McCallam v. Carswell

Hall, Justice. Upon the close of the complainant’s evidence, the court on motion, dismissed the bill, and this, as it seems to us, was the proper disposition to make of the case. 1. The complainant by her pleadings made a case of a continuing, executory trust, to which the statute of limitations did not apply, unless the defendant had changed his relations to the real owner, in reference to the policy of insurance which had been assigned to him by complainant’s intestate in his lifetime, and had given notice, either direct or such as was to be inferred by open and notorious acts, that he held it adversely and in hostility to the claim of the cestui que trust. Scott vs. Haddock, 11 Ga., 259, (h. n. 6), 204, 265. The assignment of the policy was absolute and unconditional, and no trust could be implied from its terms. The plaintiff’s own evidence showed'that the defendant took the assignment in extinguishment of a debt which her intestate o.wed him, and gave intestate the liberty of having the'policy re-assigned-to him, in the event he desired to do so, upon his paying the debt and interest due thereon, together with the amount of premiums the defendant had to pay to prevent the policy from lapsing, and for this reason defendant kept possession of the note evidencing intestate’s indebtedness to him. It was entirely optional with intestate whether he redeemed the policy or not, and for want of mutuality neither one of the parties could have enforced a specific performance of this contract against the other. Beall vs. Clark, 71 Ga., 818. [29] The defendant held the policy upon no special trust or confidence. No such relation existed between him and the assignor of the policy. His title to it became adverse when the assignment was made, and time began to run in his favor from that date. The right of action set up by complainant, if any such her intestate, or she as his legal representative, ever had, accrued then, and more than the statutory period having elapsed before the commencement of her suit, her right of action was barred, and the dismissal of her bill, upon this ground, was required. 2. But there was another ground upon which this result was inevitable. The bill made one case and the proof offered to sustain it another, and widely different case. There was no correspondence between the allegations and evidence, but a variance, if not a direct repugnance. Judgment affirmed.