenport on the 14th day of April, 1879, which was six months before his death. By one of these deeds, John Davenport conveys to Albert Davenport the same real estate as that described in the deed procured from Ruth Gundrum as set out in the last preceding finding, to wit: The southeast quarter of section two (2); ten acres off of the north side of the southeast quarter of the northeast quarter, and the north half of the northeast quarter of section eleven (11), all in township thirty (30) north, range two (2) west, Pulaski county, Indiana. The second deed of that date, April 14, 1879, conveys to Ruth Gundrum certain low. real estate described in the language of the deed, them died, and its heirs were substituted. Albert Davenport died testate in 1906, and by his will, duly probated, devised all his real estate to the four children of his brother Charles. These children were plaintiffs beWhile the suit was pending, one of 1861. Ruth Gundrum died intestate in 1888, and 15 acres in section 11, owned by John in appellant is her only heir. Appellant lived with her mother at the John Davenport residence, a mile north of Winamac, until 1872, when she married, and has since resided at Winamac. She did not discover the facts set out in findings until March, 1906. This action was commenced in 1909. [1-4] Did the court err in its conclusions of law? Appellant's theory is that a constructive trust is shown by the facts found. A constructive trust is an implied one. differs from a resulting trust, also implied, in lacking the element of an intention to It The concluding clause in the eighth finding create a trust. 39 Cyc. 27. A constructive is as follows: "That neither John Davenport nor Ruth Gundrum discovered or knew of the fraud in these findings stated while they lived and neither of them knew that Albert Davenport did not intend to execute said trusts in compliance with their terms." trust arises by operation of law, regardless of any intention to create it, and frequently contrary to the intention of the parties. It has its roots in fraud, actual or constructive, which constitutes an essential ingredient. Wright v. Moody (1888) 116 Ind. 176, 18 N. E. 60S; Alexander v. Spaulding (1903) 160 Ind. 176, 181, 66 N. E. 694, and authorfrom all questions of laches, statutes of limitations, and title by adverse possession for more than 20 years, the ultimate fact of fraud on the part of Albert Davenport is not revealed in the findings, and we are constrained to adopt that view. It is true that the findings contain evidentiary facts, from which the trial court might have inferred Finding 25, relating to the 120-acre homestead occupied by Albert, is as follows: "That said Albert Davenport under said deed ities cited. Appellees contend that aside of John Davenport, dated July 8, 1861, took possession of said north half of the southwest quarter of section one (1), and the southeast quarter of the southwest quarter of section one (1), township thirty (30) north, range two (2) west, about the year 1865, and has ever since remained in the open, notorious, exclusive, adverse possession of said real estate, as against John Davenport, Ruth Gundrum, and the crosscomplainant or any person claiming adversely under or through them, claiming to own same, the ultimate fact of fraud, but such inference fenced and ditched, farmed the tillable part thereof, paid taxes thereon from the year 1862 until the date of his death, which occurred February 10, 1906. That the plaintiffs herein and cross-defendants John A. Davenport, Lincoln H. Davenport, Jesse C. Davenport, and Laura D. Correll, devisees of said Albert Davenport since the death of said Albert Davenport, have been continuously, and are now in the open, notorious, exclusive, adverse possession of said real estate claiming to own the same, as against said John Davenport, Ruth Gundrum, Mary E. Terry, or any person claiming adversely under or through them." The twenty-sixth finding relates to the other lands claimed by appellant, located in sections 2 and 11, township 30, range 2, and states that, after the execution of the deed from Ruth and Charles to him on October 13, 1879, Albert "took possession" of the lands, and "remained in the open, notorious, exclusive, and adverse possession of" them until his death; that in the meantime he fenced and farmed the tillable parts of the lands, built a house and barn thereon, cut and removed timber therefrom, defended a proceeding for a highway through the land, and paid taxes thereon from 1880 to the time of his death; that since then appellees have exercised like possession. Albert Davenport lived in a residence situated on N. W. 4 of S. W. 4 of section 1, township 30, range 2, from 1863 to the time of his death. This residence was separated from that of his father by a north and south highway leading to Winamac, a mile distant south. Albert and appellees have paid taxes on the land in question in an amount above $3,000. There is no finding as to the value of the land at any period. The land described in appellant's cross-complaint includes the 120 acres in section 1, occupied by Albert as a homestead, and the land described in John's deed to Ruth of April 14, 1879, and belongs exclusively to the domain of the trial court which may not be invaded by an appellate tribunal. If merely evidentiary facts do appear in a finding, they must be disregarded in considering the question of the proper conclusion of law on the ultimate facts found. Horn v. Lupton (1914) 182 Ind. 355, 105 N. E. 237, 106 N. E. 708; Knight v. Kerfoot (1915) 110 N. E. 206; Coffinberry v. McClellan, 164 Ind. 139, 73 N. E. 97. The existence of fraud, actual or constructive, as an ultimate fact, was necessary to appellant's right of recovery on her cross-complaint. The lack of such finding here is not supplied by findings of badges of fraud, fiduciary relations, or other mere evidences or rebuttable presumptions of fraud. Farmers' Loan, etc., Co. v. Canada, 127 Ind. 250, 269, 26 N. E. 784, 11 L. R. A. 740, and authorities cited; Alberts v. Baker (1899) 21 Ind. App. 373, 52 N. E. 469. The findings contain some apparent contradictions, caused, probably, by the attempt of the trial judge to utilize as much as possible of the findings prepared for him by counsel of the opposing parties. Our attention is especially directed to the concluding clause of finding 