Burt v. Myers

Follett, J. : The referee does not find that defendant’s testator took or applied the bonds pursuant to the contract of March 29, 1867, or pursuant to any agreement or understanding with the plaintiff. On the con [280] trary, it is found that October 8,1867, defendant’s testator received tbe bonds from Sedgwick “ without the knowledge, consent or authority of the said plaintiff,” and that, on the thirty-first of the same month they were applied in part payment of the purchase-price of seven-sixteenths of the mortgaged property, and “that said plaintiff in no way co-operated with said Austin Myers in his taking and using said plaintiff’s bonds ” as aforesaid. The referee repudiates the theory that Myers took the bonds as a trustee under an express or implied trust, and the case is barren of evidence to sustain such a theory. Assuming, as found, that the plaintiff owned the bonds when taken and applied by Myers, the facts found make a simple case of wrongful conversion without a shadow of right or authority, for which the plaintiff then (October, 1867) had a right of action without demanding their return. The fact that the cause of action remained undiscovered by the plaintiff until April, 1870, did not prevent the statute from running in the meantime. (Leonard v. Pitney, 5 Wend., 30; Allen v. Mille, 17 id., 202; Humbert v. Trinity Church, 24 id., 587; Hunter v. Gibbons, 1 H. & N., 459; Darb. & B. Lim., 24; Ang. Lim., § 185.) November 9, 1870, Austin Myers died, and thereafter (the date not appearing) letters testamentary were issued to the defendant. This action was begun May 29, 1877, and deducting eighteen months, as provided by 2 Revised Statutes (448, § 8, and Code Civ. Pro., § 443), the action was barred for nearly two years before it was commenced. When property has been converted, the taker may, by an equitable action, be charged as a constructive trustee, and the proceeds recovered, so long as they can be traced and identified, or the damages may be recovered in a legal action. The only remedy to which the plaintiff was entitled (aside from a recovery of the specific bonds) was the recovery of a sum of money, at law or in equity, sufficient to compensate him for the loss of his bonds, which is the only remedy sought in this action, and is the precise and only relief granted by the judgment under consideration. Such a judgment might have been recovered at law and satisfied by an execution, as it appears that defendant’s testator and his estate were at all times abundantly able to satisfy the damages claimed. When there is a complete and concurrent remedy at law, the [281] lapse of time which bars the legal remedy also bars the equitable ■one. (Humbert v. Trinity Church, 7 Paige, 195; affirmed, 24 Wend., 587; Borst v. Corey, 15 N. Y., 505; Rundle v. Allison, 34 id., 180; Ang. Lim., § 69.) In a case like the one under consideration the wrong-doer does not become a trustee within the meaning of the statute of limitations. (Decouche v. Savetier, 3 Johns. Ch., 190; Kane v. Bloodgood, 7 Johns. Ch., 90, affirmed, 8 Cow., 360; Wood, Lim., 413, § 200; Darb. & B. Lim., 183.) We cannot do better than quote the rule as laid down in the authority last cited, which is amply ■supported by the cases cited. “ In applying, however, the general principle that time does not run between trustee and cestui que trust, it must always be borne in mind that a trust, to oust the operation of the statute of limitations, must be a direct trust constituted by the act of the parties, .and not a constructive trust arising by implication of law. The person affected by the trust must be one in whom a confidence has ■been reposed, and who has thereby come into the enjoyment of property, not merely a wrong-doer in possession without title, whom a court of .equity would make accountable to those entitled to the beneficial enjoyment; and, therefore, although it is a rule of equity that one who enters on an infant’s estate is to be considered during the infant’s minority as holding as his guardian or bailiff, yet if the infant delays six years after coming of age to file a bill for an •account, the statute of limitations is a bar to such a suit as it would be to an action of account at common law.” The statute of limitations is a bar to this action. The judgment must be reversed, and it appearing that a new trial cannot avail the plaintiff, a final judgment is ordered in favor •of the defendant, dismissing the complaint, with costs. HaediN, P. J., and YaNN, J., concurred. Judgment reversed, with costs, and judgment ordered for defendant, with costs.