56 Miss. 346 | Miss. | 1879
delivered the opinion of the court.
It is the settled doctrine of this court that the contracts of a guardian, or other trustee, bind himself personally, and do not so bind the estate he represents as to subject it to an action.
The circumstances under which one dealing with such a trustee may resort to the trust estate are indicated in the cases of Woods v. Ridley, 27 Miss. 119; Short, Admr., v. Porter, 44 Miss. 533; Clopton v. Gholson, 53 Miss. 466; Norton et al. v. Phelps, 54 Miss. 467. These illustrate two classes of cases, — the two former belonging to one, and the other two to another. The case under consideration, as set forth in the first three counts of the declaration, presents facts which entitle it to be assigned to the first-mentioned class, — i.e., where a recoveiy is sought because the money of the party seeking the recovery was applied to the payment of valid claims against the estate from which the recovery is sought. In such cases, the person whose money has discharged claims against the trust estate, which it was bound to pay, is substituted to the rights of the holders of such claims, before their payment, in order to effect justice. But it is only in a court of chancery that this just doctrine has yet found a home.
The first three counts of the declaration are not maintain■able. They seek a recovery against the lunatic because of the receipt of money of the plaintiff by the guardian of the lunatic, and its application to the payment of valid debts of the lunatic, contracted before his lunacy. An action at law can be maintained only upon a contract, express or. implied, of the
No promise of the guardian could render the lunatic liable to an action. He would bind himself alone by such promise. Dalton v. Jones, 51 Miss. 585; Thatcher v. Dinsmore, 5 Mass. 299. If the express promise in writing of the guardian, as such, would not have bound the lunatic, nor entitled the promisee to maintain an action against the lunatic, how can it be said that his receipt and use of the money for 'the lunatic gives an action? Manifestly, it is not on the receipt of the money by the guardian that the right of action in the first three counts is based, but on his subsequent application of it to the debts of the lunatic. In other words, it is not upon contract, express or implied, that the action rests, but on the equitable principle of substitution, to avail of which resort must be had to a court of chancery, the party having no rights in this action at law, except as arising from a contract, express or implied, which is not disclosed by the first four counts of his declaration.
The fourth count depends for its sufficiency on the receipt of the money by the guardian, without an application of it to the use and benefit of the lunatic. It follows, from what has been written above, fhat this count is insufficient.
The counsel for the plaintiff in error claims that the case of Shacklett v. Polk, 51 Miss. 378, is an authoritative precedent for maintaining the first three counts. In that case it was announced, as it has been in several other cases, that while a married woman has not power to borrow money, yet, if‘ money loaned to her is used by her for any of the purposes for which she has legal capacity to contract, a recovery may be had to the extent of such.use, because to that extent she has capacity to contract. Her contract is thus sustained to the extent that she had power to make it. But the lunatic had no power to contract, and hence an action upon contract is not maintainable against him.
The fifth count of the declaration has been abandoned.
It is urged that this count is barred by the Statute of Limitations. We cannot express an opinion as to this, because the bar of the Statute of Limitations cannot be availed of by a demurrer to the declaration, even though the cause of action set forth may appear to be barred. The Statute of Limitations must be pleaded, so that the plaintiff may, if he can, avoid the bar by replying facts which prevent it.
The sixth count being good on demurrer, and the demurrer being to the whole declaration, the judgment sustaining it must be reversed, and the cause remanded for further proceedings in accordance with this opinion and the law.
