Page:Federal Reporter, 1st Series, Volume 10.djvu/85

 PULLIAM V. PULLIAM. 73 �Xvere other trusts attaching to the fund, such as the trust for the ben- efit of creditors, to which it may be the trust in her favor was sub- ordinate, does not change this resuit; nor does the fact that he claimed to be hinaself a creditor, whether upon a debt already barred or not, alter the case. "A trustee, having possession of the trust estate for his cestui que trust, cannot, by any act of his own, without oommunicating with the cestui que trust, so change the character of his possession as to make it adverse." Armstrong v. Campbell, 3 Yerg. 200, 236, (Cooper's Ed.) And, in the language of Taylor v. Walker, 7 Heisk. 734, 740, "it is not shown in the proof that he dis- robed himself of the character of trustee by giving complainants notice of his adverse holding;" at least, not till the settlement with the county court, and from that time the statute does not apply. See table of dates attached to the master's report, where it appears that while more than six years had elapsed from the appropriation of the money by the agent and attorney, to the filing of the bill, it was less than that time from the date of the settlement in the county court, which was made by him, and was the first intimation plaintif had that he claimed it as his own. �The statute of limitations out of the way, Joel L. Pulliam would, therefore, be liable for the money to either the plaintiff or the exec- uter on either of the grounds above mentioned ; and on the first pos- sibly he would be liable even for the losses on the cotton, incurred, as the proof shows, by his mismanagement. But I do not find the cases carrying the doctrine further than to charge a renouncing exec- utor for assets actually received by him. I do not rest my judgment wholly on this ground, conclusive as it is to my mind, and am pre- pared to hold, (although no case bas been cited in argument, and I have found none,) upon principle, that an executor or administrator may recover back from a pretended creditor any money paid to him, and that a creditor with a valid claim, which has been allowed to lapse by failure to present it or sue upon it, as required by the above-quoted sections of the Code, must pay back any money he receives upon it. He will be held to be a trustee, in a court of equity, upon principles already enunciated, and that because his debt no longer exists any more than if he had never had any claim at all. �Ordinarily, money paid under a mistake of law cannot be recovered back, while if paid under a mistake of fact, without negligence, it may. Bisph. Eq. §§ 184, 195; Elliott v. Swartwout, 10 Pet. 137; Hunt v. Rousmanier, 8 Wheat. 174; Bank of U. S. v. Daniel, 12 Pet. 32; Railroad v. Soutier, 13 Wall. 517. But courts of equity afford ��� �