Pendergrast v. Foley , 8 Ga. 1 ( 1850 )

By the Court.

Warner, J.

delivering the opinion.

[1.] The main question involved in this case is, whether Francis Foley, the original defendant in the action of trover, was protected by the Statute of Limitations from a recovery of the two slaves, Sam and George, in a suit instituted by the legatees of Patrick Pendergrast, deceased. In November, 1830, the negroes were sold by D. Foley, at auction, as the property of Patrick Pendergrast, and purchased by D. Foley, who was the agent of Pendergrast. The negroes passed, from D. Foley into the possession of one Andrew Dixon, and were mortgaged by Dixon to Jenckes, and subsequently sold, on the foreclosure of the mortgage, at Sheriff’s sale, and purchased by Francis Foley, in 1842. Patrick Pendergrast died, leaving a will, by which H. Cassidy and L. O’Byrne were appointed his executors. In January, 1832, the executors of Patrick Pendergrast were qualified to execute his will. In March, 1832, the executors of Pendergrast had a settlement with D. Foley, the agent of Pendergrast, who sold the negroes at auction, in 1830, for the proceeds of the sale of the negroes, and received from said agent the amount of the sale thereof. In June, 1845, the legatees, under the will of P. Pendergrast, instituted their action of trover against the present defendant’s intestate, Francis Foley, who was the purchaser of the negroes at the Sheriff’s sale. Pending the action of trover, a bill was filed by the defendant in that action against the plaintiffs therein, praying for a perpetual injunction; and upon the trial of that bill in the Court below, the question in regard to the Statute of Limitations was made. From the time of the qualification of the executors of Pendergrast, and the settlement by them with D. Foley, in 1832, to the time of the commencement of the action of trover against Francis Foley, who claimed, under the title derived from Daniel Foley, more than twelve years had elapsed. The plaintiffs in the action of trover were therefore barred by the Statute of Limitations, provided the Statute run against them.

The Court below decided that the legatees, under the will of Pendergrast, were barred by the Statute, and there was a decree rendered, making the injunction perpetual; whereupon, the legatees excepted, and now assign the same for error here. In a Court of Law, the general rule is, that when the Statute of Limitations once begins to run, it continues to run, unless its progress is arrested by some positive legislative enactment. Ballantine on Limitations, 60. Peek vs. Randall, 1 John. Rep. 165. Administratrix of McCollough vs. Speed, 3 McCord’s Rep. 455. Baring vs. McGee, Ibid, 452.

[2.] In Courts of Equity, frandhas been held to be an exception to the operation of the Statute, until the discovery of the fraud. Brooksbank vs. Smith, 2 Younge & Collier, 58. Hovenden vs. Lord Annesley, 2 Schoale & Lefroy, 634. The plaintiffs in error in this case insist upon two grounds to take it out of the Statute. First, that there -was fraud in the settlement with the executors by D. Foley, and secondly, that the legatees of Pendergrast were infants at the time the settlement with the executors by D. Foley took place, for the negroes sold at auction by him. With regard to the alleged fraud in the settlement, the record does show that D. Foley had received various sums of money for the testator, designated as “ dray money,” for which he did not account; but he did fairly account to the executors for the proceeds of the sale of the negroes, the specific property now sought to be recovered. The sale of the negroes by D. Foley, and the receipt of the “ dray money,” were two separate and distinct transactions. He has accounted for, and paid over to the executors, the entire proceeds of the sale of the negroes, and it would not bo equitable that the legatees should receive the proceeds of the negroes, and then recover them in an action of trover. If D. Foley fraudulently concealed from the executors the fact that he had in his hands other effects of their testator, then, he or his legal representatives, are responsible to the proper parties interested therefor, and the question of the application of the Statute to such fraudulent concealment, will naturally arise whenever a recovery of such concealed effects shall be sought in the proper tribunal. The legatees of P. Pendergrast were infants at the time of the settlement made with D. Foley by the executors, for the sale of the negroes, in 1S32, and the question is, whether, inasmuch as tho executors are barred by the Statute of Limitations, the infant legatees are also barred? Admitting that the sale of the negroes by D. Foley was illegal, yet, the executors knew of the sale after their qualification, and ratified it by receiving the proceeds of such sale, and the Statute commenced running against their right to sue for and recover the negroes, from the time of the settlement therefor with D. Foley, who was the purchaser of that specific portion of their testator’s estate. D. Foley’s title to the negroes was adverse to that of the executors, as is the title of those who claim under him.

[3.] But the counsel for the plaintiffs in error contend, that the legatees had an interest in the negroes, and therefore, the Statute did not run against them according to the provisions of the Act of 1817. The first section of the Act of 1817 declares, that the Statute of Limitations, when it has commenced running, shall not so operate, as to defeat the interest acquired by idiots, lunatics or infants, but shall cease until the removal of the disabilities of such persons, or the arrival of such infaut to the age of twenty-one years. Prince, 579. The title to th& personal property of the testator vested in his executors, and they had the legal right to sue for it. The legatees had not the legal right to sue for the property, until the assent of the executors. The record does not show that tho executors ever assented to the legacy of these specific negroes, although the executors did make provision for the support of the infants out of their testator’s estate. The appropriation of funds sufficient for the maintenance and support of the infants, during their minority, out of the estate of their testator, is not sufficient, in our judgment, to establish the fact that the executors assented to the legacy of these specific negroes, even by implication, so as to divest the title of the executors thereto, and vest the same in the legatees. The interest of the infants, contemplated by the Statute of 1817, must be such an interest as would enable them to maintain a suit, in their own names, for the property; as, where the legal title to lands is cast upon the infant heirs of the deceased ancestor. In Wych vs. The East India Company (3 P. Williams, 309,) it was held, that where an executor, administrator, or trustee for an infant, who neglects to sue within the time prescribed by law, the Statute of Limitations shall bind the infant. In Hovenden vs. Lord Annesley, Lord Redesdale says, “a cestui que trusts always barred by length of time operating against his trustee.” 2 Schoales & Lefroy, 628. See also, Pentland vs. Stokes, 2 Ball & Beatty, 71, and Hall vs. Bumstead, 20 Pickering's Rep. 2, to the same point.

[4.] If the legal title to the two negroes now in controversy, was in the testator, at the time of his death, the same vested in his executors, who alone could have maintained an action for a conversion thereof, and the Statute of Limitations commenced running against them in -favor of D. Foley, and those claiming title under him, from the time of the settlement made with D. Foley, if not from the time of the qualification of the executors to execute the testator’s will.

The executors were barred by the Statute, and so áre the infants, their cestui que trusts, also barred by the Statute. If the executors have, by their negligence, injured the interests of their cestui que trusts, then their r.emedy is against them, for the injury sustained in consequence of such negligence. How far the rights of infants to real estate would be protected by the Act of 1817, we express no opinion — we leave that an open question. Our judgment is confined to such cases only, as where the title to the personal property of the testator, or intestate, vests in his legal representative.

Let the judgment of the Court below be affirmed.