TARLETON vs. GOLDTHWAITE'S HEIRS & ADM'R, 23 Ala. 346

GIBBONS, J. A motion is made in the present case to dismiss the appeal, on the ground that the decree of the chancellor has been executed by the defendants, and acquiesced in on the part of the complainant. This motion is predicated on the cases of Hall v. Hrabrouski, 9 Ala. 278, and Bradford v. Bush, 10 Ala. 274. These were eases at law, where writs of error had been sued out and prosecuted in this court, and pending the litigation the plaintiff below had collected his judgment by execution.

On the judgment being reversed by this court, a motion, founded upon the fact that the judgment below had been coerced by due process of law, was made in this court to dismiss the writ of error, or stay the certificate of reversal until the plaintiff should restore to the defendant what he had thus coerced from him on a judgment then reversed and held for nought at his own instance.

The court entertained the motion in both the cases, and denied the party the right to prosecute his judgment, by enforcing its collection, at the same time that he is seeking a reversal of it; and the court intimate, in the latter case, that, if a motion had been made to dismiss the writ of error before the ease was tried in the Supreme Court, on the facts disclosed on the motion then on trial, such motion would have prevailed. The same principle was afterwards invoked in the cases of McCreeliss’ Distributees v. Hinkle, adm’r, 17 Ala. 459, and in Knox v. Steele, 18 Ala. 815.

These were cases originating in the Orphans’ Court; and this court, while it recognizes the correctness of the rule as laid down in the cases in 9 Ala. R. and 10 Ala. R., above referred to, distinguish between those cases and the case presented in 17 Ala. The principle is said to be peeuliarly applicable to judgments at law, but is not necessarily applicable to cases arising in the Orphans’ or Chancery Courts. The reason of this distinction we apprehend to be, that if a judgment at law is reversed, it abrogates the whole judgment.

It cannot be reversed in part, and affirmed in part; whereas, in cases from the probate court, and in chancery eases, the judgments or decrees may be reversed in part, and affirmed in part. On the reversal of a judgment at law, therefore, the theory of the law is that the parties are placed in statu quo, and are to be considered as if the judgment had never been rendered. In the case of McCreeliss’ Distributees v.

Hinkle, adm’r, it is said: “ The power thus exercised by the appellate court, to compel the plaintiff to refund the money or dismiss the writ of error, seems to me to be a discretionary one, and may be well exercised when the conduct of a party is vexatious or oppressive, and may ultimately result to the injury of the other; but, when the defendant can in no aspect of the case be injured by the plaintiff’s receiving the money, and this is paid without compulsion, I see no good reason why we should make an order on the plaintiff to refund the money, or to submit to a dismissal of his writ.” We consider this reasoning applicable to the case before us, and it is, in our opinion, decisive of the question.

The defendant’s motion to dismiss the appeal, therefore, cannot prevail. The next question, in the order in which we propose to ex - amine the present record, is, whether in the bill, answers, exhibits and proofs, the complainant is entitled to a decree for any thing whatever for rents collected by the intestate in his life time and unaccounted for.

It is insisted that, as the complainant’s bill, charging indebtedness and demanding the account, calls upon the defendant Campbell to exhibit the documents, memoranda, papers and written evidences tending to establish the state of the accounts between the complainant and the said intestate, in the hand-writing of the said intestate; and inasmuch as the answers deny such indebtedness, and any liability to account, and these documents produced in response to the call of the complainant become evidence in the causo, and show no liability on the part of the intestate to the complainant, so far as the question of rents is concerned — therefore, the complainant is not entitled to an account.

It is undoubtedly true. that memoranda from books, and written documents, when produced in response to a call from the complainant by way of discovery, become evidence .in the cause; but, like most other evidence offered upon the trial of causes, it is only evidence tending to prove a conclusion, bnt is not necessarily conclusive to establish the result which it tends to prove.

Taking all the evidence upon the question of the liability of the administrator to account, the case stands thus: In favor of the complainant is the charge in the bill of the liability, with the allegation that the intestate accounted for the rents up to the 1st of November, 1838; and proof that the intestate rented the premises in his own name, and received the rents therefor, all the while recognizing the right of complainant to one half of the land.

On the other hand, against the indebtedness, is, first, the answer of the defendant denying the’ debt, not from personal knowledge, but from belief merely,* founded upon the character of the parties and of their situations during the space of time over which the account claims to run; secondly, the fact that there appears upon the books of the intestate the evidence of accounting for the rents up to the 1st of November, 1838, and no evidence afterwards of any accounting, or liability to account, for said rents, on the books or among the papers of said intestate; thirdly, the mutual receipts of the parties, prepared as if in anticipation of a final settlement, or after a settlement had taken place, but not signed by the parties, and the document relative to the rents of the said premises after the 1st of November, A.

D. 1847. In thus stating the evidence, the complainant, in our opinion, has the advantage, and the proof tending to show a liability on the part of the administrator to account, greatly preponderates over that tending to show a contrary conclusion. The complainant does not call upon the defendant to disclose the evidence of a liability to account. This he charges distinctly in his bill, and proposes to prove ; but he charges that the defendant, the administrator, has in his possession the specific data by which that account shall be made up, and calls upon him to produce such evidence to the court.

