Anderson v. Foster
| Decision Date | 27 November 1900 |
| Citation | 37 S.E. 426,112 Ga. 270 |
| Parties | ANDERSON v. FOSTER et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The fraud which, under the provisions of section 3785 of the Civil Code, will relieve the bar of the statute of limitations, must be of that character which involves moral turpitude, and must have the effect of debarring or deterring the plaintiff from his action.
2. One who aids and assists a trustee in misapplying trust funds with knowledge of his misconduct, is directly accountable to the person injured by such misapplication, although the person thus assisting the trustee does not himself reap the fruits of the misappropriation, but pays the fund over to another, whom he represents. (a) In such a case the person injured by the misappropriation may bring a separate action against each of the persons through whose hands the fund has passed, or join them all in one suit. (b) It is not necessary, in order to charge the person aiding and assisting the trustee in the misappropriation, to show that the trustee is insolvent. (c) That the person injured by the misappropriation may have an action for money had and received against the person to whom the fund was paid will not preclude him from bringing an action against the person aiding the trustee in the misappropriation for the tort thus committed.
Error from superior court, Morgan county; J. B. Park, Jr., Judge pro hac.
Action by C. L. Anderson, as administrator of the estate of A. W Foster, deceased, against F. C. Foster and others. From a judgment entered on a verdict directed in favor of defendants, plaintiff brings error. Reversed in part.
W. R Mustin, for plaintiff in error.
F. C. Foster and E. W. Butler, for defendants in error.
Anderson, as administrator of A. W. Foster, brought suit against F. C. Foster and E. W. Butler, making in his petition substantially the following allegations: F. C. Foster was the executor of A. G. Foster, E. W. Butler was the executor of Joshua Hill, and the plaintiff's intestate was a son and legatee of A. G. Foster. After the death of plaintiff's intestate, F. C. Foster, as executor, collected a sum of money belonging to the estate of his testator, to a specified part of which plaintiff's intestate was entitled. Butler, as executor of Hill, had obtained a judgment against F. C. Foster and A. W. Foster; and F. C. Foster, instead of paying to the plaintiff, as administrator of A. W. Foster, the amount due his estate, paid the same to E. W. Butler, to be applied as a credit upon the judgment held by him, as executor of Hill, against A. W. Foster; and Butler, with full knowledge of the fact that there was a duly-appointed administrator upon the estate of A. W. Foster, and that F. C. Foster had no right to appropriate the sum in his hands to the payment of the debts of A. W. Foster, received the same, and applied it as a credit on the judgment above referred to. At the time this was done, the estate of A. W. Foster was insolvent, and there were debts due by the estate of higher dignity than the debt due to Butler as executor of Hill. It is alleged that the money was collected by Foster in January, 1895, but the date on which the share of A. W.
Foster was paid over to Butler is not distinctly alleged. It was charged that F. C. Foster and Butler were joint tort feasors and as such liable to the plaintiff for the amount paid by F. C. Foster to Butler, with interest thereon from the date the same was paid. By an amendment to the petition it was alleged that the first intimation the plaintiff had that F. C. Foster had in his hands the fund in question was about November 15, 1895; that the plaintiff was a nonresident of Morgan county, being a resident of Fulton county; and that immediately upon receiving this intimation he wrote to F. C. Foster, requesting information on the subject. Having failed to receive a reply, he wrote again, but this letter elicited no response. In April, 1896, plaintiff wrote to Butler, who at the time was the law partner of F. C. Foster, asking information of him on the same subject, the plaintiff having heard that F. C. Foster had paid over to Butler A. W. Foster's share in the fund collected. Butler immediately replied in a letter dated April 24, 1896, stating that the money had been paid over to him as executor of Hill; and this was the first positive information that the plaintiff had on the subject. It was alleged that the plaintiff was diligent to discover the fact that the money had been fraudulently paid over to Butler by F. C. Foster, and that he could not have discovered it sooner by the exercise of ordinary diligence. The defendant Butler filed a demurrer to the declaration upon the...
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