Stanton v. Helm , 87 Miss. 287 ( 1905 )

Truly, J.,

delivered the opinion of the court.

The testimony of Stanton, the appellant, falls clearly within the inhibition of the rule announced by Code 1892, § 1740. This is a suit which he has instituted to establish and enforce a claim against the estate of a decedent, which originated in the lifetime of the deceased. Manifestly it is not competent to prove such claim by his own testimony. This rule is so well settled that any citation of authority to sustain the conclusion is thought unnecessary. Nor do we understand that able counsel for appellant seriously controvert the correctness of this proposition, but they rely upon other testimony in the record to make out the case. With the deposition of Frederick Stanton left out of consideration, the cause of the appellant rests on the testimony of his wife, in connection with certain minor circumstances of slight probative force detailed by other witnesses. Giving to the testimony of Mrs. Virginia Stanton implicit credence, the following facts may be considered as proven: The purchase of the land in controversy by Thomas E. Helm, in 1877, was in pursuance of an agreement between him and Frederick Stanton. This agreement created an express trust on the part of Helm to reconvey to Stanton under certain circumstances. Rut this is all. Here the competent testimony for the appellant ends. In view of the entire record, this is not enough to make out his case. The irresistible preponderance of the evidence demonstrates that the original agreement, whatever its exact terms may have been, was either annulled by subsequent settlement or openly repudiated by Helm. The conduct of all parties and all the facts in proof are more readily reconciled on the theory that at the close of the year 1877 a complete settlement was amicably reached, ail differences adjusted, and the agreement to reconvey canceled. This conclusion is more in harmony with the relations proven, by correspondence and the unbroken course of business dealings, to have existed between the parties for more than a quarter of a century, than to assume from a series of trivial and disconnected circumstances that Thomas E. Helm had deliberately deceived, oppressed, and defrauded an unfortunate kinsman, whom the record shows he had assisted at many critical junctures. -

However this may be, certain it is that the alleged trust agreement was, after the fall of 18o77, repeatedly and openly repudiated by Helm, by many acts adverse to any claim by Stanton, and antagonistic to the idea that he-recognized that his title to the land in question was clouded by any conditions. An open repudiation of a trust by the one attempted to be charged therewith, if plainly brought to the notice and knowledge of the parties in interest, is sufficient to place in motion the statute of limitations, whether the trust be express or implied. Cooper v. Cooper, 61 Miss., 696. In the case of an express trust, no statute of limitations runs so long as the trust relation is acknowledged or the trust agreement subsisting, because, so long as this condition exists, no cause of action has accrued. But in case of a trust “not cognizable by the courts of common law,” like the one now under consideration, whether the same be express or implied, a cause of action does accrue, and the statute of limitations begins to run immediately, when by express declaration of repudiation to them, or act adverse to the recognition and existence of tbe trust relation brought to their knowledge, the parties in interest are actually advised that the trust has been repudiated. From the moment the parties claiming an interest by virtue of a trust, even though express, are actually notified, by declaration or adversary act, that the trust is denied— from that moment the holding or possession becomes adverse to their claim. Code 1892, § 2763; Cooper v. Cooper, supra.

It is unnecessary to enumerate the many and various incidents of open, adverse assertion of sole and hostile title by Helm, all of which were with the personal knowledge of the appellant. The record abounds with such acts utterly inconsistent with the idea that Helm acknowledged the existence of any trust relation between himself and Stanton. The sale of a half interest in the trust estate in 3.877 to Green, with the full knowledge of Stanton, and his subsequent delivery of possession without' protest or objection, and the destruction of the letter, which it is now claimed contained a recognition of the trust, in the presence of Stanton and his wife, are sufficient, without a detailed recitation of other equally potent facts, to demonstrate the absolute repudiation by Helm of any trust, express or implied. And as these acts all occurred more than ten years before the institution of this proceeding, it follows that any right of recovery which Stanton might originally have had was barred.

The decree is affirmed.