McDonand v. Sims , 3 Ga. 383 ( 1847 )

By the Court.

Lumpkin, J.,

delivering the opinion.

The facts in this case are somewhat.entangled. It rests, however, upon a single point. Frederick Sims made and delivered to Charles J. McDonald, his promissory note for eight hundred dollars, bearing date the 15th of July, 1841, payable ninety days after -date to the order of McDonald at the Marine and Fire Insurance Bank of the State of Georgia. McDonald indorsed this note to said bank; upon failure of payment at'maturity, the bank sued and recovered judgment against Sims, on the note; and after a return of nulla bona by the sheriff, the execution was assigned to McDonald, he having advanced to the plaintiffs the full amount due thereon. McDonald caused this ji. fa. to be levied on three slaves Aaron, Ellen and Hannah, as the property of Sims, which were claimed by Henry G. Ross as trustee of Susan Sims the wife of the defendant. Pending this claim, McDonald filed his bill on 'the chancery side of the court, against Frederick Sims, Susan Sims his wife, and her trustee Henry G. Ross, alleging that the said Susan Sims, then Susan Wells, as the widow and executi'ix of Nicholas W. Wells, her former husband, was extensively involved, in litigation, growing out of the various business transactions of the said Nicholas W., in his .life time, which are enumerated in the bill. That the said Susan, as such executrix, engaged the professional services of the complainant, not only in the various cases specifically set forth, but in many others both in the Superior and Inferior courts, in which the estate of her late husband was interested, and also in advising and assisting her as 'to the proper management of the said estate generally; and that for all of said services, the complainant was well entitled to have eight hundred dollars, or some other large sum.

That the said Frederick Sims intermarried with the said Susan Wells, and by virtue thereof possessed himself of the assets of the estate of the said Nicholas W. Wells, in the hands of the said Susan at the time of said marriage ; and that the complainant was employed as counsel to defend a case brought against said Sims, by one William T. W. Daniel and his wife Martha, for a negro girl, which they claimed as a bequest under the will of the said Wells. That no sum was agreed upon for his services in this lhst case, but that he well deserved to have therefor the further sum of fifty dollars.

That in the month of October, 1832, prior to the intermarriage of the said Frederick and Susan, .they entered into a marriage agreement. The articles recited that a marriage was about to take'place between the parties; that said Susan was possessed of a considerable estate, real and personal, and that she was involved both in debt and litigation ; and they provided that so soon as the debts of his intended wife were paid, for which purpose he was authorized to sell any portion of her property, and likewise so soon as all litigation in relation to her property was ended, and all expenses paid growing out of said litigation, and a suitable compensation allowed the said Frederick Sims for his time and trouble, and attention to the settlement of her affairs, that then the residue of said property was to be settled upon the said Susan, by Sims, upon the terms stipulated in this ante-nuptial contract. The marriage articles were not recorded until September, 1841, and prior to the registration thereof, Sims had become greatly embarrassed, and indebted to an amount more than sufficient to exhaust the whole of said property. He then made a conveyance in trust to Henry G. Ross of the property which he got by his wife, and of the negroes levied on, among the rest.

Tlie bill charges that the eight hundred dollar note given by-Sims to McDonald was in part payment and satisfaction of his account against Mrs. Sims for professional services. It maybe well enough to remark, that the deed of trust executed by Sims to Ross, on the 27th of September, 1841, makes no allusion at all to the articles of marriage, and on the contrary recites, that Sims was seised and possessed of the property therein conveyed, in his own right.

The prayer of the bill is, that an account may be taken of the professional services rendered, by the complainant, and that whatever is found due, may be decreed to be paid out of the trust property; and that the slaves levied upon by the execution, and claimed by the trustee, be sold and applied to the extinguishment of complainant’s claim.

