Hoyle v. Jones , 35 Ga. 40 ( 1866 )

[1] Under the sixth item of Peter Eite’s will, Catharine Hoyle and her children took a j oint estate; no estate tail was created thereby. Jackson vs. Coggin 29 Ga. R. 403.

[2] The Code, Sec. 2872 says: “ If the defendant, or those under whom he claims, has been guilty of a fraud by which the plaintiff has been debarred or deterred from his action, the period of limitation shall run only from the time of the discovery of the fraud;” and see also See. 2647, where similar language'is used. Here all the defendant’s held under Adam Hoyle; he was the executor of Peter Eite’s will; it was his duty to administer the estate according to the terms of the will; he should have paid to Mrs. Jones what was due her under that will; he was her trustee, and bound to act in good faith. Instead of doing this, he set up title to this property in himself; never informed his children of their rights under the will; and complainant never learned, until a short time before instituting proceedings in this case, that the will gave anything to Catharine Hoyle’s children. This concealment on the part of Adam Hoyle, however good his intentions may have been, is in law a fraud, and such as will prevent the running of the statute in his favor, or those claiming under him, against his cestui que trust. This view disposes of several questions made in this case. It is unnecessary to decide anything as to the disability of Mrs. Jones to sue, for under the view which we take of the case, if she had never married, and were in life at this time, she would have a right to maintain this bill; her right to recover depends, not on the disability to sue, but on the fraudulent concealment, by this trustee from his cestui que trust, of a know!edge of her rights. It was his duty to inform her, and assert her rights ; instead of which, he concealed from her a knowledge of the fact that she had any rights at all; and appropriated to his own use the property, to which she was entitled under the will of her grand-fathcr. See Wellborn vs. Rogers, 24 Ga. R. 579 to 581.

[3] Ve think the Court properly instructed the jury, that complainant was entitled to interest on the hire, to be calculated on the amount of the hire due at the end of each year. In Huff & Chambers vs. McDonald, 22 Ga. R. 131, the Court decides, that if one joint tenant, or tenant in common receives and uses more than his share of the joint effects, he is liable to account for at least as much as the legal interest on the amount so received. In Robinson, et al, vs. The Bank of Darien, &c. 18 Ga. R. 107, Lumpkin, J. says: “ The right of the creditors to the rents which accrued on the real estate, during the period the lands were controlled by the Central Bank, would seem to us to be indisputable,' upon the plainest principles of justice. And that interest should be paid on the proceeds of the real estate sold in Georgia, and wpon the annual rents, from the times these sums were respectively received, would seem to follow as a necessary consequence.” See, also, Doonan vs. Mitchell, 26 Ga. R. 479. Certainly the rule that hire is payable annually is one of which defendant’s cannot complain; and when due and unpaid it should bear interest. This is equitable and just.

The view which we have taken renders it unnecessary to say anything upon the charge of the Court below upon the effects of emancipation in this case, except that we see no error of which the defendants can complain. It certainly was as favorable to them as they could legally require.

Judgment affirmed.