Davis v. . Boyden

Faircloth, C. J.: John A. Boyden, with sureties, executed his note, not under seal, to .the plaintiff’s intestate in 1884, and the last payment was on May 8, 1891, and this action was commenced November 8, 1895. On January 25, 1892, the said John A. Boyden made an assignment for the benefit of creditors, including the plaintiff’s claim, and the defendant Henderson is now the trustee and has taken no steps to close his trust. The defendant Boyden pleaded the Statute of Limitations, the trustee not filing or relying on such plea. The effect of the Statute pleaded is the only question. The plea is a bar to the plaintiff’s action and protects the defendant Boyden. It is urged that as the principal debtor is discharged by the Statute, therefore, the plaintiff cannot recover of the trustee. That is a mistake. The assignment established an express trust in favor of the creditors, and as the trust has not been closed that relation still exists. It is very well settled that the Statute will not bar the cesíwi que trust pending that relation: It is only where the fiduciary character of the trustee has ceased', as by repudiating the creditor’s rights, or by claiming the absolute ownership, or by refusing to account for the property, that the Statute will operate, that is, when the trustee assumes an adversary character towards the beneficial owners. Patterson v. Lilly, 90 N. C., 87; Angel on Limitation, 468, 176, approved in numerous other cases. No reason appears why the trust is not closed, nor *285 why no order was made, declaring the rights of the plaintiff against the trustee. The plaintiff is entitled to have the trust closed and to a judgment against the trustee for his proportion of the trust fund. Remanded for proceedings according to this opinion.