78 P. 844 | Kan. | 1904
The opinion of the court was delivered by
William Martindale instituted an action against R. T. Battey, Calvin Hood, and Isaac E. Lambert, and he also named as defendants Elizabeth Holderman and others of his creditors, askiDg that they be ordered to set up whatever claims they had in the premises. In his final amended petition he alleges that he was owing a number of persons $170,000, and to secure the payment of the indebtedness he agreed with his creditors to transfer his real estate and other property to a trustee, to be named by Judge William C. Hook — such trustee to convert the property into money and apply the same to the payment of the debts of Martindale. R. T. Battey was appointed trustee in accordance with the agreement. He accepted the trust, and gave a bond for the faithful performance of his duty, after which Martindale and his wife conveyed to him property, largely lands, of the value of $144,500.
It is alleged that Lambert was an attorney of Battey, and should have aided him in the faithful execution of the trust; that he was also an attorney of the receiver of the First National Bank of Emporia, one of the creditors of Martindale, and that Battey and Lambert, instead of honestly and faithfully endeavoring to sell the property for the highest and best price that could be obtained therefor, so that all the creditors of Martindale might be paid and all his debts discharged, conspired- with Calvin Hood to sell the property to the latter for a grossly inadequate price,
It is further alleged that a proceeding brought in the federal court by Ford Harvey, a creditor, against the trustee was used to effectuate the fraudulent purpose mentioned. An order of that court enjoining the sale was obtained, and it is averred that, during its pendency, Lambert procured an assignment of Ford Harvey’s claim to Calvin Hood, keeping all knowledge of the transfer from the court and from the other parties, and providing that a decree should be entered as if Harvey was still the owner. By misrepresentation
If the trustee had faithfully administered his trust, and had not collusively and fraudulently sold the property to Hood, enough would have been realized to satisfy all the creditors of Martindale. The prayer of the petition is that the proceedings and orders of the federal court be declared collusive and fraudulent as against the rights of Martindale and his creditors not participating in the proceedings, and asking a judgment against R. T. Battey, Isaac E. Lambert, and Calvin Hood ; that they duly account to him for the full market value of all the property sold, conveyed and converted by them, or either of them, to innocent holders and purchasers thereof, and that upon said accounting this plaintiff have judgment against Battey, Lambert and Hood for the sum of $90,000.
The foregoing is but a brief statement of the material facts contained in the petition. In substance the averments of the petition in Holderman v. Hood, im
Is there a misjoinder of causes of action? In its main features, including the prayer, it is clear that as to two of the defendants an action for an equitable accounting of the trust funds wrongfully diverted and misappropriated is pleaded. Battey is, of course, liable as trustee to account for and pay over to those beneficially interested, not only the proceeds of the sale made to Hood, but all that he should have received from a bona fide sale of the trust estate after an honest, diligent effort to obtain its full value. A court of equity may enforce the trust against all those who come into the possession of the estate, or the proceeds of it, with notice of the trust. Every one who wrongfully obtains any part of the trust funds may be required to account to the beneficiaries to the extent of the amount which .each received. Battey had possession of all the estate, and, of course, can be required to account for all disposed of in violation of his trust. Hood, who, it is alleged, connived with Battey, and Came into possession of the greater part of the estate,
There is nothing in the petition, however, to show that Lambert purchased any of the lands or came into the possession of any of the trust funds belonging to the estate. Having none of the property and funds he has nothing for which he can be required to account, and, therefore, the cause of action to account equitably, which is good as to the other parties, is insufficient as to him.
A cause of action of another character, however, was alleged against Lambert. The wrongs alleged to have been committed by him are sufficient to constitute a cause of action sounding in tort, for which he is liable in damages to the extent of the injury inflicted. As already held in Holderman v. Hood, supra, an action in tort may be maintained against those who fraudulent unite with and aid a trustee to sell trust property for less than its value, and the injured beneficiary may recover from each tort-feasor the entire damages sustained. The objection to a recovery against these parties, including Lambert, for the wrongs alleged, was considered in Holderman v. Hood, supra, and found to be without force. The action against Battey and Hood, as we have seen, is distinctly one for an equitable accounting, but such a cause of action is not alleged against Lambert. However, he is made a party, and a good cause of action, not
The code classifies the causes of action, specifying particular claims under each class which may be united in the petition, but it provides specifically that “the causes of action so united must all belong to' one of these classes, and must affect all the parties to the action, except in actions to enforce mortgages or other liens.” (Civil Code, §83; Gen. Stat. 1901, §4517; Hoye v. Raymond, 25 Kan. 665; Lindh v. Crowley, 26 id. 47.) Even if the causes of action united in this petition were not in their nature incongruous, the fact that each does not affect all of the defendants would x’ender the petition demurrable for misjoinder of caxxses of action. The causes of action included in
As tending to sustain the view that there was a misjoinder of causes of action, and that the demurrer was rightly sustained, we cite Haskell County Bank v. Bank of Santa Fe, supra; A. T. & S. F. Rld. Co. v. Comm’rs of Sumner Co., supra; Gardner v. Ogden, 22 N. Y. 327, 78 Am. Dec. 192; Stanton v. Missouri Pac. Ry. Co., 2 N. Y. Supp. 298; Hess v. Buffalo & Niagara Falls R. R. Co., 29 Barb. 391; Nichols v. Drew, 94 N. Y. 22; Compton v. Hughes, 38 Hun, 377; Bennett v. Merritt, 6 Jones Eq. (59 N. C.) 263; N. C. Land Co. v. Beatty and another, 69 N. C. 329; Jasper v. Hazen, 2 N. Dak. 40, 51 N. W. 583; Holton v. Wallace, 66 Fed. (C. C.) 409; Security Savings & Loan Ass’n v. Buchanan, 66 id. 799, 14 C. C. A. 97; Mayo v. Madden, 4 Cal. 27; Lathrop v. Bampton, 31 id. 17, 89 Am. Dec. 141; Bliss, Code Plead. §§ 123, 412; Pom. Code Rem. § 479; Bry. Code Plead. §§ 167, 168.