Barber v. Barber

53 S.E. 1017, 125 Ga. 226, 1906 Ga. LEXIS 97

• Court: Supreme Court of Georgia
• Decided: March 28, 1906
• Status: Published

Opinion

Cobb, P. J.

(After stating the foregoing facts.) Edward Barber, in 1863, married a widow who was the mother of two small children and the owner of a small farm and of one mule, one wagon, fifty head of cattle, and other personal property. He immediately took possession of the property, and managed and controlled the same for his wife until 1884. The farm was worth fifty dollars per annum for rent. The cattle and other property w;ere used by him according to his own discretion, and practically in the 'same manner as one would use his own property. No account was ever rendered by him to his wife, and none was ever called for. In 1884 he delivered up to his wife possession of the farm and the cattle then remaining. This suit was brought in 1901, after the death of the husband.

There can be no question that from 1869 to 1884 the husband was, in relation to the wife’s property in his possession, a trustee for her. Oliver v. Hammond, 85 Ga. 323, 331; Teasley v. Bradley, 110 Ga. 497; Rucker v. Maddox, 114 Ga. 899. Did the relation continue until his death? We think not. The surrender of the land and the remaining personalty, in 1884, was sufficient to indicate to any prudent person that he considered the trust relation at an end; and his failure within a reasonable time thereafter to account for the income from all the property, and the proceeds of that not surrendered, was notice to the wife that he did not consider himself further liable to her. It may be that he had used the income, and the proceeds of that unaccounted for, for the maintenance and education of the wife’s children, or in other ways that would make the expenditures a charge against the wife’s separate estate. But even conceding that he had converted it all to his own. use, the surrender of what was left, without any offer to account for that not surrendered, and the complete abandonment of all control over her property was a loud-sounding notice to her, in effect saying, “I consider myself under no further liability to yon on account of your property which I have been managing.” She failed to heed this notice at her peril. It is not necessary to determine exactly what would be a reasonable time after this surrender from which the statute would begin to run; for under any circumstances the suit would be barred after the lapse of sixteen years from the time of surrender.

The judge did not err in overruling the plaintiff’s exceptions of law, nor in entering judgment for the defendants on the basis of the auditor’s report. The case was an equity case, and the exceptions of fact filed by plaintiff were properly disallowed, under the ruling in First State Bank v. Avera, 123 Ga. 598.

Judgment on main bill affirmed; cross-bill dismissed.

All the Justices concur.