Jolly v. Miller

• Decision Date: 14 December 1906
• Parties: JOLLY v. MILLER.
• Court: Kentucky Court of Appeals

98 S.W. 326

124 Ky. 100

JOLLY v. MILLER.

Court of Appeals of Kentucky.

December 14, 1906

Appeal from Circuit Court, Breckinridge County.

"To be officially reported."

Suit by Huston H. Jolly against Mathias Miller to set aside a deed and compel an accounting. Judgment for defendant, and plaintiff appeals. Affirmed.

Mercer & Mercer, for appellant.

Murray & Murray, for appellee.

LASSING J.

In July, 1888, James Miller, a wealthy bachelor, and a member of one of the most prominent families in Breckinridge county died, leaving no will, and his large estate passed by descent to his brothers and sisters and the children of such as were dead, as his only heirs at law. Mathias Miller, one of his brothers, was appointed and qualified as administrator of his estate, and he was also, by writing signed by the heirs at law of the estate of James Miller, deceased, authorized to compromise any and all claims belonging to said estate with the debtors, when, in his judgment, it would be to the best interest of said heirs so to do. This authority to adjust and compromise claims was given him on March 9, 1889, and he was thereafter, on the 15th day of December, 1891, given a power of attorney by all the heirs of James Miller, deceased authorizing him "to sell and convey in fee simple, and by deed of general warranty, for such price and upon such terms of credit, and to such person or persons, as he should think fit, the whole or any part of the lands and real estate that belong, or may hereafter belong, to the estate of James Miller, deceased. Said lands and real estate are situated in the counties of Breckinridge, Hancock and Ohio." Acting under his power and authority as administrator and agent Mathias Miller proceeded with the settlement of the estate until 1892, when Huston H. Jolly, on the 20th day of February of that year, sold and conveyed by deed to him, for the sum of $240 cash, his entire interest in and to the estate of James Miller, deceased, which consisted of an undivided one sixty-fourth interest, and is described in the deed as follows: "All my interest in the estate of James Miller, deceased, consisting of lands, personalty and mixed estate of every kind, character and description. Said lands are situated as follows: About 430 acres on Sinking creek, in Breckinridge county; about 250 acres near Cloverport, same county; about 250 acres near Hardinsburg, same county; about 94 acres known as the 'J. Morris land,' same county; about 86 acres known as the 'Pulliam land,' near Hardinsburg; about 135 acres near Ruth's Station on the L. H. & W. R. R., same county; about ______ acres near Glendeane Station, same county; about 117 acres known as 'Newman land,' same county; about 100 acres known as 'G. Dowell land,' same county; about 85 acres known as 'William Hinton land,' same county; about 95 acres known as 'Fisher land,' near Cloverport, same county; about 30 acres near North Fork of Rough Bridge, same county; about 40 acres near G. Lawrence, same county; about 125 acres near J. Matthews; about 40 acres near Sam Johnson's; about 125 acres known as 'Fraize Horsley farm'; about ______ acres near Bewleyville; about 3 lots in Hardinsburg; 3 lots in Cloverport. The following in Hancock county: About 152 acres known as the 'Farmer land,' and about 340 acres known as the 'Pate land,' and all other lands that said decedent may have owned at his death, or that may since have been purchased for the benefit of the estate." Mathias Miller, about the time of this conveyance, bought out several of the other heirs at law of James Miller, deceased. He continued in the management of the business of the estate, making settlements with the county court from time to time, until the 1st day of January, 1902, when, having been elected county judge of Breckinridge county, he resigned his trust as administrator of the estate of James Miller, deceased, and was succeeded by James W. Miller, a nephew, who is now acting as administrator, and is proceeding with the settlement of the estate. On April 26, 1904, Huston H. Jolly filed his suit in the Breckinridge circuit court seeking to have the deed of conveyance from himself to Mathias Miller rescinded and canceled, and to compel Mathias Miller to account to him for such sums of money as he would have received in the settlement of his uncle James Miller's estate, subject to a credit of $240, the amount which he had received at the date of the execution of said conveyance. He alleges in his petition that the deed of conveyance was procured from him through fraud, deceit, and misrepresentations of his uncle Mathias, in whom he had unlimited and absolute confidence. The defendant demurred to the petition, and, the demurrer being overruled, he answered, admitting his qualification as administrator, his appointment as agent to settle and adjust all claims and sell and convey real estate, and admitting the purchase of plaintiff's interest in the estate, but denying that the conveyance was procured through fraud or misrepresentations, or that plaintiff had not been paid the full value of his interest in the estate, and pleading the statute of limitations in bar of plaintiff's right to recover. Plaintiff demurred to the plea in bar, and, the demurrer being overruled, plaintiff filed his reply traversing the affirmative allegations of the answer. Thereafter plaintiff offered to file an amended petition, which he was, over the objection of the defendant, permitted to file. A demurrer was interposed to this petition as amended, and, pending the demurrer, answer was filed, to which a demurrer was interposed, and, pending this demurrer, a reply was filed traversing the affirmative matter in the answer to the amended petition. Defendant, having withdrawn this answer to the amended petition, renewed his demurrer to the petition as amended, and the court, upon final hearing, sustained this demurrer to the petition as amended, and, plaintiff declining to plead further, the petition was dismissed, and plaintiff appeals.

There is but one question in this case raised by the pleadings which it will be necessary to determine, and that is, is the plea of the statute of limitations interposed by the defendant a bar to plaintiff's right of recovery? It is the contention of appellee that, immediately upon the execution of the deed by appellant on February 20, 1892, the tatute of limitations began to run, and that upon that date appellee ceased to act as administrator of the estate of his deceased brother for the benefit of appellant, and ceased to act as agent for appellant in the settlement of the estate of James Miller, deceased; and that appellant's cause of action, if he had any, accrued to him at once upon the execution and delivery of the deed by him to his uncle, Mathias Miller, and the payment to him by Mathias Miller of the $240 consideration for said conveyance. Appellant contends with much earnestness and zeal that the statute of limitations did not begin to run against him upon the execution of said deed, and has not yet begun to run against him, and will not begin to run until after Mathias Miller, or James W. Miller, who succeeded him, has made a final and complete settlement of his accounts as administrator of the estate of James Miller, deceased; that Mathias Miller occupies a trust relation toward appellant, and that he cannot deal with him to the disadvantage of his cestui que trust; and that the trustee cannot repudiate the trust and put the statute of limitations in force before he has made a full, final, and complete settlement of his trust estate.

Appellee insists that the sole question for determination is whether or not the trial court erred in sustaining the demurrer to the petition as amended, and in dismissing the petition upon plaintiff's failure and refusal to plead further; while appellant contends that, as the entire...