Hairston v. Sumner

• Decision Date: 21 May 1895
• Citation: 106 Ala. 381,17 So. 709
• Parties: HAIRSTON ET AL. v. SUMNER.
• Court: Alabama Supreme Court

17 So. 709

106 Ala. 381

HAIRSTON ET AL. v. SUMNER.

Supreme Court of Alabama

May 21, 1895

Appeal from chancery court, Green county; W. H. Tayloe, Chancellor.

Bill for partition by Ada H. Sumner against Marie V. Hairston executrix of R. P. Hairston, deceased, and others. From a judgment overruling a demurrer to the bill, defendants appeal. Affirmed.

The bill was demurred to on the ground, among others, that the claims of the complainant were barred by the statute of limitations of three years. The chancellor overruled this demurrer interposed by the respondents, and from this decree the present appeal is prosecuted, and the same is assigned as error.

Seay &amp De Graffenried, for appellants.

White &amp Howze and McQueen & Harwood, for appellee.

COLEMAN J.

The bill was filed by Ada H. Sumner, appellee, the object of which was to effect a partition of certain lands owned by her and her brother, R. P. Hairston, as tenants in common. It avers that R. P. Hairston has been in the possession of said lands since the year 1884, and that he has collected a large sum of money as rents, and used the same for his own purposes. The bill prays for an accounting for the rents. The appellants, who have succeeded as executrix, devisee, and heir to the interest of R. P. Hairston, demurred to the bill assigning several grounds therefor.

The only question raised by the demurrer, which is insisted upon is whether the statute of limitations of three years is a bar to the claim for rents which accrued and were past due more than three years before the filing of the bill. The statute applies only to actions brought "to recover money due by open or unliquidated account." There is no element of "an open or unliquidated account" in the indebtedness of one tenant in common to his cotenant for rents collected. It is more in the nature of an action for money had and received by one person to the use of another, or that of an implied trust, rather than an express trust. When the amount of money thus received has been ascertained, the plaintiff's claim is neither open nor unliquidated. In such cases there is nothing left open for future adjustment or agreement, and a quantum meruit valuation cannot arise. There may be offsets or equitable charges which a chancery court should allow in reduction of the amounts received, but matters defensive cannot affect the character of complainant's claim. We express no opinion as to some of ...