The defendant complies, produces the evidence, and when inspected, so far from giving the information which the complainant sought, it tends rather to show no indebtedness at all. But we do not consider this evidence sufficiently weighty to overbalance the proof of the complainant, tending to show a liability to account for rents in the hands of the intestate, and we must decide according to the weight of evidence.

The first error assigned upon the record is, that the court below sustained the plea of the statute- of limitations of six years, and limited the complainant’s demands to six years next preceding the filing of the bill. The question raised by this assignment is, whether the statute of limitations applies to a trust of the nature and character of the one in otuostion. It is contended on the part of the complainant, that this is an express trust, created by the act of the parties, and to such a trust the statute of limitations can never be pleaded.

This principle is well sustained by authority. — Hill on Trustees 263. 264; Lewin on Trustees 611. But while this is true, it is equally true that a trust created by implication is subject to the statute of limitations. Says Mr. Lewin, in the work above cited, “ It is a well known rule, that, as botween cestui que trust and trustee, in the case of a direct trust, no length of time is a bar; for, from the privity existing between them, the possession of the one is the possession of the other, and there is no adverse title.

It has hence been argued that, as the person into whose hands the estate is followed, is also, by construction of law, a trustee, the cestui que trust is entitled to the benefit of the rule, and is not precluded by mere lapse of time from establishing his claim; but the authorities to the contrary are clear and express, and cannot leaye a doubt.” “ It is certainly true,” said Sir William Grant, “that no time bars a direct trust; but, if it is meant to be asserted that a court of equity allows a man to make out a case of constructive trust at any distance of time after the facts and circumstances happened out of which it arises, I am not aware that there is any ground for a doctrine so fatal to the security of property as that would be; so far from it, that not only circumstances where the length of time would render it extremely difficult to ascertain the true state of fact, but where the true state of the fact is easily ascertained, and where it is perfectly clear that relief would originally have been given upon the ground of constructive trust, it is refused to the party who after long acquiescence comes into a court of equity to seek that relief. ”— Beckford v.

Wade, 17 Vesey 97. To the same effect is the language of Lord Redesdale, in the case of Hovenden v. Lord Annesley, 2 Sch. & Lef. 633. The question, then, arises, whether the claim set up by the complainant for the rents is founded upon an express or an implied trust. As to the land ifcsolf, the trust is undoubtedly direct, and was created by the act of the parties; but as to the rents and profits of the land, there is nothing whatever said in the paper which was given by Goldthwaito to'the complainant, on receiving from him a deed for the one half of the premises.

As to these rents, the intestate acquired the character of trustee purely by implication, and as an incident to the express and direct trust created by the parties. Our conclusion, then, is, that the claim set up for rent by the complainant, under the circumstances, is one to which the statute of limitations does apply.— On this subject Mr. Lewin remarks : “ "Wherever there is a statutable bar at law, the same period is by analogy, or rather in obedience to the statute, adopted as a bar in equity.” — Lewin on Trustees 618.

There was, therefore, no error in the decree of the Chancellor, in limiting the demand of the complainant to six years prior to the filing of the bill, deducting the time elapsing between the death of the intestate and the six months after the grant of letters of administration to the defendant on the estate of the intestate. The next assignment of error is, that the court refused to charge the defendant with the amount of rents not accounted for. The proof on this subject before the master was, that the contracts for rent during the period inquired of produced $4950.

Of this sum, the defendant acknowledged to have received the sum of $2248. The defendant showed the further sum of $1200 in his hands, in the shape of notes arising, from the rent of the said promises. But there yet remained the sum of $1351 22, entirely unaccounted for. We apprehend it would not do to say that this portion of the rent contracts was not received by the intestate, because no evidence of it appears upon his books.

After tho rent contracts are proved, fixing the amount at which the property was rented from year to year, we apprehend the burden of proof is then changed to the defendant to show what was or was not received, if he would avoid a liability to account according to the contracts.

In refusing to charge the defendant with the half of this amount of rent entirely unaacounted for, the court below, in our opinion, erred.— It is insisted that, as the bill only calls for an account of what rents were received, this item does not fall within the purview of the bill, until the proof shows they were in fact received.— In our view, the proof does show, prima facie, that the portion of the rents represented by this item was received, and that proof consists in showing the contracts for renting as above set forth.

That proof is sufficient, prima facie, to charge the defendant with the amount, and it rests with him, after it is made, to show that it was not received, or what part, and for what reason it was not received. The court, in our opinion, also erred in not charging the defendant in the account with interest on the money actually received by the intestate from tlio date of such receipt. In the case of Whitworth and Wife v.

Hart et al., 22 Ala. 343, at the last term of this court, wo decided that ££ interest was but a just compensation for the withholding of the principal, and when the principal is ascertained to be due at a particular period, and remains unpaid without a sufficient excuse, interest follows as an incident.” The defendant should, therefore, have been charged with interest on such amount’as was found in his hands, belonging to the complainant, from the date of the receipt of the several items making the aggregate so found.

For the error above noted, the decree of the Chancellor, so far as it militates against the views above expressed, is reversed, and the cause remanded ; and so far as the decision of the court below is in accordance with the views above expressed, the decree is affirmed. It is further ordered that the defendants in error pay the costs of this court. Goldthwaite, J., not sitting.