The answer of Sims and wife, admitted that a portion of the services set forth in the bill were rendered; a part they denied. Sims utterly denied that the eight hundred dollar note was given, either in whole or in part, for said services; but alleges that it was founded upon another and a different consideration altogether. And by way of plea, the defendants insist upon the Statute of limitations in bar of the complainant’s account for professional services.

At May term, 1847, of the Superior Court of Bibb county, Judge Floyd presiding, the claim case and bill were both submitted4 to a jury at the same time, and after the testimony had closed, the Court delivered the following charge to the jury, to wit:

“ That they must bear in mind to keep the two cases distinct ; that one was a claim case seeking to subject the property levied on to the payment of the execution given in evidence; the other was a cause in equity, alleging that the note on which the judgment was founded, was given for professional services, for which, complainant contended, the property levied on was bound as trust property, in preference to older judgment-creditors, and praying that if the property was found subject, the proceeds of the sale thereof should, by their decree, be applied to its payment; or that an account should be taken of the professional services of complainant rendered, as charged in the bill, and the amount decreed, and the payment thereof decreed from the trust property; that they would first direct their attention to the claim case ; that the property was levied on as the individual property of Frederick- Sims, and that unless they should be of opinion that it was his individual property, it could not be found subject at law, and that for the purpose of coming to a conclusion on this point, they must look into the testimony that was given; that it all depended, in the opinion of the Court, upon whether the property levied on, was the property embraced in the ante-nuptial articles of agreement entered into between Mrs. "Wells and Mr. Sims. If it was that property, it was not subject; and for the purpose of ascertaining whether it was the same, they might refer to the allegations of complainant’s bill, in which it was so alleged, and those allegations bound him. That if they believed the property was the individual property of the defendant, they must find it subject. And, furthermore, if in considering both the claim and the case in equity, they were satisfied from the testimony that the consideration of the note was one of the debts, the payment of which was intended to be secured by the ante-nuptial articles, and that the property levied on was the property of Mrs. Sims before the marriage, they ought to decree it subject to the execution, inasmuch as it was a fund set apart to Sims wherewith to pay the debts with which he would become chargeable by the marriage. The Court then proceeded to charge the jury on the bill in chancery, that if they should not find the property subject to the execution as Sims’ individual property, they would proceed to ascertain, under the bill, whether the consideration of the note was for professional services rendered in the litigation, for the payment of which provision was made in the ante-nuptial articles of agreement. That the complainant had so alleged it, and the defendants had denied it in the answer; that as far as the answer was responsive to the charge in the bill, they were evidence for the defendants, unless contradicted by two witnesses, or one witness and circumstances suporting his evidence; that the answer might be impeached by its inconsistency, as well as in the manner before stated ; but that the jury must inquire if the complainant had submitted any evidence proving the consideration of the note to have been for these services, and if he had not, they must decree for the defendants on that ground.

“ The complainant then prays, that an account of his professional services may be taken, and payment decreed from the trust property. To this part of the complainant’s case the defendants have pleaded the Statute of limitations, and, in the opinion of the Court, the statute presents a complete bar to the complainant’s demand. If this was an action at law brought by complainant against Sims and wife, for these services, the statute would bar the' claim; and the statute is equally a bar in equity as at law.

“But, there is a point, (continued the Court,) on which this case must turn. The marriage articles entered into by Mrs. Wells and Mr. Sims, constitute the latter a trustee for the payment of her debts, contracted before her intermarriage with Sims; and if the note was given for a debt of that description, they must decree the sale of the property, either under the execution or under their decree, and order the amount to be paid on the execution.”

To this charge, the complainant in the bill excepts, on three'1' grounds:

1st. He contends, that the Court erred in instructing the jury that if the property levied on belonged to Mrs. Sims before marriage, it was not subject to the execution against Sims — it being protected by the marriage articles and the settlement subsequently made in pursuance thereof.

2. In holding, and so charging the jury, that the allegations in the bill were evidence against the complainant.

3. By charging, that the complainant’s demand for professional services was clearly barred by the Statute of limitations.

