Rembert v. Key , 58 Miss. 533 ( 1880 )

Chalmers, C. J.,

delivered the opinion of the court.

The bill which is demurred to shows this state of facts : Mrs. M. J. Stewart purchased real estate with her children’s money, taking the deed in her own name. In 1868 she sold it by title-bond to Mrs. Fannie Key, receiving one-half the purchase-money in cash, the other half to be paid in twelve months.

Mrs. Key died in 1870, after the maturity of the deferred sum, and without having made payment of it. There has never been any administration upon her estate. In 1874 Mrs. Stewart executed a deed whereby she conveyed the real estate in question, with some other parcels, to one Bullen, as trustee, for her children, reciting in the conveyance that it was made in consideratiofi of indebtedness due from herself to her children .

In 1876, Bullen filed a bill against the heirs of Mrs. Key to subject the property sold her to the payment of the unpaid purchase-money.

To this bill a demurrer was iuterposed, setting up the Statute of Limitations and a want of equity upon the face of the bill. This demurrer was sustained and the bill dismissed, and from this decree no appeal was taken. The present bill, which seeks substantially the same relief as the former, is filed by the children of Mrs. Stewart, who have now with one exception, come-of age, and sets forth the above facts. It is demurred to as showing upon its face that the debt sought to be enforced is barred by the Statutes of Limitations, and that the matters in issue are concluded by the former adjudication.

The defence of the Statute of Limitations is manifestly bad, it appearing from the bill that the debt was due in Mrs. Key’s lifetime; that she died before the bar attached, and that no administration has ever been had upon her estate. Boyce v. Francis, 56 Miss. 573 ; Code 1871, sect. 2162.

Neither is the plea of res adjudícala good. Even if the debt sought to be collected here had been embraced in the conveyance to the trustee, it is questionable whether a suit brought by him to collect it, in the absence of any authority, express or implied, to make such collection would be binding on the cestuis que trust, who were not parties to it, since the general rule is, that to the maintenance of such suits it is essential that the cestuis que trust be joined as parties, or in some way participate in their prosecution. Edw. on Parties, 158 ; 1 Dan. Ch. Pr. (5th Am. ed.) 220 ; 2 Peny on Tr., sect. 873.

But in the conveyance to Bullen no allusion is made to the debt sought to be collected here. The legal title to the land which protects that debt is conveyed to him, and, therefore, in any proceeding to subject the land to the debt he is a necessary party, but in the debt itself he has neither a beneficial nor technical iuterest, nor any right to collect it. Manifestly, therefore, his futile attempt to do so by a proceeding to which those entitled to it were not parties, does not estop them.

Decree reversed, demurrer overruled', and sixty days given to answer.