
    Kershaw v. Snowden.
    1. A plaintiff sued an administrator for money placed in the hands of his intestate, which it was averred was so received upon the “ express trust,” to be repaid to the plaintiff on the death of the intestate. Reid, that the transaction did not constitute an equitable trust, but merely-created the relation of debtor and creditor- between the intestate and the plaintiff.
    -2. In such case, the cause of action did not accrue until the death of the intestate.
    •3. Where a case has been treated by the parties and the courts below, as an equitable action, and as appealable, and the case has been tried by the district court on its merits, without objection, this court will not, sua sponte, consider the question of error in entertaining the appeal.
    Error to tlie District Court of Jefferson County.
    The action was brought by the defendant in error, against' the plaintiff in error, in the court of common pleas of Jefferson county. The petition sets forth six causes of action, briefly stated as follows:
    “ 1st. That the defendant (in that court) had been duly appointed and qualified as administrator on the estate of Ann Kershaw, deceased; that the said Ann Kershaw, in her lifetime, received large sums of money of the said Richard Snow-den, to-wit: $2,012, as an express trust for him, and has ever since, up to the time of her death, retained said sum of money as trustee of the express trust, viz.: to retain the same in trust for the said Richard Snowden until her death, and. then to execute the said express trust by the return of the said sum to said Richard Snowden. That Ann Kershaw died without returning the sum aforesaid, but that said fund became mingled with her estate, and is now in 'the hands of said Nicholas Kershaw, as administrator on her estate; and praying that said .Nicholas Kershaw, as said administrator, be ordered, adjudged and decreed to pay to said Richard Snowden out off the estate of said Ann Kershaw, deceased, the amount off money which in the premises he is equitably entitled to.”
    The legal character of the other causes in action was the-same as the first.
    Kershaw filed a demurrer to the petition in the common pleas, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled. He then answered, traversing each cause of action; and also-pleaded the statute of limitations of six years.
    On the trial in the common pleas, the court found in favor of the plaintiff below, Snowden, in the sum of $150, and rendered judgment accordingly.
    Both parties gave notice of appeal to the district court; and. the plaintiff perfected his appeal by giving bond.
    
      The action was tried in the district court, at the April term, 18Y7, and the finding was in favor of the plaintiff in the sum of $400, for which judgment was rendered.
    A motion was made by the defendant for a new trial on the ground, among others, that the finding was not supported by the evidence. The motion being overruled, a bill of exceptions was taken, embodying all the evidence.
    The present petition in error is prosecuted to revered this judgment. The errors assigned are, in substance, that the petition, does not show a cause of action ; and that the evidence does not support the finding. ■>
    
      MoCauslen é¡ Martín and Bobbin <& Andrews, for plaintiff in error.
    
      O. P. Mossgrove, for defendant in error.
   White, J.

The original petition in this case is framed upon the theory, that the plaintiff’s cause of action is of an equitable nature, and that the relief to which he is entitled is the enforcement of an express trust. This view is founded upon a misconception of the nature of the cause of action, and of the rights of the parties. There is no equitable trust involved in the case. The real ground of the action is, that the plaintiff placed certain money in the hands of the intestate of the defendant below, which was to be repaid to him on her death. This created the relation of debtor and creditor between the plaintiff and the intestate; and as such creditor his rights against her administrator stand upon no higher footing than those of her other creditors. The plaintiff can assert no right to any specific part of the assets; and if the estate should prove insolvent, he could be paid otAj pro rata with the other creditors.

The plea of the statute of limitations of six years, interposed by the defendant below, cannot avail. The cause of action did not accrue until the death of his intestate, which occurred in .July, 18T3, and the action was commenced in January, 1876.

The case has been treated by the parties and .the courts below as an equitable action, and as appealable. Both parties gave notice of appeal. The plaintiff below gave bond to perfect the appeal; on the part of the administrator no bond was required for that purpose. The case was tried by the district court on its merits without objection; and there was a finding and judgment for the plaintiff. The principal error assigned in this court, is that the finding is not supported by sufficient evidence. Under these circumstances, we do not feel called upon, sua sjponte, to consider the question of error in entertaining the appeal.

An examination of the evidence satisfies us that the finding of the court is excessive. There was no promise on the part of the intestate, to pay interest on the money placed in her hands by the plaintiff; nor are the circumstances such as to warrant the charging of interest.

The finding in our opinion is excessive to the extent of $200, and unless the defendant in error, the plaintiff below, enters a remittitur of that amount the judgment will be reversed, the finding set aside, and the cause remanded for further proceedings.

If such remittitur be entered, the judgment will be affirmed as to the residue.  