(after stating the facts.) The material questions in this case are payment and the statute of limitations.
The defendant (the appellant) contends that the evidence shows that the two notes given for the two last payments of the purchase money had been paid long before the suit in this case was commenced. He says that it is shown by a memorandum account made by Capt. Young in his life time in a small book of Williams, the appellee, that Williams had paid to Capt. Young from time to time amounts of money which overpaid any book account Capt. Young had against Williams in sufficient excess of said accounts of Young to fully satisfy the amount of purchase money due on said two notes given for the two last payments. Taken alone, the evidence in this behalf might tend to show that there may have been money enough paid to and received by Capt. Young, over the amount of his accounts, to have paid these notes. But, if this were so, there is no proof that there was any application of these amounts to the payment of these notes. For aught that we see, or can tell, these payments may have been applied by Williams, the appellee, or by Young with his consent, in some other way.
Young died in possession of the notes. He was a farmer having large interests in farms, and the proof shows that he furnished Williams with supplies and money, and accounts for him from time tó time and from year to yeaT. There is no positive proof that these notes were ever paid, and we cannot suppose that they were, from the transactions referred to between Young and Williams. There may have been other transactions between them. We understand from the evidence that some of the account books kept by Young in his life time were mislaid or lost when he moved from the country to the city, and could not be used in evidence. It is not proper to assume, from what appears from this account book of Williams (the appellant), that these notes had been paid. There was much other testimony. Added to the fact that Capt. Young died in the possession of these two notes, the further fact that after his death the testimony of C. N. Alexander, his administrator, shows that Williams told him that the two notes were unpaid, that he intended to pay them, that he could get the money from Col. John Graeie, and would pay them off. C. N. Alexander is unimpeached, and his testimony is positive. We conclude, therefore, that the proof fails to show that these notes had been paid. The burden was on the appellant.
Was this action barred by limitation? Where land is sold, and notes given for the purchase price, and a bond for title to be made by the vendor upon payment of the notes, the vendor is a trustee holding the legal title in trust for the vendee upon payment of the purchase money, and the vendee is considered as a trustee holding the purchase money for the vendor. There exists an express trust by contract between the parties, and the statute of limitations will not begin to run until there is a determination of the trust relation. This is the doctrine of our court, and the courts of the United States and others. Harris v. King, 16 Ark. 122; Walton v. Coulson, 1 McLean, 132; Lewis v. Hawkins, 90 U. S. 119.
Section 5094, Sandels & Hilks Digest, has no application to a. .case like this. The statute of limitations never began to run in this case. The decree of the chancellor is affirmed, with directions to proceed to carry the same into effect.