66 So. 332 | Miss. | 1914
delivered the opinion.of the court.
This bill, which was filed in the court below on the 6th day of February, 1912, alleges that on the 3d day of April, 1866, John W. Burnett executed and delivered to George W. Norris his promissory note for the sum of twelve thousand eight hundred' and thirty dollars, and in order to secure the payment thereof executed and delivered to Norris a mortgage on certain land, describing it, situated in the first district of Hinds county, Mississippi, which
.“(1) That a commissioner be appointed to compute and state the amount due on the indebtedness named in the mortgage which John W. Burnett executed to Geo. W. Norris, on or about the 3d day of April, A. D. 1866, with legal interest down to date, one-half to go to complainants.
“ (2) That said commissioner compute and state, also, the amount of money which the said J. W. Burnett owes to the complainants in this cause on a final settlement of his accounts as the administrator of the estate of Geo. W. Norris, deceased, one-half to go to complainants.
“ (3) That your honor will order, adjudge, and decree that'the following land, described in said mortgage which was executed on the 3d day of April, 1866, by John W. Burnett to Geo. W. Norris, be sold as the law directs to*415 pay the amount due under the same as found by the commissioner in this cause, to wit (describing it).”
An inventory and one annual account filed by John W. Burnett on July 23, 1874, as administrator of the estate of George W. Norris, were filed as exhibits to this bill, but in neither of them did he charge himself with the note alleged in the bill to be due by him to Norris. A demurrer was interposed to this bill, one of the grounds of which is the laches on the part of Louis G. Norris, through whom appellants claim. This demurrer was sustained, and an appeal granted to settle the principles of the case.
The facts of this case bring it squarely within the rule announced in Comans v. Tapley, 101 Miss. 203, 57 So. 567, Ann. Cas. 1914B, 307. The long and unexplained delay in instituting this suit, coupled with the present situation of the parties thereto, render it inequitable for the court to grant the relief prayed for. All of the parties to the transactions here complained of are now dead, and it will be practically impossible for the court to determine whether or not the note alleged to have been executed by Burnett to George "W. Norris was in fact ever paid. Louis G. Norris’ long inaction strongly indicates that he did not claim that his grandfather was accountable to him for the note alleged to have been executed to his father. For aught the court can now ascertain, that matter may have been amicably adjusted long prior to Louis’ death.
In Cooper v. Cooper, 61 Miss. 694, this court, after holding that until an executor has been “discharged from any further accounting, the beneficiaries have the right to consider the trust an active one, and mere delay' on the part of the trustee in settling with the court, and through it with the beneficiaries, and obtaining his discharge, cannot be considered such a breach of the trust as to set the statute in motion in his favor,” use the following language:
*416 “Nevertheless, we are not to be understood as saying that there may not be cases in which, after an actual suspension of the trust, there has been such long acquiescence or delay on the part of the cestui que trust as to require the court to deny him relief upon the ground of laches.”
And the rule is, as stated by the author of the note to Salmon v. Wynn, 15 Ann. Cas. 483, that:
“Whenever an action is brought in equity to compel a personal representative to render an account of the funds of the estate, the court will, irrespective of any statute of limitations, take into consideration the lapse of time in determining whether the complainant is entitled to equitable relief. And the court will refuse to order an accounting if the complainant has been guilty of such laches as to indicate bad faith or to render it impossible or extremely difficult for the court to do justice between the parties.”
Affirmed and remanded.