
    Susan Baker, Appellant, v. William Moore, as Executor, etc., of Abel Scripture, Deceased, Respondent.
    
      Statute of Limitations — where an agent misapplies money a demand is unnecessary, — an action therefor is not within subd. 5 of % 383 or within § 410 of the Gode of Oieil Procedure.
    
    In an action brought against the executor of one Abel Scripture to enforce payment of .a claim alleged to be due from his testator, it appeared that in 1865 the plaintiff and Scripture entered into an agreement to purchase two lots known .as No. 3 and No. 5, range 9, Dartmouth patent; '.that the plaintiff desiring lot No. 3 “ for the bark on it,” but not wishing to buy lot No. 5, which was “a spruce lot,” it was finally agreed that Scripture should buy both the lots for §1,500, and take a deed to himself and the plaintiff, the plaintiff to furnish half the purchase money. Pursuant to this agreement $600 was furnished -by thei plaintiff, with whose knowledge Scripture sold a quantity of logs from lot No. 5, for which he received $700, §150 of which, it was agreed, should' be applied in payment of that amount still due from the plaintiff on account of the purchase, leaving in Scripture’s hands a balance, due to the plaintiff from him on. account of the sale of the logs, of §300, less any sum that might be due for back taxes on the lots.
    In 1867 Scripture, without the knowledge or consent of the plaintiff, took a deed, to himself of. the-.tw.o lots, one of which he sold.in 1867 and the other in 1871. Whether i.n making the purchase Scripture used the money which he had received from the plaintiff, or paid for the lots out of his own funds, did not appear. He died in 1889, leaving the §200 unpaid to the plaintiff, who, so far as appeared, had never made a demand upon him for the money.
    
      Held, that the claim was barred by the Statute of Limitations;
    That where a person advances money to another for a specific purpose, and the-latter appropriates it to a different purpose, the lender may recover the money advanced, and, in this view, the plaintiff became entitled to the money in 1887' when Scripture in violation of the agreement took the deed of the lots in his. own name;
    That, under the circumstances, Scripture was the agent of the plaintiff, and,, in taking the deed in his own name, he violated a fiduciary obligation and was. guilty of a conversion which made a demand unnecessary; '
    That if he did not use the plaintiff’s money in buying the lots it was his duty to¡. return the money, in which case an action could be maintained for the money without any demand ;
    That, as no demand was necessary, evidence offered to show that the plaintiff had no actual knowledge that the deed of the two lots had been taken to Abel Scripture alone, until after he had died, was immaterial;
    That the plaintiff’s claim was not saved from the bar of the statute by section 410' of the Code of Civil Procedure, which provides that where the right grows out of the receipt or detention of money by an agent or other person acting in a. fiduciary capacity, the time limited for the commencement of an action must be computed from the time when the person having the right to make the demand has actual knowledge of the facts upon which the right depends, as. that section was only applicable to cases where a demand was necessary;
    That this action being one to recover a judgment for ‘‘a sum of money,”' ignorance of the plaintiff as to the fraud perpetrated upon her would not come within the provisions of subdivision 5 of section 382 of the Code of Civil Procedure, and prevent the running of the statute.
    Appeal by the plaintiff, Susan Baker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 28th day of December, 1894, upon the report of a referee.
    
      J. M. Whitman, for the appellant.
    
      H. Prior King, for the respondent.
   Putnam, J.:

The plaintiff and Abel Scripture, deceased, the defendant’s testator, in the year 1865 entered into a contract to purchase lots 3 and 5, range 9, Dartmouth patent, great tract, situate in Warren county, N. T. The plaintiff desired lot 3 for “ the bark on it,” but did not wish to buy lot 5, which was “ a spruce lot.” It was finally agreed that Scripture should purchase the two lots for $1,500, taking a deed to liimself and the plaintiff, she to furnish one-half of the purchase price. Pursuant to such arrangement, in December,-1865, plaintiff advanced to Scripture $300, and in the following spring a further sum of $300. In 1866, and it may be assumed in anticipation of the delivery of the deed of the lots, Scripture, with the knowledge of the plaintiff, sold a quantity of logs from, lot 5 for which he received the sum of $700. It was agreed that the balance of. the purchase price of said lots — $150 — due from the plaintiff, should come out of her share of .the sum received for the logs sold, leaving a balance of $200 due her on account of said sale, less whatever sum might be due for arrears of taxes on the lots. It does not appear that this sum was ever paid or that the plaintiff ever demanded it or called upon Scripture for an account or settlement in regard thereto.

