Berry v. Pierson , 1 Gill 234 ( 1843 )

Archer, J.,

delivered the opinion of this court.

Exceptions, in pursuance of the act of 1832, ch. 302, have been taken to the sufficiency of the averments in the bill, to charge John E. Berry, the present appellant, with the sum decreed against him.

The questions, therefore, which have been raised in this court against the sufficiency of the bill, are open for our consideration.

The bill and its amendment have been filed manifestly with the design of compelling the specific execution oí a contract, in obtaining from John T. Berry the balance of the purchase money due from him for the purchase of a tract of land from Benjamin Berry. There is not only no allegation, but no intimation in the bill that any of the purchase money has come into the hands of John E. Berry, either as executor of Benjamin Berry or otherwise, and therefore no foundation whatever furnished for any decree against him for any portion of the purchase money. Whatever may be the proof, no decree, but upon proper and corresponding allegations, can be passed. The adherence to this familiar principle is necessary to prevent surprise and consequent injustice. The decree must therefore, upon this ground, be necessarily reversed.

That upon proper allegations, which the facts of the case would have justified, the Court of Chancery would have had jurisdiction to have decreed the payment over to the parties entitled, their proportion of the purchase money, we entertain no doubt. The right to the purchase money is claimed by John E. Berry, as residuary legatee of Benjamin Berry, and it was proper, therefore, that he should be a party to the controversy, that full and complete justice might be administered to all the parties interested. It was necessary for the safety of the vendee, who was about to be compelled to pay the purchase money, that all the contested rights to the purchase money should be adjusted.

We apprehend there is sufficient proof in the record of the receipt of the sum of money, part of the purchase money, by John E. Berry, which is stated in account B. His answer admits the receipt of large sums of money, which he asserts belongs to him as residuary legatee of Benjamin Berry, and in account A, it is stated, that there was paid to John E. Berry, one of the executors of Benjamin Berry, as per receipt, filed 16th August 1829, the sum of $791.92. The ratification of this account was had by consent of John E. Berry and the other parties to the case, which, we apprehend, constituted sufficient evidence of the receipt of the money.

To the ratification of account B, John E. Berry has excepted, and among other reasons, that the claim against him is barred by limitations. It is no objection to this defence, that it was not taken in the answer, because, as we have seen, the bill gave him no intimation that any claim would be made against him, by any allegation contained therein, and the defence was taheñas soon, as by the proceedings he had notice that any claim was to be made against him.

Limitations, however, it is said, constitutes no defence. The money was received in 1829, and the bill was filed in 1835. Thus a period of six years had elapsed from the receipt by John E. Berry, of the purchase money with which he is attempted to be charged and the filing of the bill. The lapse of such a period, as would bar at law, an action for money had and received, would, by analogy, bar this claim in equity. It is true that John E. Berry, in the receipt of this money, might be considered as a quasi trustee, and as having received it for the use of those to whom it belonged, but he was not acting under a continuing or express trust, but his duty was to pay it over immediately on its receipt, and an action at law might have been maintained for its recovery; the statute ought therefore to be considered as running from the time of the receipt of the money.

The rights acquired to this purchase money were by assignment, and not by last will and testament. The admission of the parties is, that the devise of the land was, with the view of confirming the claim under the assignment. The claim, therefore, does not partake of the character of a legacy, so that limitations would not attach. Limitations, then, in our view, being a bar to the claim against John E. Berry, and such defence having been interposed, we deem it fruitless to remand the cause to the Court of Chancery for further proceedings.

So far, therefore, as the decree affects the appellant, (except, in so far as the same was passed by consent,) it is reversed.

DECREE REVERSED IN PART.