18, heretofore quoted. This clause probably relates to the deed executed April 14, 1879, by John to Albert. The court, however, in express terms, finds that Albert never claimed title under such deed. any event, even if the trial court was of the opinion that it had found actionable fraud as an ultimate fact, the findings do not reveal it, and appellant's counsel concede this in one of their points in support of their motion for a venire de novo where they say: "It will be observed that fraud and concealment are not found in the findings as ulti In mate facts." The trial court did not err in | Were it of such character, it could not be its conclusions of law on the facts found. impressed on land, because in parol. Section [5] Appellant's counsel earnestly contend 4012, Burns 1914. The suit is not to enforce that the court erred in overruling the motion the parol promise of Albert, made in 1861, to for a venire de novo. It is claimed that the reconvey to his father, or to enforce the alfindings are so defective as to preclude sup-leged parol promise to convey to Ruth at port of a judgment, and that, while stating John's death. Were such theory relied on evidentiary rather than ultimate facts, such the statute would forbid remedy because the evidentiary ones establish the ultimate fact promise was not in writing. The cross-comof fraud. Knight v. Kerfoot, supra; Max-plaint seeks the declaration and enforcement well v. Wright, 160 Ind. 518, 67 N. E. 267. of a constructive trust-a species of implied It will be noted that it is expressly found trust-based on the fraud of Albert, of which in finding No. 25 that in 1865 Albert took the false promises to reconvey to John and possession of the 120-acre tract used by him to convey to Ruth formed constituent eleas a homestead, and thereafter until his ments. The relief granted in constructive death remained in the open, notorious, ex-trust cases is not measured by the fraudulent clusive possession thereof as against John promises of the wrongdoer, but on the other Davenport, Ruth Gundrum, appellant and any other person, and fenced, ditched, and cultivated it, and that after his death appellees have held like possession. Finding 26 shows that after the execution of Ruth Gundrum's deed on October 13, 1879, which purported to convey all the remaining land in controversy except 15 acres, Albert took possession of all of said remaining land, and claimed and exercised the same possessory rights as he did in the 120acre tract, and that after his death appellees held like possession. Assuming that the findings show evidentiary facts requiring the inference of fraud that would furnish a basis for a constructive trust, it is apparent that there is an entire absence of a finding of any evidentiary fact that Albert was guilty of concealing from Ruth Gundrum or appellant any cause of action based on his fraud. hand may be contrary thereto. Where the basis of the constructive trust-fraud-is shown, relief is administered in consonance with equity rules. Orth v. Orth, 145 Ind. 184, 200, 201, 42 N. E. 277, 44 N. E. 17, 32 L. R. A. 298, 57 Am. St. Rep. 185, and authorities cited; 4 Words and Phrases, 3436; Perry on Trusts, § 73; Pomeroy, Eq. Jur. §§ 1055, 1056; Long v. Mechem, 142 Ala. 405, 38 South. 262; Henderson v. Murray, 108 Minn. 76, 121 N. W. 214, 133 Am. St. Rep. 412; Brown on Statute of Frauds, § 184; Aherns v. Jones, 169 N. Y. 555, 62 N. E. 666, 88 Am. St. Rep. 620. [10-13] It is provided by section 302, Burns 1914, that, where a person liable to an action conceals the fact from the knowledge of the person entitled thereto, the action may be commenced within the limitation period after the discovery of the cause. It is appellant's theory that, since she discovered her Appellees claim that on the facts exhibit- cause of action but shortly before suit was ed in the finding appellant's cause of action brought, the same is not barred. On the iswas barred by our statutes of limitation. Ap- sue of concealment the burden was on appelpellant seeks to meet this contention by aslant. Lemster v. Warner (1894) 137 Ind. 79, serting that statutes of limitation do not run 36 N. E. 900; Carver v. Carver, 97 Ind. 497, against suits of purely equitable cognizance, 512; 25 Cyc. 1427. Such concealment must or express trusts, nor in any case do they consist of more than mere silence or general commence to run where the complainant was declarations. There must have been some ignorant of the facts if they were concealed trick or artifice to prevent a discovery, or by the respondent. Section 302, Burns 1914. some material fact concealed by positive or [6] Since the adoption of the Civil Code in affirmative act or deed. Jackson v. Jackson, 1852, there has been but one form of action 149 Ind. 238, 242, 243, 47 N. E. 963, and aufor the enforcement of private rights, and thorities cited. No fact, ultimate or evidendistinctions between actions at law and suits tiary, is stated in the findings, showing conin equity have been abolished. 2 R. S. 1852, cealment within the intent of section 302, p. 27; section 249, Burns 1914. Generally it Burns 1914, supra. Statutes of limitation may be said that since the abolition of sep- are applicable to constructive trusts, and aparate chancery forums and forms, statutes of pellant's cause was barred before Albert Dalimitation apply alike to suits formerly cog- venport's death. Churchman v. City of Innizable, at law or in equity. Cassell v. Low-dianapolis, 110 Ind. 260, 11 N. E. 301; Parks ry, 164 Ind. 1, 4, 72 N. E. 640; Hatfield v. v. Satterthwaite, 132 Ind. 411, 32 N. E. 82; Jackson, 50 Ind. 507; Pilcher v. Flinn, 30 Ind. 202; Potter v. Smith, 36 Ind. 231. [7-9] It is true that statutes of limitation do not commence to run in cases of express continuing trusts, until repudiation thereof, because the possession of the trustee is presumed to be that of the beneficiary. Wood on Limitations, § 200. But the trust pleaded in appellant's cross-complaint is not express. 39 Cyc. 607; 25 Cyc. 1155; Angell on Limitations, §§ 469, 471; Bickford v. Wade, 17 Vesey, 87; Newman v. Newman, 60 W. Va. 371, 55 S. E. 377, 7 L. R. A. (N. S.) 370. [14, 15] Appellant further contends that if it be conceded that the statute of limitations bars relief on the cross-complaint, appellees were nevertheless without remedy on their complaint to quiet title, because of the find |