Hastie & Silver v. Aiken

SOMERYILLE, J. — This is not properly a bill for the settlement of partnership accounts of the firm of Aiken & Has-tie. If so, the plea of the statute of limitations of six years, might be a sufficient answer to the case made by the bill, unless it come within the principle decided in Causler v. Wharton, 62 Ala. 359, which is immaterial to be decided. We may concede that the lapse of six years from the date of dissolution, ordinarily, and as a general rule, operates to bar a suit in equity for the settlement of partnership accounts. Bradford v. Spyker’s Adm’r, 32 Ala. 134. The complainant in the bill does not pray for any decree or relief against the defendant, based on any balance due on such settlement. Such claim is expressly renounced, and all redress founded on it is directly repudiated. It is the recovery and enforcement of such a personal decree that statutes of limitations are held to legally bar. They affect the remedy, rather than the right. — 2 Brick. Dig. p. 217, § 1. The contention here is a trust fund — an amount of money over five thousand dollars — deposited, by special agreement, in the Bank of Mobile, under the management of Price Williams & Son, who were constituted trustees for its investment, until the claimants could settle their relative rights to it by agreement or litigation. This is not a trust raised by implication of law, such as comes within the operation of the statute of limitations. It is an express and continuing trust, created in writings against which time would not, in general, commence to run until the trustee disavows and repudiates his trust, and such conduct, or disavowal, is brought ■ to the knowledge of the cestui que trust. It is the. maxim of honesty, as well as of settled law, that no trustee, while occupying his position of trust and confidence, should be heard to lay claim to the trust fund by setting up an adverse [317] title. — 2 Perry on Trusts, § 863; 2 Brick. Dig. p, 217, § 10; 7 Wait’s Act. & Def. p. 269, § 22. And as the possession of the trustee is, in law, that of each beneficiary, of whom he is the fiduciary agent, it' is also settled that one cestui que trust can not set up the statute of limitations against his co-cestui que trust, unless,, perhaps, under such circumstances as would authorize the trustee himself to make such defense. — -2 Perry on Trusts, § 863 ; Hill on Trustees, p. 390; Foscue v. Foscue, 2 Ired. 321. The defendants, therefore, were precluded from undertaking to set up any right to this fund, claimed to have accrued by mere bar of time. The demurrer, interposing the statute of limitations, was properly overruled. The complainant was entitled to introduce any legal evidence showing the relative ratio of ownership of the claimants in the disputed fund. The statute of limitations never bars the introduction of evidence, for a deed may be so old that it is admitted as an ancient document without preliminary proof of its execution. The state of the partnership accounts necessarily determines the proportion of the trust fund to which the beneficiaries are severally entitled. It is the mere incident, and not the gravamen of the suit. The decree of .the Chancellor ordering the register to take such an account was, therefore, correct. The decree of the Chancellor settled all the equities between the parties litigant, and there remained only a reference to be had, in order to ascertain their ratio of interest in the disputed fund. The decree was, therefore, final, and will support an appeal to this court, — 1 Brick. Dig. p. 89, § 85, and cases cited. The above views of this case render useless the consideration of the other grounds of demurrer, which are based upon the erroneous theory that the suit is an ordinary one for the settlement of partnership accounts, and that the trust created is not an express one. The decree of the Chancellor is affirmed.