1 Georgia Decisions 109 | Coweta Cty. Super. Ct. | 1842
Upon the trial, most of the material allegations in the bill were sup" ported by testimony: there was some conflict however between the testimony of complainants and defendants, with regard to the identity of the money with which Buckley paid for the land which he exchanged for Jinny and her children. The Jury found a verdict in favour of complainants, for the sum of seven thousand dollars, to be discharged by the delivery of the negroes, and also for the sum of #2557, as hire.
The defendant’s counsel moved for a new trial, on the following grounds;
2nd. Because the Court charged the Jury, that the statute of limitations did not commence running against the complainants, in favour of defendants, until the death of Buckley, which took place 15th July, 15:51.
3rd. Because the Court charged the Jury, that the statute of limitations did not commence running against the complainants, in fa-vour of defendants, until the time of the probate of the will of Buckley, by defendants.
4th. Because the Jury have returned a verdict in favor of Joseph Frost and wife, who have been made parties by amendment, who claim to be entitled to one-fifth of the property in controversy, without there being any evidence going to shew he had commenced any suit for his share of said property, against the defendants, until after the expiration of four years from the time of the probate of the will of said Buckley, so as to take the case out of the statute of limitations as to him.
5th. Because the defendants are sued by complainants as (be ex. ecutors of Hiram Buckley, deceased, and required to account for property held and possessed in their representative capacity, and the Jury have refused to allow them credit for their disbursements as rendered in their answer, which disbursements had been allowed' and sanctioned by the Court of Ordinary of De Kalb County, and wore not contradicted by any testimony.
6th. Because the Jury found contrary to Law and evidence.
These grounds will be considered in their order. As to the first, it is true that a motion was made at the trial, by defendants’ counsel,
As to the second ground, the Court will remark, that it has been furnished by both of defendants’ counsel with very able written arguments, in one of which the counsel has bestoived much labour on this branch of the case, for the purpose of establishing the position that Buckley did not have a life estate in the negro woman Jinny and her children, and that complainants could have commenced ail action at Common Law against Buckley, for the recovery of the four hundred dollars, for his breach of trust, in not applying it m the manner directed, immediately upon their coming of age, and that having the right to sue for the four hundred dollars, and having failed to do so, their right to sue for the property purchased with the money was barred by the statute of limitations.
The counsel remarks in his argument, “ that if the position assumed by the Court be true, that Buckley had a life estate in Jinny and her increase, and that the Martin children were seized of the property, as remainder men according to the rules of Law creating estates in remainder, then we admit, the statute did not commence running until the death of Buckley.” Let us then examine this question. An estate in remainder is defined to be “ an estate limited to take effect and be enjoyed after another estate is determined.”— 2nd Blk. Com. 164. There then must be a particular estate to support the estate in remainder, the remainder must commence or pass out of the grantor at the time of the creation of the particu
The counsel asks “ from whom, or by whom, has such an estate been created by Jinny and her increase in the Martin children ? What grantor has conveyed Jinny and her increase to Buckley and wife during their lives, with remainder in fee to the Marlin children 7 From what legal premises does the Court arrive at the conclusion (hat Buckley had a life estate only in Jinny and her increase ?*’ The Court will endeavor to answer these interrogatories. In the first place, it will be recollected that it is alleged in the bill, rvhich allegation is supported by proof, that in the year 1802, upon the intermarriage of Buckley with the widow Martin, John Langdon, the father of Mrs, Marlin, delivered to Buckley and wife, the negro woman Nance, which was to remain in their possession during the life of the survivor, at whose death said negro and increase, was to become the property of the Martin children, that said negro remained in the possession of Buckley and wife, until the year 1807, when she was returned to Langdon, who furnished said Buckley with $400 in lieu thereof, which was to be vested in another negro woman in the place and stead of Nance, that the $400 was vested in a tract of land, and that in 1812, the land was exchanged for the negro woman Jinny and her two children, and placed in the place and stead of the said negro woman Nance and her increase, and to follow the conditions and stipulations made and entered into in relation to her. Now, it is a principle both of Law and Equity, “ that whenever the property of a party has been wrongfully misapplied, or a trust fund has been wrongfully converted into another s’pecies of property, if its identity can be traced, it will be held in its new form liable to the rights of the original owner, or cestui que trust.” — 2d Story’s Equity 502-3. The general proposition both at Law and in Equity upon this subject, is, that if any property in its original state and form, is-converted with a trust in favour of the principal, no change of that state and form can divest it of such trust, or give the agent or trustee converting it, or those who represent him in right, (not being bona fide purchasers for a valuable consideration without notice) any more valid claim in respect to it, than they respectively had be