In the main, we are of opinion that the charge was not only [l.J fair, but as favourable to the complainant ás he was entitled to ask. Upon one point we are inclined to think that there was error in the instructions; and as it is material to the issue, and must ultimately control the case, we shall confine our consideration to that. It is, as to the applicability of the Statute of limitations to the complainant’s account for professional services.

And I remark, that it will be found upon examination of the numerous cases upon this doctrine, that there is great ground for embarrassment, arising from the apparent contradiction of the cases. v

I believe that it has'always been conceded, since the Statute of Jac. I. was enacted, that the Statute of limitations was a good plea in equity as well as at law. 1 Ch. R. 38; 1 Ch. Cas. 102. The doctrine has uniformly been, that though the courts of equity were not within the words of the statutes, the time presented by them was adopted by analogy, as a fit and just period for a bar in equity of analagous claims. The difficulty in this case does not arise, therefore, from the fact that this claim for professional services, to which the statute is pleaded, is presented on the chancery side of the Court.

[2.] The question to he decided here is, what kind of trusts are withdrawn from the operation of the Statute of limitations, and whether this case comes-within the rule. And I must confess, that after the most extended research which my time and library would afford me, I find great confusion and marked inconsistency in the numerous adjudications upon this point. In one thing, however, they all agree. It is, that whenever there is an express trust created by writing, either deed or will, one over which the courts of equity have an original, exclusive and peculiar jurisdiction, such trusts are not subject to the Statute of limitations. 1 Brow. 554; 3 P. Wills. R. 310; 17 Vesey R. 87; 2 Sch. & Lef. R. 630; 20 Johns. R. 516.

’ The only remaining inquiry then is, whether this be such a trust. A part of the services of McDonald for the estate of Wells, were rendered before, and a part after, the intermarriage of the widow and executrix with ,Sims. The marriage articles refer to the'fact, that Mrs. Wells was involved in debts and litigation. These debts were to be paid, for which puipose Sims was authorized to sell any portion of her property that he might see fit. And they further provided, that so soon as all litigation in regard to her affairs should be ended, and all expenses paid, and a suitable compensation allowed to Sims for his time and trouble in attending to this business, he was then to settle on his intended wife, and not before, through the intervention of trustees, the property which hey got by her. Does not this amount to an express provision for the payment of McDonald’s claim out of this property, which has since been conveyed by Sims to Ross in trust for Mrs. Sims 1 Could Sims have been compelled to make this conveyance until this demand was paid 1 and, having made it voluntarily before this claim was satisfied, does not the lien follow the property and attach to it in the hands of Ross 1

I presump that no argument is needed io show, that where a trust is created for the benefit of a third person, though without his knowledge, yet he may afterwards affirm it and enforce the execution of it. Moses vs. Murgatroyd, 1 Johns. Ch. R. 473; Cumberland vs. Codrington, 3 id. 261; Shepherd vs. McEvers, 4 id. 136.

Is there any remedy at law adequate to the exigency of this case 1 Is it not a direct and subsisting trust for the benefit of McDonald to the extent of his demand 1 This is no attempt to render the statute a dead letter, by changing the forum ; by substituting a bill in equity for an action of assumpsit or account. On the contrary, it would appear to be one of those matters exclusively cognizable in equity, and where suitable redress could be administered no where else.

Sims expressly denies, in his answer to the bill, that his pote of $800 was given in liquidation of the complainant’s account. Even if it had been; unless it were agreed at the time to be taken in payment, it would constitute no obstacle to the present proceeding. It is not even pretended by any of the defendants, that McDonald has ever been paid. Why, then, should not this trust property be made liable for debts, not contracted merely for its use, but for its very existence 1 Outlaw greatly favours liens, and we hold that it would he dangerous, if not destructive, not to trust estates merely, but to the best interests of society, to permit this claim, under the law and the circumstances' of this case, to be defeated.

Upon this ground, then, the judgment of the Court below must be reversed.