In the transaction the plaintiff’s husband, John P. Baker, acted as her agent, and he was produced and sworn by her as .a witness on the trial. . The evidence does not show that, after advancing the $600 on the purchase price of said two lots and the agreement with Scripture, that the balance of her share thereof should come out of the money received for the logs, the plaintiff or her agent paid any attention to her interest in said lots until four or five years before the trial (probably about 1886 or 1887), nearly twenty years after the transaction.

On or about August 22, 1867, Scripture obtained a deed of the said two lots, taking the title to himself alone,' without the knowledge or consent of the plaintiff, as it is claimed, the deed received by him being recorded in the clerk’s office of Warren county on January 3, 1868. On or about November 28, 1867, Scripture sold lot 3 for $1,200 to B. P. -and F. Y. Burhans by a deed recorded in the Warren county clerk’s office on the 6th day of January, 1868, and on or about January 30,'1871, lot 5 for $1,000 to one Ordway by a deed recorded in the same clerk’s office on the 27th day of June, 1891, Whether Scripture, in making said purchase, actually used the money which he received from the plaintiff or his "own fundsj retaining in his possession the sum advanced by Mrs. Baker, does not appear.

Abel Scripture died on the 9th day of February, 1889, twenty-two or-twenty-three years after the transaction above detailed. A year or two before his death Mr. Baker called upon him for some money on plaintiff’s account. In the conversation Scripture spoke of the plaintiff’s claim being “ outlawed.” He said the lots were sold; that he had a right to sell them, and that he would pay over to the plaintiff her share of the proceeds.

Ho action was commenced against the deceased, but after his death a claim, verified on the 23d day of June, 1890, was presented by the plaintiff to the defendant as executor of the said deceased, and, the same being rejected, the matter was referred pursuant to the statute.

The referee, at the close of the testimony, held that the plaintiff’s claim was barred by the Statute of Limitations and directed a judgment of nonsuit in favor of the defendant, from which judgment the plaintiff appeals.

It is not claimed by the plaintiff — the deceased having received money from her under an agreement to make the purchase of the lots in question and take the deed to her and himself, and having, without her knowledge and consent, wrongfully taken it in his own name as sole grantee — that a trust resulted in her favor enforcible in this proceeding under the principles established in Lounsbury v. Purdy (18 N. Y. 515); Roulston v. Roulston (64 id. 652), and kindred cases. It is, therefore, unnecessary-to determine whether such a claim, if made, could have been sustained. The counsel for the appellant takes the position that, the defendant’s testator having as an agent or in a fiduciary capacity received $600 from Mrs. Baker under a contract to use the same to purchase for her an undivided one-half interest in the lots above mentioned, and having, without her knowledge and consent, wrongfully taken the title thereto in his own name, she, upon the discovery of the facts, was entitled to demand and receive the sum so advanced to him; that such discovery was made shortly before the death of the defendant’s testator, and, hence, that under the provisions of section 410 of the Code of Oivil Procedure the claim was not barred by the Statute of Limitations.

It is a well-settled principle that where one advances money to another for a particular object and the latter appropriates it to a different purpose, the former may recover the money so advanced. (M'Neilly v. Richardson, 4 Cow. 607; Darragh v. Ross, 28 N. Y. St. Repr. 632; Crosby v. Clark, 80 Hun, 426; Admin. of Dumond v. Carpenter, 3 Johns. 183.) Therefore, the appellant immediately after the 22d day of August, 1867, when-'the defend^ ant’s testator, in violation of his agreement, took the deed of the lots in question as sole grantee, was entitled to the money she had advanced. -

The important question • is whether, under the circumstances of the case, a demand for the return of the money was required to be be made by the pláintiff of Scripture before she could maintain an action therefor. If so, the provisions of section 410 of the Code of Civil Procedure applied. ■ If no demand was necessary the plaim tiff’s claim was barred after the lapse of six years from the time of the wrongful act of the deceased in taking a deed of the lots to himself alone.

We are of the opinion that when the defendant’s testator wrong-; fully and in violation of his contract took the conveyance of the two lots to himself as sole grantee a right of action arose in favor of the plaintiff to recover the money she had advanced without a previous1 demand therefor.

Scripture’s relation to the plaintiff under the contract was that of an agent. He received her money- and agreed with it to obtain for. her a conveyance of, an undivided one-half interest in the lots. -He acted in a fiduciary capacity. When lie wrongfully took the deed, if he used her money to make the purchase, it was a conversion of it, and certainly no- demand was required after such a wrongful -appropriation of the plaintiff’s property. ■ If he retained the $600 in his own possession, he was under an obligation to notify her of the fact that he had not used her funds, or taken the title to an .undivided onedialf interest in the- lots to her, and to return the money ■which she had advanced.