The third ground is: because the Court charged the Jury, that the statute of limitations did not commence running against the complainants, in favour of defendants, until the time of the probate of the will of Buckley by defendants. In order to determine whether the Court erred upon this point, it will become necessary to go into the examination of the various kinds of trusts, the nature of the trust estate which Buckley held, and the rights conferred upon his executors by reason of their having acquired such estate as executors. Trusts are first divided into express and implied trusts. “ Express trusts” (says Judge Story, 2 vol. 243) “are those which are created by the direct and positive acts of the parties, by some writing, or deed, or will,” and he defines implied trusts to be “those which are deducihle from the nature of the transaction as matter of clear intention, although not found in the words of the parties,” “or which are superinduced upon the transaction by operation of Law, as matter of Equity independent of the particular intention of the parties.” The latter of which, he says, comprehends all those trusts which are called constructive and resulting trusts. Trusts are again spoken of in many of the authorities as direct trusts, as contradistinguished from possible or eventual trusts. In Fonblanque’s Equity, I find this authority *. “ Direct trusts are such as are created and acknowledged by the act of the parties. Possible or eventual trusts occur where a party who took possession originally in his own right, and was prima
Fourth ground. Because the Jury have returned a verdict in fa-vour of Joseph Frost and wife, who have been made parties by an amendment, who claim to be entitled to one-fifth of the properly in controversy, without there being any evidence going to shew he had commenced any suit for his share of said property against the defendants, until after the expiration of four years from the time of the probate of the will of said Buckley, so as to take the case out of the statute of limitations as to him The position occupied by defendants’ counsel upon this ground is this, that the bill which was filed in the year 1835 by John L. Marlin, who states that he was the assignee of Frost and others, can not prevent the operation of the statute so far as Frost is concerned, because they say that on the trial Marlin could not shew an assignment of Frost’s interest, and therefore his interest cannot be considered as having been sued for, and that there was no action commenced as to him, or for his interest, until ho was made a party by an amendment to the bill filed in 1839. If this be true that this was no suit as to him, then, there being ho evidence to shew that any demand had ever been made for his interest, and it being necessary that there should be a demand made, to constitute the possession of defendants adverse according to the authorities already cited, it will be perceived, that the authorities relied on as to the third ground, are equally applicable to this — first, that it is a case in which there is no Common Law remedy, and therefore, being a case of trust, falling peculiarly and exclusively within the cognizance of a Court of Equity, the statute of limitations is no bar — secondly, that if it were a case in which the statute could be pleaded, (which can only be done where the Courts o f Law and Equity have concurrent jurisdiction,) that the statute has
The fifth ground is: Because defendants are sued by complainants as the executors of Hiram, Buckley, deceased, and required to account for property held and possessed in their representative capacity, and the Jury have refused to allow them credit for their disbursements as rendered in their answer, which disbursements had been allowed and sanctioned by the Court of Ordinary of De Kalb County, and were not contradicted by any testimony. As to this ground, it must be recollected, that the suit was not brought by the complainants as the legatees of Hiram Buckley, and do not therefore claim the property as belonging to his estate ; if so, there would be no doubt that the returns made by the defendants as executors of said estate, being uncontradicted, ought to be allowed ; but if complainants were entitled to the negroes as their own property immediately on the death of Buckley, they were also entitled to the hire of said negroes, after deducting therefrom the amount expended for the use and on account of said negroes; but there is no reason why the hire of said negroes should be applied to the payment of the debts of said Buckley, they should be paid out of the estate of Buckley proper. It will be found by reference to said returns, that the hire of the negroes, the subject of the suit, amounts to the sum of $3157, and the interest on the same amounts to the sum of #824, making together the sum of #3981, and the Jury found the sum of $2557 for hire, which leaves a balance of $1424 of the hire and interest which they did not find, the presumption is, that the Jury considered this amount sufficient to satisfy all the disbursements which had been made by said defendants, on account of said negroes, and this being a matter proper for the Jury to determine, and the allowance appearing to be sufficiently large, the Court cannot therefore disturb the verdict on this ground.
The sixth and last ground is : Because the Jury found contrary to Law and evidence. The Court has endeavoured to shew, that the verdict is not contrary to Law, and it was the peculiar province of the Jury to determine the facts to which the Law was applicable, and the evidence being conflicting as to some of the important facts of the case, the Court can not take upon itself to say that the ver-