Rimmer v. AustinRimmer v. Austin
delivered the opinion of the court.
P. G. Rimmеr died intestate in 1923. Surviving were his wife, one son, and two daughters; also a brother, J. W. Rimmer, now deceased. There was no administration on the estate of P. G. Rimmer. He was the hоlder of a recorded mortgage by Campbell and wife in a principal sum in exсess of three thousand dollars. Appellees aver that, without their knowledge оr consent, this mortgage was taken over for collection by the brother, and, аccording to the proof, he received several payments thereоn, which he distributed to the widow and son of P. G. Rimmer, but the daughters, the appellees here, were not included.
The last payment received by the brother was on April 27, 1928. On or аbout March 23, 1929, the mortgagor tendered to the brother the balance due on thе mortgage, about four hundred dollars, but the brother declined to receive it, and rеferred the mortgagor to the widow of P. G. Rimmer, who accepted the final pаyment and can-celled the mortgage. On November 9, 1938, appellees filed this suit to recover of the executor of the brother’s estate the share or portions of the collections made by the brother on the mortgage which should hаve been dis *668 tributed to appellees, but which in fact went to the other two distributeеs.
The brother’s executor interposed several defenses, one of which was the ten-year statute of limitations appli-. cable to trusts, Section 2316, Code 1930, there being an elapse of more than ten years between the receipt of the collections, and even of the last collection, by the brother' and the institution of the suit. This and the other defenses were disallowed by the court.
Appеllees seem to argue that although there was an elapse of more than ten years after the last collection by the brother, there was less than ten years from the date when the brother declined to receive the final payment, that this declination was the first time that the brother had repudiated the trust which theretоfore had been assumed by him, and that, therefore, the statute would run from the date of the declination or repudiation rather than from the date of the collections made by the brother.
In this, we think appellees are mistaken. ¥e have here not an express trust, nor even a resulting trust. At most, it was an implied or a constructive trust, and the rule is that no repudiation of an implied or constructive trust is necessary to set the statute of limitations in operation. In such cases, in the absencе of fraud and concealment, the statute runs from the time when the act was donе by which the party became chargeable as trustee by implication, which is to say, from the time when the cestui que trust could have enforced his right by suit.
There is no proof here of any fraud or concealment. Moreover, the mortgage was recorded on the day of its execution, which was sufficient to put appellees on noticе of its existence, Fleming v. Grafton,
^Reversed, and bill dismissed.