Hairston v. Sumner

106 Ala. 381

Opinion

• COLEMAN, J.

— The bill was filed by Ada PI. Sumner, appellee, the object of which was to effect a partition of certain lands owned by her and her brother, R. P. Hairston, as tenants in common. It avers' that R. P. Hairston has been in the possession 'of said lands since the year 1884, and that he has collected a large sum of money as rents and used the same for his own purposes. The bill prays for an accounting for the rents. The appellants, who have succeeded as executrix, devisee and heir to the interest of R. P. Hairston, demurred to the bill assigning several grounds therefor.

The only question raised by the demurrer, which is insisted upon, is, whether the statute of limitations of three years is a bar to the claim for rents which accrued and were past due more than three years before the filing of the bill. The statute applies only to actions brought “to recover money due by open or unliquidated account.” There is no element of “an open or unliquidated account” in the indebtedness of one tenant-in common to his co-tenant for rents collected. It is more in the nature of an action for money had and received by one person to the use of another, or that of an implied trust, rather than an express trust. When the amount of money thus received has been ascertained, the plaintiff’s claim is neither open nor unliquidated. In such cases, there is nothing left open for future adjustment or agreement, and a quantum meruit valuation cannot arise. There may be offsets or equitable charges which a chancery court should allow in reduction of the amounts received, but matters defensive, cannot affect the character of complainant’s claim.

We express no opinion as to some of the propositions of law, declared.in the opinion of the chancellor, as they are not before us. The statute of limitations of six years was not raised by the demurrer. — Tarleton v. Goldthwaite, 23 Ala. 347.

The demurrer to the bill was properly overruled.

Affirmed.