52 Mo. 581 | Mo. | 1873
delivered the opinion of the court.
This was an action in the nature of a bill in equity, to declare and enforce a trust in a judgment obtained by the defendant against one Francis Watkins, on the ground that the judgment obtained by the administratrix, was based upon a judgment obtained by the intestate, and that judgment was founded upon a note indorsed or assigned to the intestate for collection merely, and not for any consideration whatever. The note re
The indorsement on its face appeared to be for value received. The intestate brought suit in his own name on this note so indorsed to him, and recovered a judgment thereon January 6,1857, for $1,145, and costs. The intestate died in 1863, and defendant became his administratrix, and, according to the statute, gave due notice of her letters of administration .
The judgment so recovered by the intestate was not inventoried by the administratrix. But in 1869, she as administratrix instituted suit on that judgment against Watkins, in the St. Louis Circuit Court, and on March 20, 1871, recovered a judgment thereon against Watkins for $2,131.11, and costs.
The plaintiff after his removal to California remained absent from the State from 1855, to March 1871. The defendant set up the statute of limitations of ten years, five years, and the limitation law of three years under the administration law of 1855.
Judgment at Special Term was rendered in favor of the defendant, which on appeal to General Term was affirmed, and the plaintiff has appealed to this Court. It is evident from this record, that the main point is, whether the plaintiff was barred by the statute of limitations. It may be conceded, that the facts of the case constituted the intestate a trustee of the original judgment recovered against Watkins. But this sort of trust is not an express or direct continuing trust, which exists as long as it is not denied, between trustee and cestui que trust. In an express technical trust the statute of limitations does not commence to run, till the trust is denied by some open act of the trustee. But in implied trusts, which grow out of the facts and circumstances of each case, the statute commences to run as soon as the party has a right to commence a suit to declare and enforce the trust. (See Keeton’s heirs vs. Keeton’s admr., 20 Mo., 530.) The case under review
This administration was taken out, and the letters published, more than three years before this suit was instituted ; and therefore this demand was not only barred by the General statute, but by the administration law.
Let the Judgment be affirmed.