11 Ga. 258 | Ga. | 1852
By the Court.
delivering the opinion.
The bill of sale, offered in evidence, was made by Sally Whit-worth, to Mrs. Prosser while she was a widow, and before her intermarriage with Willis S. Scott, which conveyed the boy Harry to her. Now, Scott, the administrator, says, in his answer to the bill filed by Haddock and wife (the latter of whom is one of the orphans of John Prosser) for her share of the slave, Harry, and his hire, that it is true Willis S. Scott did return the slave, Harry, to the Court of Ordinary as the property of the orphans, for the purpose, and with the design, ofpreventing the slave, Harry, from being seized and sold under ex-
The instruction asked of the Court below to the Jury, by the counsel for the administrator, assumes the position, that the Statute of Limitations commenced running in favor of the in-. testate, from the time of filing his answer to the first bill, in July, 1839, at which time he claimed the slave, Harry, as his. own property and denied the title of his cestui que trust; that the
The instruction asked, the Court refused to give to the Jury; but instructed them “ that the right of action did not accrue until Willis S. Scott asserted a right to the property, and gave complainants notice of the same ; and that if Mrs. Haddock was then a married woman, and of full age, the defendant is not protected by the Statute of Limitations.” In view of the tacts of this case, there was no error in the Court below, in refusing the instructions asked, or in that which was given to the Jury.
The possession by Scott of the slave, Harry, wás consistent with the title of his cestui que trust, until July, 1839, when he repudiated the trust, and claimed to hold the property as his own, adverse to their title. The Statute then did not commence to run, according to the general rule, in favor of the intestate, until July, 1839, when he repudiated the trust. Mrs. Haddock was an infant at the time of her marriage, and continued a feme covert, until the repudiation of the trust by the trustee, in 1839.
The case of Keaton vs. Greenwood, (8 Ga. Rep. 97,) is cited by the plaintiff in error, as an authority in his favor. The general principles settled in that case, in regard to the application of the Statute of Limitations to trustees and cestui .que trusts, we now re-affirm, as we did in Morgan vs. Morgan, 10 Ga. Rep. 297.
We do not, however, hold with the Court below in its charge