Westbrook v. Munger

Campbell, C. J., delivered the opinion of the court. The case made by the bill is that the administrator of Moye’s estate enforced a decree he had obtained for the purchase-money of land sold by his intestate, and when, the land was sold it was by the consent of the administrator struck' off to the two Dancy children as purchasers, and conveyed to them on the express condition that the amount of their bid, accepted as cash, should be accounted for by them in the final settlement of the estate of Moye.* The decree was assets of the estate. The éstate was in debt, and all its assets might be required to pay the indebtedness. The Dancy children were heirs of Moye and entitled to the estate after payment of its debts. Their guardian desired to secure the land sold under the decree to them and became the best bidder for them, and instead of paying cash, as the decree contemplated and required, it was agreed that only money enough to pay costs should be paid in cash, and that the land should be conveyed to the minors subject to an accounting for the amount of the bid in the final settlement of the estate. This was an express investment of that much of the assets of the estate in the land to await a final settlement, and to be recalled for the purposes of the estate or not as the exigency might require on final settlement. Until then the pro [324] visional arrangement thus made was to stand. If the condition was such that the fund thus invested in the land conveyed in this way to the Dancys should not be needed for the paramount claims of creditors, the land was to be theirs freed from the trust. If the exigency of the estate required this money to be accounted for it was to be done. The bill shows that the complainant is a creditor of Moye's estate, and he seeks satisfaction out of this trust-fund invested in the land conveyed to the Dancys in the way stated. The arrangement stated created an express, direct, technical, and continuing trust as to the four thousand nine hundred and ninety-seven dollars and twenty-seven cents invested in the land. The pleas are all insufficient and should have been overruled. Three of them set up statutes of limitation. Time is not to be counted until the right of action accrues, and until final settlement of the estate of Moye the trust in the land created by the arrangement made did not cease. The six years' statute has no application because there is no effort to recover any money paid. The seven years' statute, which it is claimed bars the decree, has no application, because no effort is being made to enforce the decree under which the land was sold. The ten year’s’ statute was not a bar for the reason already given, viz.: that time did not begin to run so long as the trust continued and the estate remained unsettled. When it became proper to call for these assets for the purposes of the estate, then, for the first time, a right of action accrued with respect to the charge upon the land. Until then time went for nothing. The plea of payment, as counsel call it, i. e., that which avers the solvency of Moye’s estate and the payment of the four thousand nine hundred and ninety-seven dollars and twenty-seven cents to the Dancy children as an absolute partial distribution of their shares of the estate, is not sufficient, because it contradicts the record of the transaction by which the defendants claim the land. Their title is derivative from the Dancy children, in whom it was vested as stated above. The existence of this record, as set forth in the bill, is not denied, but it is contradicted by the averment of the plea that the transaction was not as the record shows it to have [325] been, which record is the foundation of the title of the defendants. This is not allowable. The record shows the transaction by which the title was put in the Dancy children. It admitteth no averment to the contrary. By it the defendants must stand or fall, for they claim under it. There is no conflict between the views announced in this case when here before, 61 Miss. 329, and those held in Cooper v. Cooper, 61 Miss. 676, as supposed by counsel. ' This case presents an express, direct, technical trust. There was nothing of the kind in the other case, and that was the ground on which it was decided. As the pleas are held to be insufficient, it is not necessary to notice objections made to the manner of pleading them. Decree reversed, pleas overruled, and case remanded for an answer within thirty days after the mandate herein is filed below.