Opinion
No. 34671.
October 13, 1941.
1. LIMITATION OF ACTIONS.
A repudiation of an implied or constructive trust is not necessary to set the statute of limitations in operation, and in such cases, in absence of fraud and concealment, the statute runs from time when the act was done by which the party became chargeable as trustee by implication, that is, from time when cestui que trust could have enforced his right by action.
2. TRUSTS.
"Implied" and "constructive trusts" are not created by agreement and are not the results of agreement, express or implied, but are products of conduct, in which it is not necessary that cestui que trust have any part or knowledge, but in respect to which the law imputes an intention to the actor and the obligation to do equity when called on to do so, irrespective of whether actor had any such intention.
3. LIMITATION OF ACTIONS.
Where mortgage held by intestate was recorded on date of its execution, recordation was sufficient to put intestate's daughters on notice of existence of mortgage, and where everything that was done thereafter respecting mortgage was ascertainable by daughters upon exercise of reasonable diligence, the statute respecting limitations of actions in cases of concealed fraud was not available to daughters in action against executor of estate of intestate's brother to recover daughters' alleged share of money collected by brother on mortgage after intestate's death (Code 1930, sec. 2312).
4. LIMITATION OF ACTIONS.
Where intestate's brother, after intestate's death, made collections on a recorded mortgage held by intestate, and last payment received by brother was on April 27, 1928, and there was no proof of fraud or concealment, an action commenced by intestate's daughters against executor of brother's estate on November 9, 1938, to recover daughters' alleged share of collections was barred by 10-year statute of limitations, notwithstanding that brother had refused to accept final payment on mortgage on March 23, 1929, since brother's conduct created, at most, an "implied" or "constructive trust," and no repudiation thereof was necessary to set the statute of limitations in operation (Code 1930, sec. 2316).
APPEAL from the chancery court of Attala county, HON. T.P. GUYTON, Chancellor.
Johnson White and Pat M. Barrett, all of Lexington, for appellant.
Claims of complainants are barred by the statutes of limitations.
Fleming v. Grafton, 54 Miss. 79; Minor v. McDowell, 113 So. 576; New York Life Insurance Co. v. Gill, 182 So. 109, 182 Miss. 815; Metropolitan Life Insurance Co. v. Hall, 152 Miss. 413, 118 So. 826; Willoughby v. Pope, 101 Miss. 808, 58 So. 705.
It was the evident purpose of complainants to avail themselves of the provisions of Section 2312 of the Mississippi Code of 1930. In rendering a decree against the defendant in this cause it was necessary for the Chancellor to find that the provisions of Section 2312 were applicable as against the defendant. The decree does not so specifically hold.
There was a total failure on the part of complainants to prove any diligence whatever on the part of complainants. Likewise, there is no proof whatever that J.W. Rimmer or H.W. Rimmer fraudulently concealed from the complainants the amounts collected by J.W. Rimmer. The complainants having alleged fraud and the same having been denied, complainants thereupon had the burden to prove this by clear and convincing testimony. No reasonable inference of fraudulent concealment on the part of J.W. Rimmer or H.W. Rimmer can be drawn from the proof in this record.
G.J. Thornton, of Kosciusko, for appellees.
Appellants claim that any claim which the appellees have is barred by the ten year statute of limitations.
In the case of Yandell et al. v. Wilson et al., 182 Miss. 867, 183 So. 382, there was involved a trust similar to the one at bar.
The contention of the appellees is that the complainants never did actually know anything about the existence of the trust deed or the note owed by C.V. Campbell to P.G. Rimmer's Estate, and not knowing anything of its existence, would be under no duty to make any investigation thereof. On the other hand, J.W. Rimmer well knew whose property he had in his possession. The authorities are numerous and too well recognized to need citation that if the appellees did not know of the existence of this note and deed of trust, their cause of action would not arise until it was brought to their knowledge, or until by the exercise of reasonable diligence they would have found it out.
Furthermore, it is the appellee's contention that even if they had known of the existence of the trust and of the note and deed of trust and that J.W. Rimmer was handling said matters with their knowledge and consent, still J.W. Rimmer did not breach his trust and put them on notice of a hostile attitude until he refused to accept the last payment, which was made to Mrs. Rawson, at which time he requested her to cancel the deed of trust. Being then put on notice of his breach of trust, they had ten years in which to bring the suit, which they did.
P.G. Rimmer died intestate in 1923. Surviving were his wife, one son, and two daughters; also a brother, J.W. Rimmer, now deceased. There was no administration on the estate of P.G. Rimmer. He was the holder of a recorded mortgage by Campbell and wife in a principal sum in excess of three thousand dollars. Appellees aver that, without their knowledge or consent, this mortgage was taken over for collection by the brother, and, according to the proof, he received several payments thereon, which he distributed to the widow and son of P.G. Rimmer, but the daughters, the appellees here, were not included.
The last payment received by the brother was on April 27, 1928. On or about March 23, 1929, the mortgagor tendered to the brother the balance due on the mortgage, about four hundred dollars, but the brother declined to receive it, and referred the mortgagor to the widow of P.G. Rimmer, who accepted the final payment and cancelled the mortgage. On November 9, 1938, appellees filed this suit to recover of the executor of the brother's estate the share or portions of the collections made by the brother on the mortgage which should have been distributed to appellees, but which in fact went to the other two distributees.
The brother's executor interposed several defenses, one of which was the ten-year statute of limitations applicable to trusts, Section 2316, Code 1930, there being an elapse of more than ten years between the receipt of the collections, and even of the last collection, by the brother and the institution of the suit. This and the other defenses were disallowed by the court.
Appellees seem to argue that although there was an elapse of more than ten years after the last collection by the brother, there was less than ten years from the date when the brother declined to receive the final payment, that this declination was the first time that the brother had repudiated the trust which theretofore had been assumed by him, and that, therefore, the statute would run from the date of the declination or repudiation rather than from the date of the collections made by the brother.
In this, we think appellees are mistaken. We have here not an express trust, nor even a resulting trust. At most, it was an implied or a constructive trust, and the rule is that no repudiation of an implied or constructive trust is necessary to set the statute of limitations in operation. In such cases, in the absence of fraud and concealment, the statute runs from the time when the act was done by which the party became chargeable as trustee by implication, which is to say, from the time when the cestui que trust could have enforced his right by suit. 34 Am. Jur., p. 143. Trusts of the latter class are not created by agreement, nor are they the results of agreement, express or implied; they are products of conduct, in which it is not necessary that the cestui que trust may have had then or theretofore any part or knowledge whatever, but in respect to which the law imputes to the actor then and there an intention, and in consequence the obligation to do equity when called on so to do, and this whether he had any such intention at the time or not. Hence the rule that as to implied and constructive trusts, the statute begins to run from the time the act or acts were committed by which the actor becomes chargeable. See Cooper v. Cooper, 61 Miss. 676, 679, 696.
There is no proof here of any fraud or concealment. Moreover, the mortgage was recorded on the day of its execution, which was sufficient to put appellees on notice of its existence, Fleming v. Grafton, 54 Miss. 79, and everything that was thereafter done about it was at all times easily ascertainable by appellees upon the exercise of any reasonable diligence; wherefore, the statute, Section 2312, Code 1930, in respect to limitations of actions in cases of concealed fraud is not available. First Nat. Bank v. Johnson, 177 Miss. 634, 643, 171 So. 11.
Reversed, and bill dismissed.