Battle v. Durham

11 Ga. 17

• Court: Supreme Court of Georgia
• Decided: January 15, 1852
• Docket: No. 3
• Status: Published

Opinion

By the Court.

Warner, J.

delivering the opinion.

[1.] The complainants allege in their bill, that the defendant received the assets contained in the trunk, for the purpose of paying the debt due by Perryman to them, the same being of the value of eight thousand dollars, and that the defendant, at the time he received the same, had notice of the purpose, for which the same were directed to be placed in his hands by Perryman. The complainants also allege, that the defendant has not paid their demand against Perryman out of the said assets, but has converted the same to his own use, &c. It is not stated by the complainants at what time the defendant refused to pay them, or at what time he converted the assets to Ms own use.

The defendant demurred to the bill, on the ground that the complainants’ demand was barred by the Statute of Limitations.

The defendant held the assets placed in his hands, by the direction of Perryman, as a trustee for the payment of the complainants’ demand, which a Court of Equity will compel him to execute. The defendant received the assets, to he paid to the complainants, and according to the ruling of this Court, in Keaton vs. Greenwood, (8th Georgia Rep. 102) it constituted an express, or direct trust. The argument for the defendant in error is, that the complainants allege, that the defendant converted the assets to his own use, and refused to pay their demand against Perryman, and therefore, the Statute of Limitations commenced to run from the time of such conversion, in favor of the defendant. However that may be, it is a sufficient answer to say, that it does not affirmatively appear on the face of the complainants’ bill, that four years, or any other definite period of time, had elapsed, from the conversion of the assets, to the time of filing their bill in Court, for the execution of the trust.

In order for the Statute of Limitations to constitute a good defence on demurrer, it should have appeared on the face of the bill, that the period of time prescribed by the Statute had elapsed, from the time of the conversion of the assets by the defendant, before the filing of the bill in Court; that fact not appearing on the face of this bill, it is not necessary to consider the effect of the allegation, that the receipt of the assets by the defendant, was not known to the complainants, until January, 1850.

Let the judgment of the Court below be reversed.