112 Ga. 660 | Ga. | 1901
Peter Cannon brought suit against Mary F. Lynch, in a justice’s court in Fulton county, upon an account for $42.79, the amount of a distributive share of the estate of Patrick Cannon, deceased, father of the plaintiff, which was received by the defend
We think it very clear that this claim was barred by the statute of limitations. Counsel for plaintiff in error seeks to avoid the statute upon the theory that the defendant below held the money in dispute in trust for the plaintiff, who was the real owner; but the record, instead of indicating any trust relation between the parties, shows that, she held adversely to him. She received it from the administrator of the estate of Patrick Cannon as her distributive share of that estate, and did not receive it as the share of Peter Cannon. She took and held it, not as the plaintiff’s money or as belonging to his estate, but under an order which declared that the, plaintiff had no interest in it. This declaration, it is true, was an error and not binding, but we think it proper to consider it in order ,to determine whether the defendant took and held the fund in question adversely or as recognizing a trust. We think, therefore, that the court below was right in deciding that, as the plaintiff took the fund adversely, and not in recognition of any existing, valid trust, the action was barred after the lapse of four years.
Judgment affirmed.