#### T. Scott Thacher, Ex’r, Resp’t, *v.*The Hope Cemetery Association, App’lt.1

*(Court of Appeals,*

*Filed June 2, 1891.)*

1. Limitation—Trust.

In March, 1868, the plaintiff’s testator and others loaned moneys to defendant, for which it issued a certificate agreeing to repay the loans in semiannual dividends from moneys received from sales of lots, which it realized upon more than ten years prior to the bringing of this action, but of which plaintiff’s testator had no knowledge up to within six years. *Held,*that there was no trust created in defendants, and the statute of limitations had run against the claim upon the contract obligations of the defendant.

2. Same.

That even if an equitable action was necessary, the amount accrued as to the whole amount due upon the certificates when sufficient money had been received from the sale of lots to pay the whole, according to the terms of the certificate, and that was more than ten years prior to the commencement of the action.

Appeal from a judgment of the supreme court, general term, fifth department, affirming a judgment for plaintiff on decision of court on former appeal, reported in 12 K Y. State Rep., 857.

*James H. Stevens,*for app’lt; *A. S. Kendall,*for resp’t.

1

 Reversing 80 N. Y. State Rep., 1021; see 12 id., 857.

Earl, J.

Otis Thacher died on the 14th day of March, 1868, leaving a will, appointing the plaintiff executor thereof. The will was admitted to probate on the 6th day of May thereafter, and letters testamentary thereon were then issued to the plaintiff. Many years afterward, on the 5th day of October, 1883, he brought this action to .enforce the payment of the money mentioned in a certificate issued by the defendant, of which the following is a copy:

> *520“Hops Cemetery *Association.*

> *No. 25.*

> “We certify that Otis Thacher has this day loaned to the Hope Cemetery Association Three Hundred Dollars. It is agreed upon the part of the said Association that one-half of the ! receipts from the sale of lots shall be applied exclusively to the 1 payment of the sum of Twenty-Five Hundred Dollars loaned to the Association by divers persons, of which the said sum 'of $300 forms a part, and for the payment of the interest thereon, said interest to be payable annually, and the receipts to be so applied shall be distributed on the 1st day of July and the 1st day of January in each year until said sum shall be fully paid.

> *“August*1, 1864.

> “A. L. Smith, *President.*

> “M. Adsit, Treasurer.”

Early in August, 1864, by this certificate and other certificates issued to other persons, the defendant borrowed about the sum of $2,200, and out of the money so borrowed it paid for land purchased of Otis Thacher the sum of $1,527.75, and the balance of the money it used for improving its cemetery, and for its other general purposes. The land so purchased was divided into cemetery lots to be sold, and it was the one-half of the receipt of the sales of such lots which were to be applied on the certificates.

The court, at special term, found that the proceeds “ of sales of lands conveyed by the defendant in lots, sufficient to pay the certificate in question, and applicable to the payment thereof, were received by the defendant more than ten years prior to the commencement of this action. ” Upon that finding the defendant claims that the plaintiff’s cause of action upon the certificate was, at the time" of the commencement of this action, barred by the statute of limitations. The court further found “ that the plaintiff did not, nor did his testator, have actual knowledge for more than ten years before the commencement of this action of the facts in regard to the receipt of money from the sale of lots by the defendant out of which receipts the plaintiff’s right of action here depends; nor did either of them have such knowledge more than six years before the commencement of this action; ” and upon that.finding it based its conclusion that the cause of action was not barred by the statute.

From the opinion of the court below, and from the argument of the counsel for the plaintiff, it appears that the court reached the conclusion that the cause of action was not barred by the statute because it held that by the terms of the certificate the defendant became a trustee of the moneys received from the sale of lots for the benefit of the plaintiff and other holders of certificates, and that therefore the cause of action did not accrue until the plaintiff demanded, “ or ought to have demanded, an accounting and application of his distributive share, or the defendant in some *521way denied the plaintiff’s right, so that its holding of the money became adverse.”

It appears to be conceded that this recovery cannot be upheld against the defense of the statute of limitations, except by holding that the defendant, in some way, became the trustee of the plaintiff and other holders of certificates, and that the statute could not be set running until, in some way, it repudiated, or refused upon demand, to perform the trust.

