
    Ball, Exr. v. Davidson, Admr.
    Douglass Davidson and Nathaniel Davidson compromised an ejectment suit by selling the land to Barber, who gave á judgment to Nathaniel for a part of the purchase money and a judgment note to Douglass for $1,500 for the remainder. The latter judgment was entered in 1875 and subsequently a rule was taken to open the judgment, etc., and another rule was taken to show cause why it should not be marked to the use of one Corbin. The docket entries showed “ rule discharged.” The judgment was subsequently opened, on rule, and, in 1880, the administratrix of Douglass, his widow, compromised the suit, receiving $300 on account of widow’s exemption and $300 on account of dower, as specified in the settlement of record, and the judgment was marked satisfied. In 1885, a rule was granted to show cause why satisfaction of the judgment should not be stricken off .and the judgment marked to the use of Ball, executor of Nathaniel Davidson, which rule was subsequently discharged. In 1876, Nathaniel brought an action of assumpsit against Corbin and the jury found a special verdict that, at the time of the conveyance to Barber, the $1,500 was to be appropriated to the support of Nathaniel. In 1887, Ball, as executor of Nathaniel, brought an action of assumpsit against the administratrix of Douglass to recover the amount of the judgment for $1,500 paid to her. The pleas were payment, non assumpsit, res adjudicata and the statute of limitations. “ At the trial, there was some testimony that the $1,500 was to be used for the support of Nathaniel, but the evidence of the trust was vague. The plaintiff testified that he learned of the payment to the defendant in 1884. The court gave binding instructions for the •defendant. Held, not to be error.
    March 21, 1889.
    Error, No. 80, July T. 1888, to C. P. Bradford Go., to review a judgment on a verdict for defendant in an action of assumpsit by John B. Ball, executor of Nathaniel Davidson, against Sally Davidson, administratrix of Douglass Davidson, at Sept. T. 1881, No. 210. McCollum and Mitchell, JJ., absent.
    This action was brought June 8,1881. The defendant pleaded nil debit, non assumpsit, payment with leave, etc., and afterward, by leave of court, res adjudicata and the statute of limitations.
    
