Smith v. Ricords

• Decision Date: 31 March 1873
• Citation: 52 Mo. 581
• Parties: WILLIAM A. SMITH, Appellant, v. ELLEN RICORDS, Administratrix of JAMES B. RICORDS, Respondent.
• Court: Missouri Supreme Court

52 Mo. 581

WILLIAM A. SMITH, Appellant,

v.ELLEN RICORDS, Administratrix of JAMES B. RICORDS, Respondent.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

C. C. Whittelsey, for Appellant.

The statute of limitations does not run in favor of a trustee, until denial of trust or something done in breach thereof.

If an attorney procure a judgment in his own name and collect the money, there is a cause of action, and he may avail himself of the protection of the statute. (Johnson vs. Smith, 27 Mo., 591.) But until he collects the money there is no cause of action to be barred. If the attorney collect the money ten years after obtaining judgment, the action for account, or money had and received, then first accrues, and the statute then only commences running. (Rabsuhl vs. Lack, 35 Mo., 316; State vs. St. Gemme, 31 Mo., 230.)

Cline, Jamison & Day, for Respondent.

This is not a continuing trust, and is barred by the statute of limitations. (Gen. Stat., 1865, Chap. 191 §§ 9,10; Stafford vs. Richardson, 15 Wend., 302; Williams vs. Carpenter, 42 Mo., 327, and brief of Glover & Shepley therein. Campbell's Adm. vs. Boggs, 48 Penn. St., 524.)

ADAMS, Judge, delivered the opinion of the court.

This was an action in the nature of a bill in equity, to declare and enforce a trust in a judgment obtained by the defendant against one Francis Watkins, on the ground that the judgment obtained by the administratrix, was based upon a judgment obtained by the intestate, and that judgment was founded upon a note indorsed or assigned to the intestate for collection merely, and not for any consideration whatever. The note referred to was executed 7th August, 1854, and due from date for one thousand dollars. In 1855 the plaintiff removed to California, and before removing indorsed and delivered the note to the intestate for collection.

The indorsement on its face appeared to be for value received. The intestate brought suit in his own name on this note so indorsed to him, and recovered a judgment thereon January 6, 1857, for $1,145, and costs. The intestate died in 1863, and defendant became his administratrix, and, according to the statute, gave due notice of her letters of administration.

The judgment so recovered by the intestate was not inventoried by the administratrix. But in 1869, she as administra trix instituted suit on that judgment against Watkins, in the St. Louis Circuit Court, and on March 20, 1871, recovered judgment thereon against Watkins for $2,131.11, and costs.

The plaintiff after his removal to California remained absent from the State from 1855, to March 1871. The defendant set up the statute of limitations of ten years, five years, and the limitation law of three years under the administration law of 1855.

Judgment at Special Term was rendered in favor of the defendant, which on appeal to General Term was affirmed, and the plaintiff has appealed to this Court. It is evident from this record, that the main point is, whether the plaintiff was barred by the statute of limitations. It may be conceded, that the facts of the case constituted...