Parker v. Jones' Adm'r

67 Ala. 234

• Court: Supreme Court of Alabama
• Decided: December 15, 1880
• Status: Published

Opinion

SOMERYILLE, J.

— No point is raised-in this case, in the court below, in reference to the statute of limitations, either by demurrer to the bill, or by the answer of the several defendants.

Such defense can be considered by the appellate court, only when properly raised by the pleadings. If, in such ■event, there is any reason for accepting the given case from the operation of the statute, it must be introduced by an amendment to the bill, or raised by way of special replication to a plea. — Ragland’s Ex’rs v. Mortou, 41 Ala. 344; Nimmo v. Stewart, 21 Ala. 682.

The complainants, as the heirs and distributees of Robert Parker, deceased, on whose estate there was no administration, seek to have a trust declared in their behalf in certain lands, alleged to have been purchased by one John W. Jones, in his own name, with funds belonging to the estate.

The rule is, that cestuis que trust, if proper parties complainant, and entitled to relief, can follow the proceeds of trust property, or funds, into the hands of third persons, so long as the same can be satisfactorily traced and identified, although such person may have taken the title of property purchased with the trust fund in his own name, or the name of any other person with notice of the facts. — 2 Perry on Trusts, §§ 828, 835-8; Maury’s Adm’r v. Mason’s Adm’r, 8 Port. 211; Robison v. Robison, 44 Ala. 227.

Under the facts of this case, we cannot see that the Chancellor erred in deciding, that the legal testimony failed satisfactorily to trace the trust fund into the lands in controversy, and this of itself, is fatal to the equity of the bill.

The decree of the Chancellor is affirmed.