If we consider this certificate without reference to the statute governing the defendant, we think it impossible to read it as creating a trust of any kind. It is not entirely clear that it does not create a general obligation against the defendant to pay the $300 borrowed. But we will assume that it did not, and that the only obligation of the defendant was to pay the $300 and interest at the times mentioned out of moneys received from the sale of lots. The real estate belonged absolutely to it, and the moneys received from the sale of lots also belonged to it. They did not in any sense, legally or equitably, become the moneys of the holders of the certificates. If after the moneys were received they had been absolutely lost without the fault of the defendant, the loss would have fallen upon it, and not upon the holders of the certificates. It cannot well be claimed that if the defendant had been an individual and had received this money and refused to apply it, he would have been liable to arrest under § 549 of the Code of Civil Procedure, on the ground that he had received the money in a fiduciary capacity, and had embezzled or misapplied it. Nor would he have been guilty of grand larceny under § 541 of the Penal Code, for receiving money as a trustee and withholding, or misappropriating the same. The sole obligation assumed by the defendant by the execution of the certificates was to apply the moneys -received from the sales of lots as therein specified, and when it failed to so apply them it became liable to an action for a breach of its contract obligations. It was obliged to apply the money so received semi-annually, and the instrument must be treated as to its legal effect, as if it had been payable in semi-annual installments; and for default in the payment of any installment an action could at once have been brought to recover the amount due for such installments, and when all the installments became due, as they did more than ten years before the commencement of this action, then the entire amount specified in the certificate was due, and an action could then have been brought against the defendant to recover the whole amount thereof, and an ordinary action at law is the proper remedy in such a case. *Mills*v. *Mills,*115 N. Y., 80; 23 N. Y. State Rep., 604.

But even if from facts peculiar to the case, an equitable action could have been commenced then, as against the statute of limitations it was necessary to commence it within ten years from the time the cause of action accrued.

If this had been an agreement to take the plaintiff’s money and hold and apply it as expressed in the certificate, or the money of *522some other person, the relation of a trustee might have been created. But here the agreement was to apply the defendant’s own money to the payment of its own debt, and we know of no principle of law which will allow us to hold that in such a case a trust has been created. One may agree to set apart and hold one-half of his income and pay it to his creditor. Or he may agree to set apart and hold and pay one-half of the proceeds of the sale of specified real or personal property to the payment of his debts, and yet in such cases he would only create a general personal obligation to perform his agreement, and for a breach of it a recovery could be had as for a breach of any other contract; and even if an equitable action could in some way be commenced to reach the money in the hands of the promisor it would be needful to prove that the money was in his hands and that the action had been commenced within ten years after a right to bring it had accrued.

We have thus far considered this certificate without reference to the statutes governing the defendant It was organized under the act, chap. 133 of the Laws of 1847, and acts amendatory thereof. Chapter 280, Laws of 1852 ; chap. 122, Laws of 1853 ; chap. 163, Laws of 1860. It is claimed on behalf of the defendant that this certificate was not issued in pursuance of or in conformity with those acts, and hence that it is in no way governed by them. Without particularly referring to their provisions, we will assume, as contended by the plaintiff, that, with the exception that the certificate was unsealed, it was issued in accordance with those acts, and that therefore it is one of the certificates provided for in the acts. Section 4 of the act of 1860 provides as follows:

> “ Nothing in this act contained shall be construed to create a lien upon lots or plats belonging to individual 'proprietors within the cemetery limits, nor any other or greater liability against the association or trustees issuing said certificates than may be necessary to enforce the faithful application of the proceeds of sales in the redemption thereof in the manner aforesaid.’’

The effect of this section is that by issuing these certificate's, to be paid out of moneys received from the sale of lots, no lien was created upon cemetery lots owned by individuals, and that no other or greater liability was incurred by the defendant or its trustees in issuing the certificates than was necessary “to enforce the faithful application of the proceeds of sales in the redemption ’’ of the certificates. To understand the force of this section it is necessary to ascertain the obligation assumed by the defendant by the terms of the certificate under the statute. That was not a general obligation to pay the certificate, but to pay it only out of the proceeds of moneys received from the sale of lots. If it never received any money from the sale of lots it could not be compelled to pay any upon the certificates. If it did not receive money enough from that source to pay all the certificates it could be required only to apply such money as it received. If it received money enough to pay them all, then it was required to apply it in paying all. And for a failure to so apply it, by what form of action could payment be *523enforced ? It would be sufficient to commence an action, as we have above stated, for a breach of its obligation, and thus a recovery from it could be had for the money which it ought to have applied. It cannot be said that an action in equity was absolutely necessary. There might-be circumstances and complications which would render such an action necessary, but ordinarily an action at law would be sufficient in which the holder of a certificate could recover by showing that the defendant had received money which it ought to, but had not, applied. But even if an equitable action was necessary against the defendant, the right to that action certainly accrued as to the whole amount due upon the certificates when sufficient money had been received from the sale of lots to pay the whole, according to the terms of the certificates, and that was more than ten years before the commencement of this action.

Therefore, taking any view of this case justified by the law and the facts, whether the remedy of the plaintiff be legal or equitable, his cause of action was barred and his complaint should have been dismissed.

The judgment should be reversed and a new-trial granted, costs to abide the event.

All concur.