majority"> Allen, J.

The exception relied on by the defendant is to the judgment, upon the ground that, although under the agreement and contract found by the referee to exist between the plaintiff and defendant, the relationship of trustee and agent existed, the letter written by the plaintiff to the defendant in April, 1892, was a demand, and had the effect of putting the statute of limitations in operation, and that upon the admitted facts the plaintiff’s cause of action is barred.

There are, in our opinion, several satisfactory answers to this position.

Speaking of a contract similar in many respects, but not with so many evidences of a trust, the Court said, in Maxwell v. Barringer, 110 N. C., 83: “The defendant was the trustee of an express trust, and also an equitable tenant in common with the plaintiffs. His possession was not inconsistent with his relation to the plaintiffs, and there was no actual ouster or exclusive possession for twenty years. Gilchrist v. Middleton, 107 N. C., 681. Treating him either as a trustee or a tenant in common, the statute would not be put in operation until a demand and refusal.” And again in Patterson v. Lilly, 90 N. C., 88: “It is true a demand was made by the plaintiffs in 1873, but there was no refusal; and a demand and refusal were necessary to terminate his agency. In Northcott v. Casper, 6 Ired. Eq., 303, Chief Justice Ruffin said: ‘If there be an express understanding by one to manage an estate for another, for an indefinite jmriod, a right to an account arises between them from time to time, but the statute of limitations does not operate to bar an account for any part of the time while the relation of principal and bailiff subsists between them, that is, while the agency of the management of the estate is kept up. While the relation continues there is a privity-between the parties, and there is nothing-to set the statute in operation’: and it was held in that case that a demand and refusal were necessary to put the statute in motion. And in Comrs. v. Lash, 89 N. C., 159, it was held that where the relation of principal and agent *345 subsists, the demand for an account necessary to put the statute of limitations in operation must be such as to put an end, to the agency. Nothing less than a demand and refusal, or the coming to a final account ■and settlement, or the death of one of the parties, will put an end to .an agency.”

The defendant, instead of refusing to comply with the request in the letter, paid no attention to it, and continued the use and occupation of •the land under the contract as before. He neither did nor said anything in repudiation of the trust, or to create an adverse relationship, and the •defendant testified that no demand was made on him .after the letter was written, and up to action commenced he was contending he had the right to use the land under his contract with the plaintiff, which he, however, denied was the contract declared on, upon the ground that he had not received sufficient rents to pay off the mortgage debt.

Again, the cause of action of. the plaintiff had not accrued in 1892, and the defendant might have refused to make a deed to the plaintiff at that time without assuming a hostile attitude, upon the ground that ho was in possession under the contract, and that the plaintiff would not be entitled to a deed until the rents were sufficient to pay the mortgage debt, which was not until 1907, fifteen years after the letter was written.

The trust or agency was continuous, unfinished, and indefinite as to time, and as said in Comrs. v. Lash, 89 N. C., 168: “The cases in which a demand is held to be necessary, and when made to put the statute in motion, will be found to be concluded or finished agencies, where nothing remains to be done but to account for and pay over the fund. They are inapplicable to a continuous indefinite agency in which, from the confidence reposed in the agent, he assumes fiduciary relations towards his employer in the management of interests committed to his charge and becomes a trustee. "While this relation subsists, though there may have been unheeded calls on him for information, by the mutual acquiescence •of the parties, it cannot be hostile so as to permit the running of the •statute.

“Where the agent becomes a trustee, charged with the execution of fiduciary duties, until the trust is put an end to, the statute does not begin to operate. In express trusts there is no bar until a sufficient time lapses after their close. This is decided in numerous cases. Falls v. Torrence, 11 N. C., 412; Edwards v. University, 21 N. C., 325. The same is the rule as to a bailee. Collier v. Poe, 16 N. C., 55.

“Thus Pearson, J., remarks: ‘Where a confidential relation is established between parties, either by act of law as in the case of copartners, tenants in common, etc., or by agreement of the parties themselves as in case of a trust or agency, the rights incident to that relation continue *346 until that relation is put an end to, and the statute of limitations and lapse of time have no application.’ Blount v. Roberson, 56 N. C., 73.

“To the same effect, as to an unclosed trust, are Davis v. Cotton, 55 N. C., 430; West v. Sloan, 56 N. C., 102.”

We therefore conclude that the letter of 1892, requesting the execution of a deed, did not have the effect of putting the statute of limitations in operation, and as the defendant continued in possession, claiming up to the commencement of this action that the rents were not sufficient to pay off the mortgage, and had never made a statement of the accounts between them, and the plaintiff was ignorant of his rights,, that the plaintiff’s cause of action is' not barred.

The other exceptions of the defendant are to findings of fact, which, are supported by evidence, and the action of the court thereon is not subject to review. Spruce Co. v. Hayes, 169 N. C., 254.

Affirmed.

Citation profile

How this case has been treated — in progress