In Mills v. Mills (115 N.Y. 80) the court said: "Even if an accounting was necessary to determine the amount due from him to his brother, the account could be taken in an action at law as well as in an action in equity; and in whatever form the action was commenced the legal rule of limitations would be applicable.Summary of this case from Keys v. Leopold
Argued May 1, 1889
Decided June 4, 1889
E.A. Nash for appellant. James Wood for respondent.
The sole question for our determination is whether the plaintiff's cause of action was barred by the statute of limitations, and we are of opinion that it clearly was. The absolute title to the lands was vested in the defendant, evidently with the intention that he might sell them and reimburse himself and pay over any surplus to his brother. Long before his brother's death, he had sold all the lands, and received more than sufficient for his reimbursement. After the sale of the lands, he ceased to be mortgagee. He must be deemed to have sold the lands for the satisfaction of his mortgage, and it was satisfied. So far as he received the proceeds of the sales they were applicable, and must be leemed to have been applied for his reimbursement. After he had been fully reimbursed, the proceeds of the lands which came to his hands were received by him to and for the use of his brother, and it was his duty at once to pay over such surplus proceeds to his brother, and upon his failure so to do, he was liable without any demand to suit for their recovery.
The six years statute of limitations is applicable to such a case. (Code, § 382.) When money is received by one to and for the use of another, under such circumstances that it is his duty at once to pay it over, then an action for money had and received may be brought to recover it without any demand; and in such a case the statute of limitations begins to run from the day of the receipt of the money. ( Stacy v. Graham, 14 N.Y. 492; Matter of Cole, 34 Hun 320; Compton v. Elliot, 16 J. S. 211; Diefenthaler v. Mayor, etc., 111 N.Y. 331.)
The defendant must always have known the amount of his loans and advances to his brother, and it was his duty to keep an account of his expenditures on account of the property transferred to him and hence he could tell when he had been fully reimbursed and the time came when he received moneys to and for the use of his brother under the obligation to make payment of them to him. Even if an accounting was necessary to determine the amount due from him to his brother, the account could be taken in an action at law as well as in an action in equity; and in whatever form the action was commenced the legal rule of limitations would be applicable. ( Rundle v. Allison, 34 N.Y. 180 : Carr v. Thompson, 87 id. 160; In the Matter of the Accounting of Neilley, 95 id. 382.)
All the relief asked for in the complaint is an accounting and a judgment for a sum of money, and no other relief was needed or possible upon the facts established. This was in no sense an action to redeem, as there was no mortgage and nothing to redeem. ( Morris v. Budlong, 78 N.Y. 543.) When the lands were sold, the mortgage being satisfied, the lien thereof did not attach to the moneys, but the defendant became a debtor for the surplus. He cannot, therefore, be treated as a mortgagee in possession, and the cases of Miner v. Beekman ( 50 N.Y. 337) and Hubbell v. Moulson (53 id. 225) are not applicable.
It is said, however, that the defendant was in some sense a trustee of the moneys received by him, and hence that the statute of limitations could not begin to run in his favor until he repudiated the trust. But the defendant was not a trustee in the sense contended for. He had received money belonging to another and became a debtor for the same, and he is in no other sense a trustee than every one is who receives money to and for the use of another. There was no actual express trust as to these moneys created by the act of the parties. It is certainly not true that every mortgagee is a trustee of an express trust, and the relation of trustee and beneficiary does not exist between mortgagor and mortgagee. If the defendant was in any sense a trustee of the moneys received by him, it was simply an implied trust which the law would raise for the purposes of justice; and as to the liability growing out of such a trust the ordinary rules of limitations apply. ( Kane v. Bloodgood, 7 Johns. Ch. 90; Lammer v. Stoddard, 103 N.Y. 672.)
Section 410 of the Code has no application to this case, because if we are right in what has already been said, no demand was necessary to entitle the plaintiff to maintain this action.
The novel claim is made on behalf of the plaintiff that the defendant may be held as executor de son tort of his brother's estate, and hence that the statute of limitations must be applied as if he were rightfully and actually executor with his brother's estate in his hands. The obvious answer to this claim is two-fold. (1.) No such theory of liability is mentioned in the complaint, and no mention was made of it upon the trial or in the findings of the referee. (2.) An executor de son tort is one who intermeddles with the estate of a decedent after his death, and does wrongfully such acts as a rightful executor might do. (Williams on Executors, 248.) Here there was no wrongful interference by the defendant with the estate of his brother after his death. All the estate which he had or which came into his hands came to him rightfully, and he simply became a debtor bound to account. He can no more be treated as an executor de son tort than any person who in the lifetime of a decedent has become his debtor for money had and received to and for his use.
The plaintiff cannot hold him as an executor de son tort because he assumed to make a settlement with the only child of his brother, and at the same time repudiate that settlement as wholly unauthorized and null.
We, therefore, see no way to avoid the conclusion that the plaintiff's cause of action was barred by the statute of limitations, and the judgment should be reversed and a new trial granted, with costs to abide event.