Ashe, J.
The exceptions taken by the defendant are, first, to the first issue submitted; secondly, to the refusal of His Honor to submit the issue proposed by the defendant; and lastly, the alleged misdirection in regard to the statute of limitations.
The first issue was one directly raised by the pleadings. The plaintiff alleged that there never had been a final account and settlement of the partnership dealings, and the defendant insisted that there had been a full and final account and settlement of all partnership matters, except as to the land and salary of the plaintiff’s testator.
The issue proposed by the defendant, aside from not being offered in proper time, which was a matter of discretion with His Honor, was not raised by the pleadings, as properly held by the court. The individual indebtedness of the respective partners to the firms had not been mentioned in the complaint or answer. But, in what is called the replication, which must be regarded as an amended complaint of the plaintiff, the indebtedness is specially set forth with the averment that it had been omitted in the partial settlement had in 1873; and the defendant, in his second amended answer, allowed by the court, to the amended complaint of the plaintiff, does not deny the allegations of the plaintiff with regard to this indebtedness; and therefore, they are to be taken as true, and leave nothing upon which to frame an issue. If this were not so, the issue proposed is not a proper one, for it only embraces in the exception the four accounts set out in the amended complaint, and omits the land and the salary— though the defendant insisted that he had settled everything but these two items.
The exception to the instruction upon the statute of limitations was properly overruled. Certainly, fiduciary relations subsist between copartners. Collyer on Partnership, lays it down that the same rules and tests are applied to the conduct of partners as are ordinarily applied to that of trustees. Indeed the functions, rights and duties of partners in a great measure, comprehend those both of trustees and agents.
McNair
v.
Ragland,
3 Mur., 139.
But the application of the statute of limitations to trusts depends upon the character of the trust, and the distinction is this: Where the trust is constructive, such as is raised by operation of law,
a. g.,
where one takes possession of property in his own name and is afterwards by matter of evidence or construction of law changed into a trustee, lapse of time may be pleaded in bar even when his' conduct was originally fraudulent, and his purchase would have been repudiated for fraud. Angel on Lim., §471. But where the trust is direct, it is a well established rule, belonging exclusively to the jurisdiction of courts of equity, that, so long as the trust subsists, the right of the
cestui que trust
cannot be barred or excluded by the trustee, by virtue of the length of time during which the latter has held possession.
Ib.,
§468. Yet it is a rule quite as well settled, that where the fiduciary character of the trustee has ceased or been put an end to by his repudiating the rights of the
cestui que trust,
as by assuming absolute ownership over the property, or by refusing to account for the same, then the statute does apply, and the
cestui que trust
must bring his action within the time prescribed or be barred.
Ib.,
§174.
But the defendant contends there was a “cesser” of the privity in this case; that the fiduciary relation between him and the plaintiff, as the representative, of the deceased partner, was put an end to by the settlement which took place in 1873, and his action was barred after three years from that time. But did that work a “cesser”? “Although the representative of a deceased partner cannot, strictly speaking, be deemed a partner with the survivors, still a community of interest subsists between them. The executor is a tenant in common with them in all the partnership property and effects in possession
{e. g.,
the two tracts of land mentioned in the pleadings); and though the choses in action go to the survivors, and the law vests in them the sole and exclusive right to reduce them into possession, yet, when recovered, the survivors are regarded as
trustees,
thereof for the benefit of the partnership, and the executor of the deceased
partner possesses, in equity, the same right of sharing and participating in them which his testator would have had, if he had been still living.” Story on Part., 493. So that, the representative of the deceased partner is still, to some extent, a partner with the survivors until the business of the partnership is wound up. For it is held that the statute of limitations does not commence to run in favor of one partner against another, even after a dissolution of partnership, as long as there are debts due from the partnership to be paid, or debts due to be collected.
Hammond
v.
Hammond,
20 Georgia, 556; Wood on Lim., §210.
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Ashe, J.
The exceptions taken by the defendant are, first, to the first issue submitted; secondly, to the refusal of His Honor to submit the issue proposed by the defendant; and lastly, the alleged misdirection in regard to the statute of limitations.
The first issue was one directly raised by the pleadings. The plaintiff alleged that there never had been a final account and settlement of the partnership dealings, and the defendant insisted that there had been a full and final account and settlement of all partnership matters, except as to the land and salary of the plaintiff’s testator.
The issue proposed by the defendant, aside from not being offered in proper time, which was a matter of discretion with His Honor, was not raised by the pleadings, as properly held by the court. The individual indebtedness of the respective partners to the firms had not been mentioned in the complaint or answer. But, in what is called the replication, which must be regarded as an amended complaint of the plaintiff, the indebtedness is specially set forth with the averment that it had been omitted in the partial settlement had in 1873; and the defendant, in his second amended answer, allowed by the court, to the amended complaint of the plaintiff, does not deny the allegations of the plaintiff with regard to this indebtedness; and therefore, they are to be taken as true, and leave nothing upon which to frame an issue. If this were not so, the issue proposed is not a proper one, for it only embraces in the exception the four accounts set out in the amended complaint, and omits the land and the salary— though the defendant insisted that he had settled everything but these two items.
