33 Ga. 435 | Ga. | 1863
Jenkins, J., delivering the opinion.
She does not make a case showing an illegal conversion of the negro. We must presume then that this fund came legally and properly into the hands of the trustee, as a part of the trust estate. Another provision of the trust deed is, that the. proceeds of any sale of the trust property should “become a portion of the trust estate, and be subject to the
But are there no cases, in which equity will entertain a complaint, of a cestui que trust, based primarily upon just such a transaction? Had this complainant alleged, that the makers of the note had refused payment, that upon her solicitation the trustee had refused to institute suit for recovery of the fund, that the note would soon become barred by the statute of limitations, that the trustee was insolvent and unable to respond to any portion of the estate lost by his laches or collusion — and finally charging fraud and collusion - between the trustee and the debtors, it will scarcely be maintained that such a bill would be demurrable. But that is not this case.
Again. Had it been alleged that the trustee had, since the making of the note, become insolvent, or having been previously insolvent, had since become profligate and wasteful, an unsafe depository of trust funds — that the complainant apprehended the payment of the money to him, and its loss to the trust estate, praying the removal of the- trustee, and appointment of another in his place, and that the debt
Allegations of some of the facts supposed above are wanting, but the difference is so small that we would hesitate on this ground to overrule the judgment and sustain the demurrer.
It is urged in behalf of plaintiff in error, that “time is no bar to an express trust.” We concede that time is no. bar to an express, continuing trust. But this doctrine regarded as settled law since the case of Kane and Bloodgood, 7 Johnson’s Chancery Reports, 90, is applied as between cestui que trust and trustee. So it will be found in McDonald vs. Sims et al., 3d Kelly, 383, the'Court held that in the marriage articles, which were the foundation of the after settlement, there was express provision made for the claim of McDonald, and that the trustee in that settlement took the property encumbered with a lien for the payment of that claim, which established in him an express trust. So in Thomas vs. Brinsfield, 7th Georgia, 154, the Court refused to disturb the bar of the statute because the trust was not express and conotinuing.
Again, it is insisted that a cestui que trust, feme covert, is
This is a case, in which the feme covert is seeking to enforce rights, under a simple contract, between her trustee and a stranger, authorized by the deed of trust, and which contract is actually barred by the statute of limitations, and no special equity is alleged, avoiding the bar. It is not her contract. She was incapable of contracting when it was made. She had a legal representative, appointed by herself, before she became covert, and in anticipation of coverture, authorized to make such contract. By him the contract was made, long subsequent to her covertufe, and against him the statute commenced running so soon as the contract matured. The bar was complete before she asserted her equity, and in its assertion, she alleges no fraud, no special circumstances modifying the action of the statute of limitations upon the legal contract.
It is said that if in this case there be a statutory bar at all, it is one applicable to sealed instruments, for that she is seeking to enforce the trust deed, and to this point again the case of Flynt-and wife is cited. As before remarked, complainant’s rights in that case were wholly involved in the trust deed, and were asserted against the trustee. Here the recovery is sought under and by virtue of a promissory note, against its makers only, and they are strangers to the trust deed. The trust deed is set out, and other allegations made only to show that complainant has a beneficial interest, an equity in the note, but if a recovery were had against Mason & Dibble, it could be only upon the note. Strike that, and the averments concerning it, from the bill, and all connection between them and the case ceasesv If the recovery against them could be only on the note, the statutory bar they set up must be applied to the note.
The following points were also presented:
“ Cestui que trust can follow the property in the hands of a purchaser, with notice of the trust. If trustee fail to do his duty, or violate his trust, and sell the property, both he
This is all good law, in its place, but has no application here. Mason & Dibble had no connection whatever with any sale, rightful or wrongful, of the negro. The trustee presented himself to them with a certain fund which he said, belonged to the trust estate, and which complainant now says belonged to it. As such, they borrowed it, giving a promissory note, payable to the trustee. We have said that, according to the allegations in the bill, that was a legal transaction, in no way violative of the trust. Upon that simple contract, then, rests their liability. If that be barred by the statute, without any erroneous practice on their part, their liability is at an end. No constructive trust is raised by the bill between complainant and Mason & Dibble; there is certainly no express trust.
The statute of limitations runs, as between cestui que trust and trustee on the one hand, and strangers on the other. Hill on Trustees, 736 and 738. That is this case, and on this special demurrer we reverse the judgment of the Court below. Let the judgment be reversed. *