      The evidence was to the following effect, at the trial, before Seely, P. J., of the 22d judicial district, specially presiding:
    Some time prior to 1875, Douglass Davidson and Nathaniel Davidson compromised an ejectment suit by selling the land in dispute to one Barber, who gave a judgment to Nathaniel for a part of the purchase money and a judgment note to Douglass for $1,500 for the remainder. Judgment was entered on the latter in 1875 and subsequently a rule was taken to open the judgment, etc., and another rule was taken to show cause why it should not be marked to the use of J. Leroy Corbin. The docket entries show “ rule discharged.” The judgment was subsequently opened, on rule, and, in 1880, Sally Davidson, the administratrix and widow of Douglass, compromised the suit, receiving $300 on account of widow’s exemption and $300 on account of dower. This settlement was set forth in the record of the suit, and the judgment marked satisfied. On May 6, 1885, a rule was granted to show cause why satisfaction of the judgment should not be stricken off and the same marked to the use of Ball, executor of Nathaniel Davidson, deceased, or an issue be awarded to try any disputed facts that may appear upon the return of said rule. Nov. 4, 1886, the'rule was discharged. In 1876, Nathaniel began a suit against Corbin and the jury found a special verdict that, at the time of the conveyance to Barber, the $1,500 was to be appropriated to the support of Nathaniel. In 1887, the executor of Nathaniel began this suit against the administratrix of Douglass, to recover the amount of the judgment for $1,500' paid to her in 1880.
    The plaintiff testified that he first learned of the payment to the defendant in 1884.
    An offer was made by plaintiff to prove that Douglass Davidson came to the house of D. B. Cooper to try to make an arrangement with him to take care of his brother, and that he was to build or buy a house and convey it to them if they would take care of him, and that he then said he had the $1,500 judgment of Barber in his hands for the proceeds of the farm that he had agreed to apply for Nathaniel’s support, and that he wanted to do it in this way — for the purpose of showing his admission that the proceeds of the judgment belonged to Nathaniel Davidson at that time.
    Mr. DeWitt: They have already read that from the records and I don’t think we shall dispute it. The records show that Douglass Davidson held it for the support of Nathaniel Davidson. We shall not introduce any evidence upon that subject.
    The Court : If I understand the effect of this admission it is not that Nathaniel Davidson was to have the benefit of this entire judgment, hut that this' judgment was to he used for his support while he was living.
    Mr. DeWitt: The plaintiff has read from the record the finding of the jury, and that is conclusive, and we shall not dispute it.
    William Harris, a witness for plaintiff, testified as follows :
    Mr. DeWitt: Q. They said that they wanted to get a house and lot, and that they had $1,500 for Nathaniel’s support, did they not? A. Yes, sir.
    Mr. Overton: Q. One of the expressions was that he had $1,500 belonging to Nathaniel Davidson; state just what he said. A. He wanted to buy a house and lot for Benjamin Cooper and wife to take care of Nathaniel Davidson as long as he lived, and that he had $1,500 to pay for it with. That is just as near as I can tell it.
    Mr. DeWitt: We shall introduce no evidence to contradict this, so that you may quit whenever you think you have got it strong enough. It is admitted that Mrs. Cooper would testify that Douglass Davidson told her that he had $1,500 for Nathaniel Davidson’s support.
    The court charged as follows :
    “ This is a claim against Sally Davidson, as administratrix of Douglass Davidson, deceased. The plaintiff seeks to recover of Mrs. Davidson, as the administratrix of the estate of Douglass Davidson, and not of her personally, an amount of money which is alleged to have been held in trust for the support of Nathaniel Davidson. There is no plea of no assets, in this case, and we have no knowledge of any funds that have come into the hands of Mrs. Davidson, or whether she has received funds, or not. [So far as this case goes at all, Mrs. Davidson received $600 out of a certain judgment, $300 which she was entitled to take as widow, and $300 which was awarded to her as a part of her one-third interest under the intestate law. This money she was entitled to receive. It was a part of the judgment of Douglass Davidson against James Barber, and there is no evidence in this case to show that that judgment was charged, in any special way, with this trust.] [1] The record shows that, in another case, between other parties, that matter was investigated, and that it was held that the judgment was charged with the trust. [That is not evidence against Mrs. Davidson, as administratrix, and there is no evidence', here, that she is charged with a trust. There is evidence, however, that Douglass Davidson held some money in trust, to be used for the support of Nathaniel Davidson. In what form it was, whether the fund actually was to go to Nathaniel Davidson, or whether it was merely to be used, so much as was necessary, for his support, would be a very difficult matter to determine, under the evidence in this case.] [2] Years have passed, and the evidence in the case is of loose conversations, imperfectly remembered. The witnesses say that they cannot remember the exact language. [More than six' years have passed since the right to recover this money accrued, the statute of limitations is pleaded, and we think properly. For this reason, we think we must instruct you that the plaintiff cannot recover in this action, even if there were no other reason.] [3]
    “ We do not think that the plaintiff is estopped by the record in the case refusing to mark this judgment to the use of Mr. Ball, for the reason that that was a proceeding against Sally Davidson, herself, and this is a proceeding against the estate of Douglass Davidson, and they are different parties. But we do think that when they come in to sue Mrs. Davidson, after this long period of time is elapsed, they should be held to the same rule that other persons are held to. An amended declaration has been filed, here, alleging that she voluntarily received this money, but there is no evidence whatever to sustain that charge, and there is no evidence whatever to show that she received any money whatever, except the $600 which the court awarded her. [We therefore direct you that your verdict must be for the defendant.”] [4.]
    Yerdict and judgment for defendant.
    
      The assignments of error specified, 1-4, the portions of the charge within brackets, quoting them.
    
      D’A. Overton, with him B. M. Peck, for plaintiff in error.
    Mrs. Davidson knew of the trust for Nathaniel and, ex equo et bono, cannot retain the fund received by her. 4 Bouvier’s Inst. § 3969; Harrisburg Bank v. Tyler, 3 W. & S. 373; Pierce v. McKeehan, 3 W. & S. 280.
    Assumpsit for money had and received is the proper remedy in this case. Waldron v. Duches, Exr., 2 Bal. 176; Reese v. Ruth, 13 S. & R. 434; Lee v. Gibbons, 14 S. & R. 105.
    The statute of limitations is no bar. If fraud is shown, then the statute of limitations runs, not from the time the fraud was committed, but from the time it was discovered. This was not until the fore part of the winter of 1884. Mitchell v. Buffington, 10 W. N. C. 361; Kuhn’s Ap., 87 Pa. 100.
    If an express trust is shown, the statute is no bar. Johnston v. Humphreys, Adm’r of Porter, 14 S. & R. 394.
    As to the form of action, it matters not whether it be assumpsit or a special action on the case. Mitchell v. Buffington, 10 W. N. C. 361.
    
      D. C. De Witt, for defendant in error.
    The evidence of the trust was vague, and, at the most, it merely tended to show that Nathaniel was to have his support. There was no evidence, however, that he was not supported.
    This case is ruled by Yorks’s Ap., 110 Pa. 69.
    March 25th, 1889.
   Per Curiam,

The court below committed no error in directing the jury to find for the defendant. The statute of limitations had been pleaded, and was. a bar to the plaintiff’s recovery. More than six years had elapsed between the time when the cause of action accrued and the bringing of the suit. There was nothing to toll the statute. There was an attempt to set up a trust, but it failed. The testimony was vague, both as to the existence of a trust and the nature of it. No chancellor would decree a trust upon such evidence. This view renders a discussion of the other points unnecessary.

Judgment affirmed.  