The exception to the instruction upon the statute of limitations was properly overruled. Certainly, fiduciary relations subsist between copartners. Collyer on Partnership, lays it down that the same rules and tests are applied to the conduct of partners as are ordinarily applied to that of trustees. Indeed the functions, rights and duties of partners in a great measure, comprehend those both of trustees and agents.
McNair
v.
Ragland,
3 Mur., 139.
But the application of the statute of limitations to trusts depends upon the character of the trust, and the distinction is this: Where the trust is constructive, such as is raised by operation of law,
a. g.,
where one takes possession of property in his own name and is afterwards by matter of evidence or construction of law changed into a trustee, lapse of time may be pleaded in bar even when his' conduct was originally fraudulent, and his purchase would have been repudiated for fraud. Angel on Lim., §471. But where the trust is direct, it is a well established rule, belonging exclusively to the jurisdiction of courts of equity, that, so long as the trust subsists, the right of the
cestui que trust
cannot be barred or excluded by the trustee, by virtue of the length of time during which the latter has held possession.
Ib.,
§468. Yet it is a rule quite as well settled, that where the fiduciary character of the trustee has ceased or been put an end to by his repudiating the rights of the
cestui que trust,
as by assuming absolute ownership over the property, or by refusing to account for the same, then the statute does apply, and the
cestui que trust
must bring his action within the time prescribed or be barred.
Ib.,
§174.
But the defendant contends there was a “cesser” of the privity in this case; that the fiduciary relation between him and the plaintiff, as the representative, of the deceased partner, was put an end to by the settlement which took place in 1873, and his action was barred after three years from that time. But did that work a “cesser”? “Although the representative of a deceased partner cannot, strictly speaking, be deemed a partner with the survivors, still a community of interest subsists between them. The executor is a tenant in common with them in all the partnership property and effects in possession
{e. g.,
the two tracts of land mentioned in the pleadings); and though the choses in action go to the survivors, and the law vests in them the sole and exclusive right to reduce them into possession, yet, when recovered, the survivors are regarded as
trustees,
thereof for the benefit of the partnership, and the executor of the deceased
partner possesses, in equity, the same right of sharing and participating in them which his testator would have had, if he had been still living.” Story on Part., 493. So that, the representative of the deceased partner is still, to some extent, a partner with the survivors until the business of the partnership is wound up. For it is held that the statute of limitations does not commence to run in favor of one partner against another, even after a dissolution of partnership, as long as there are debts due from the partnership to be paid, or debts due to be collected.
Hammond
v.
Hammond,
20 Georgia, 556; Wood on Lim., §210.
But conceding, as contended by the defendant, that, the relation of trustee and
cestui que trust
terminated in the dissolution of the partnership by the death of Hugh L. Patterson, yet there is another fiduciary relation subsisting between the parties which opposed an obstruction to the running of the statute against the plaintiff. The defendant Lilly, by the terms of the original articles of copartnership, was constituted the general agent of the partnership. He was to keep the books, hire clerks and servants, and have the entire management of the business. And the business was continued upon the same terms under the firm of Lilly
&
Patterson, with the exception that the plaintiff’s testator was to be paid a salary of five hundred dollars a year for certain services to be rendered by him ; and after the dissolution by the death of Hugh Patterson, the business was continued in the same manner with the
consent
of the plaintiff' as he alleges — and it is not denied. This made Lilly the agent of the plaintiff as well as of the other surviving partner, and his agency continued up to the commencement of the action. He' sold one tract of land in 1875 and divided the proceeds, and holds another tract subject to division. His agency had never ceased before this action. It is true a demand was made by the plaintiff in 1873, but there was no refusal; and a demand and refusal were necessary to terminate his agency. In
Northcott
v. Casper, 6 Ired., Eq., 303, Chief-Justice RuffiN said: “If there be an express understanding by one to manage an estate for
•another, for an indefinite period, a right to an account arises between them from time to time, but,the statute of limitations does not operate to bar an account for any part of the time while the relation of principal and bailiff subsists between them, that is, while the agency of the management of the estate is kept up. While the relation continues, there is a privity between the parties, and there is nothing to set the statute in operation”: and it ■was held in that case that a demand and refusal were necessary to put the statute in motion. And in
Commissioners
v.
Lash,
89 N. C., 159, it was held that where the relation
of
principal and agent subsists, the demand for an account necessary to put the statute of limitations in operation, must be such as to put an end to the agency. Nothing less than a
demand and refusal,
or the coming to a final account and settlement, or the death of one of the parties, will put an end to an agency. Here, there was no refusal, and the jury have found there was no final account and settlement, and the parties are still living.
As to the order of reference, we think there is no error, for upon the winding up of the affairs of the partnership, each partner has a right in equity, a
quasi
lien upon the partnership property to have it applied to the debts and liabilities of the firm; and to have a similar lien on the surplus assets for the purpose of having them applied in payment of what may be due to the partners respectively,
after deducting what may he due from them, as partners to the firm.
Lindley on Part., 471.
There is no error.
Let
this be certified that the case may be proceeded with in conformity to this opinion and the law.
No error. Affirmed.