Ragland's Executors v. Morton , 41 Ala. 344 ( 1867 )

BYRD, J.

George O. Ragland having been appointed administrator de bonis non of the estate of David Morton, on the 6th December, 1838; and the bill in this case having been filed on the 6th of August, 1860, against the executors of the will of Ragland, for a settlement of his administration upon the estate of Morton; and the executors having interposed a demurrer to the bill, and assigned the lapse of time as one of the grounds of demurrer, we are of opinion that, under the allegations of the bill, and the amendments thereto, the demurrer should have been sustained.—Nimmo v. Stewart, 21 Ala. 692; Johnson v. Johnson, 5 Ala. 90 ; Worley’s Adm’r v. High, 40 Ala.

The fact that Ragland removed the slaves from this State, to the State of Tennessee, and kept them there for several years, does not relieve the case from the influence of the rule recognized as established in this State in the case of Austin v. Jordan, (35 Ala. 642,) and the cases therein cited. See, also, the case of Bone and Wife v. Jordan, decided at the last term.—40 Ala.

The bill, when construed by the rules applicable to pleadings in equity, does not show a continuing trust on the part of Eagland, nor any act or admission of his, within twenty years next preceding the filing of the bill, of such a trust, or any trust, which would bring the case within any exception to the rule, or relieve the case from its operation. If there are any acts, or admissions of Ragland, which would do so, they should have been averred in the bill, or by way of special replication.—Maury v. Mason, 8 Porter, 211 Johnson v. Johnson, supra.

We intimate no opinion upon the question, whether the case would be relieved from the influence of the rule alluded to, if the appellee had set out the contents of the will of Bagland in his bill, or had set up the partial settlement, made in 1844, as a reply to the objection of lapse of time. We think it safer not to decide the question, until it is properly raised on the record, and argued.

The decree of the chancellor, overruling the demurrer to the bill, must, upon the ground noticed, be reversed.

It is unnecessary for us to consider any other question raised by the assignment and cross assignment of errors, in the present condition of the record; and we prefer not to express an opinion upon them, in advance of their proper presentation upon the record; for it may be, that this case will have to go off, in the end, on the point of lapse of time.

It may be that appellee can amend his bill, so as to bring his case within some exception to, or relieve it from the influence of, the general rule established by the adjudications referred to in the cases of Austin v. Jordan, and Bone and Wife v. Jordan, supra. To enable him to take such course as he may be advised, we will not render a decree dismissing the bill, but will reverse the decree of the chancellor, for the error pointed out, and remand the cause.