Buie v. Buie , 67 Miss. 456 ( 1889 )

Cooper, J.,

delivered the opinion of the court.

The claim of Mrs. Mary Buie, the widow of Gilbert Buie, to the note of Blue & Co., is wholly unsupported by any competent evidence. Blue & Co. were indebted to Gilbert Buie for borrowed money, and he held their note, payable to himself or order. The note was never indorsed by him, and there is no competent evidence from which it can be inferred that he made any disposition of it before his death. After his death Mary Buie, his widow, delivered his papers to those who were by his will nominated executors, and, she says, she informed them of the existence of the note of Blue & Co., and made claim to it by virtue of its delivery to her by her husband a short time before his death in payment of a debt he owed her. It may be that the claim of the widow is a just one, but unfortunately for her, she is without evidence to support it. Her testimony is excluded by express provision of law, because it is to establish her right against the estate of a decedent. No other witness can testify to the fact of the delivery of the note, though one or more testify to having heard Gilbert Buie say he owed his wife for confederate money of hers he had used. It is shown that the transaction from which this supposed debt sprung arose about the time of, if not after, the surrender of the confederate armies and the declaration of peace. But, whether the claim in favor of the wife was or was not a valid one is immaterial, since admitting its validity she shows no right to the note of Blue & Co.

On the facts disclosed, the residuary legatees are entitled to the fund paid into court by Blue, unless the widow has secured a right to it by lapse of time.

As to this fund, we do not see how the statute of limitations can be invoked. Mrs. Buie has never had possession of it, and until it was paid into court by Blue, the debtor, it was a debt due by him by reason of the original loan of money to him by Gilbert Buie. Mrs. Buie delivered up to the makers the original note, and received in lieu of it one payable to herself. But this substituted note was not the debt, nor were the representatives of the estate of Gilbert Buie, by reason of its execution, confined to their action of trover against her for converting the note. The executors of the will of Gilbert Buie might have brought such action, upon taking out letters testamentary of his will, but their failure to take out letters testamentary and to bring such suit.interposes no bar to the right of complainants to resort to chancery for relief. If, after Blue & Co. gave the substituted note to the widow, they had paid the sum due to the true owners, the residuary legatees of Gilbert Buie, such payment would have been a discharge of the debt they owed, notwithstanding the fact that the widow held the note given to her. The debtor has now paid the money into court, and been discharged of further liability by its order. He sets up all the facts known to him, and asks the court to determine to whom the money should be delivered. His payment is of the debt due, and is in discharge of the whole obligation which rests upon him, whether it exists by virtue of the original note or of the substituted one.

The widow has no claim, legal or equitable, to the fund, unless it has arisen by the wrongful dealing with the note through so many years. The lapse of time may protect her from personal responsibility, but cannot operate to transfer to her appellants’ right of action against Blue. The fund in court should have been decreed to appellants.

As to the sums which appellee has collected from Blue, she is protected from liability by lapse of time. The last collection was in 1879. More than ten years have passed since then, and more than six years since the adoption of the code of 1880, and before the institution of this suit. We think the appellee may rely upon the bar of the six years statute of limitations. It is a mistake to assume that a court of equity will convert into a trustee any person who unjustly takes possession of the property of another. If this were so, all persons claiming property under defective titles would be trustees for the true owner. No facts are shown by which Mrs. Buie can be held as trustee ex maleficio, and, as to the money actually collected, the appellants are not entitled to an account.

The court below should have decreed the fund in court to appellants, and otherwise to have dismissed the bill. That decree will be entered here. The appellee to pay the cost of this appeal. The costs of the court below to be paid equally by the parties — appellants and appellee one-half each.