Where money belonging to one is in the hands of another under such circumstances that- it is the duty of the latter to pay it over an action may be- maintained therefor . without any demand. (Mills v. Mills, 115 N. Y. 80; Wood v. Young, 141 id. 211-217; Adams & Others v. Olin & Others, 140 id. 150, 157; Hickok v. Hickok, 13 Barb. 632; Catterlin v. Somerville, 22 Ind. 482; Ferguson v. Dunn’s Admin., 28 id. 58; Stacy v. Graham, 14 N. Y. 492; Watson & Another v. Walker & Another, 23 N. H. 471.)

- The position of the defendant’s testator under the circumstances was similar to that of one who had misappropriated money.- Acting -in a fiduciary capacity lie had abused his trust. The $600 which the plaintiff sought to' recover was not left with Scripture as an ordinary deposit. It was received by him for a specific purpose — to buy for her a one-half interest in the two lots — Scripture agreeing to use it for that purpose. When he took the deed to himself as sole grantee, without the knowledge or consent of the plaintiff, he was chargeable with a gross and fraudulent breach of duty. After such wrongful act he had in his hands $600 of the plaintiff’s funds, which it was his duty to at once return to iler, as by such wrongful act he had put it out of his power to use the money for the sole purpose for which he received it. This $600, therefore, after the wrongful and fraudulent act of the deceased, remained in his hands under such circumstances that it was his legal duty to return the money to the plaintiff.

The counsel for the appellant calls our attention to the case of King v. Mackellar (109 N. Y. 215). The facts appearing in that case were very different from those shown in this. In the case cited the plaintiff deposited $3,000 with the defendant.to invest for her, the deposit being for an indefinite period. The defendant assumed to make an investment which the Court of Appeals held to be unauthorized, and, in fact, not an investment. Under this holding, the defendant remained in possession of the $3,000 under the. original •contract by which it was deposited with him for an indefinite period for the purpose of investment. It was, therefore, properly held that before the plaintiff could recover the money she must demand 'its return. Again, in that case, the defendant had assumed to take •an assignment of a mortgage to the plaintiff, and a deed for her benefit as an additional security. She had received interest on the mortgage for several years, and had in her possession the deed •and the mortgage. It was, therefore, necessary for her, before she could maintain an action for the money she had deposited with the defendant, to return or offer to return the mortgage and the deed, and demand the return of her money.

In the case under consideration the dejmsit made by the plaintiff with the defendant’s testator was not for an indefinite period or purpose. Under the contract made it could only continue until Scripture purchased the said lots. If he performed his agreement, and "used the money to buy for the plaintiff a one-half interest therein, the deposit would necessarily cease to exist. If he violated the conr tract and wrongfully took a deed in which he was named as the sole grantee, his right to hold the money ceased, and his duty was to return it to the plaintiff. PTo demand, was required to entitle the plaintiff to recover the money which the deceased had no right under the contract to retain. The deceased had obtained from plaintiff $600, to the possession of which, after his wrongful act, he was not entitled. (See Carr v. Thompson, 87 N. Y. 160, 165, 166.)

The defendant urges that' the referee erred in excluding certain evidence offered by him to show that John P. Baker, the agent of the plaintiff, communicated to her the facts as to the contract he had made with Scripture. The evidence so excluded was clearly immaterial.

So, also, we think, was the evidence offered to show that the plaim tiff had no actual knowledge that the deed of the two lots had been taken to Abel Scripture as sole grantee until after his death: If we are correct in the views above expressed, that no demand was neces<- • sary for the maintenance of an. action by the plaintiff to recover the money in the possession of Scripture after his breach of the contract under which he received it, her claim was barred after the expirar tion of six years, although she had no actual knowledge of the wrong done her by the deceased. It is only when a demand is required that the provisions of section 410 of the Code of Civil Procedure apply. If no " demand is necessary a party seeking to recover money in the hands of an agent, for which he is entitled to maintain an action, although in ignorance of his. rights, is not. entitled to the benefit of that section. So, in an action to recover a judgment for money on the ground of fraud under the provisions of section 382 of the Code of Civil Procedure, the ignorance of the plaintiff of the fraud perpetrated upon him will not prevent the ■running of the statute. •

We conclude that the case was correctly disposed of below and that the judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  