Peal v. . Martin

BbogdeN, J. A commissioner is appointed in a civil action tried in the Superior Court to sell land and to pay a specified portion of the proceeds to the plaintiff in this action. The land is duly sold in May, 1923, and the commissioner received the money. The commissioner died on 25 June, 1930, and thereafter, in June, 1932, the plaintiff institutes this action against the administratrix of the commissioner to recover said sum of money, alleging that the commissioner had not paid the money as directed in the judgment, and that no report and account had been filed prior to the death of the commissioner. Upon such showing the trial judge nonsuited the case. The foregoing facts present two questions of law, to wit: 1. What is the legal relationship between a commissioner appointed by a court of equity to sell land and the parties to the suit ? 2. Is the cause of action alleged by the plaintiff barred by the three-year statute of limitations ? A commissioner appointed by a court of equity to sell land is empowered to do one specific act, viz., to sell the land and distribute the proceeds to the parties entitled thereto. He has no authority and can exercise no powers except such as may be necessary to execute the decree of the court. Immediately upon his appointment he ceases to be an attorney or agent for either party, but becomes in a certain sense an officer of the court for the specific purposes designated in the judgment. *109 The plaintiff asserts that Martin, deceased commissioner, was his attorney when the original suit was instituted, and that although he was appointed commissioner of the court to sell the land, this did not terminate the fiduciary relationship. This contention, however, cannot be maintained for the obvious reason that a commissioner must act in accordance with the orders of the court and not in accordance with the contract between, the parties. The relationship of a commissioner to the parties was first considered by this Court in Smith v. Moore, 79 N. C., 82. The -third headnote of that case is as follows: “It seems that there is no means known to our practice of holding a commissioner appointed to make a judicial sale pecuniarily responsible for the money collected by him, except by an action instituted by the parties entitled to such money.” The language of the decision upon which this headnote is based is: “He might be discharged from his office at any time by the court, without affecting the rights or the status of the parties in court. It is true he is liable to an attachment for disobedience or failure to do his duty, but this is a remedy in personam, merely. The court has no power to award judgment and execution against his property,” etc. The Smith case, supra, was cited with approval in Gilbert v. James, 86 N. C., 244, which holds that a party entitled to money in the hands of a commissioner can maintain a suit for the recovery thereof. Consequently, it is manifest that a commissioner is not a trustee within the general meaning of that term. The answer to the second question of law must be determined with reference to the time when the cause of action accrued. The plaintiff insists that as the evidence tended to show that the commissioner made no report and filed no account with the clerk that the cause of action did not accrue until demand made after the death of the commissioner, upon his administratrix. It is to be observed that the judgment at the April Term, 1923, appointing the commissioner did not require him to file either a report or an account with the clerk. It directed him specifically upon collection of the purchase money to pay the amount due to Dr. Hardison and “the remainder of said amount ... to the said Peal, administrator, to be applied upon said purchase-money indebtedness herein adjudged to be due him as administrator.” C. S., 165, requires a commissioner in certain instances to file within sixty days “a final account of his receipts and disbursements on account of the sale,” etc. C. S., 3243, requires a commissioner in partition proceedings to file a report within ten days after the sale,” etc. Even if it be conceded that C. S., 765, or C. S., 3243, is applicable to the facts of this case, the plaintiff knew at the end of either ten or sixty days that the money had not been paid. If these statutes were applicable, the law made the demand upon the failure to act and disburse the proceeds of the sale. *110 All the authorities agree that the cause of action accrues and the statute of limitations begins .to run whenever a party becomes liable to an action, if at such time the demanding party is under no disability. Eller v. Church, 121 N. C., 270; Brown v. Wilson, 174 N. C., 668, 94 S. E., 619; Washington v. Bonner, 203 N. C., 250, 165 S. E., 683. The original judgment at the April Term, 1923, directed the commissioner to pay the money to the plaintiff. Thereupon the plaintiff was entitled to receive the same. The commissioner, as the plaintiff contends, failed to turn over the proceeds of the sale as directed, and therefore a cause of action for money had and received accrued to the plaintiff. He was under no disability. Notwithstanding, he neglected to assert his right for a period of approximately nine years. In the meantime the three-year statute of limitations had barred his right and it necessarily follows that the trial judge ruled correctly. Affirmed.