103 N.W. 748 | N.D. | 1904
Lead Opinion
The plaintiff brought this action to -compel the defendant to -convey to him 160 acres of land situated in Towner county, and to account for the rents and profits of the same for the years 1898, 1899, 1900 and 1901. The trial court held that, as to the defendant, the plaintiff was entitled to a conveyance, but that this particular relief -could not be granted, for the reason that the defendant had conveyed the land to an innocent purchaser. Judgment was entered in the plaintiff’s fav-or for the value of the land, and for the value of the use and occupancy thereof for the years 1898, 1899 and 1900, after deducting certain sums which were found to be due to the defendant. Defendant has appealed from the judgment, and demands a review of -the entire -case in this court, under the provisions -of section 5630, Rev. Codes 1899.
The questions at issue and the grounds upon which -plaintiff bases his right to relief will appear from a statement of the substance of the allegations of the complaint. It is alleged that on the 19th day of November, 1896, the plaintiff -and defendant entered into- an agreement by the terms of •which the defendant loaned to the plaintiff the sum -of $450, -at the rate of 12 per cent per annum, for the purpose of buying from one Julia V. Tucker a mortgage upon the premises in question, which was executed by Michael Rock, mortgagor, to Edmund Kimball, and duly assigned to said Julia V. Tucker; that, to secure the payment of said loan, it was agreed that the assignment of said mortgage was t-o be made in the name of defendant, Ev-endon, and that he was to hold the same in trust for the plaintiff, and handle the same for plaintiff, and, if it was redeemed or paid, the proceeds were to be paid to this plaintiff, less the amount due upon his debt to defendant, and, in case the defendant foreclosed ’the mortgage, it was to be for the -plaintiff, -and the ■title to said land was to be 'held in trust for the plaintiff by -the -defendant, and upon the payment of the money loaned, with interest, the defendant was to deed the land to -the plaintiff; that on August 28, 1897, the mortgage -was foreclosed and the land bid in by the
The trial count found the facts to be substantially as alleged in the complaint, and, as to the foreclosure, that in- July, 1897, the plaintiff and defendant had engaged the firm of Cowan & McClory to foreclose the mortgage upon an agreement that the land should be bid in at the sale in the name of the defendant, and held in trust by him for the benefit of the .plaintiff, and as security for the payment of the $450 loan; that said firm, acting in behalf of both plaintiff and defendant, foreclosed the mortgage and bid in the land in the name of the defendant, but for and on behalf of the plaintiff, and in trust and as security for said loan; that .after the expiration of the redemption period the defendant made an affidavit stating that the sheriff’s certificate of sale was lost, and, upon such affidavit, obtained a sheriff’s deed; that he well knew such certificate was not lost, but was in the office of the said Cowan & McClory; that the affidavit was fraudulently made for the purpose of defeating the rights of this plaintiff. As conclusions of law, the court found that the assignment
The defendant contends upon this appeal -that the evidence fail's to. establish the crucial facts which lie at -the foundation of plaintiff’s cause of action, namely: (1) That plaintiff made a loan from defendant to buy -the note -an-d mortgage in question-; (2) that the purchase -from Mrs. Tucker -was for plaintiff; and (3) that the note was delivered and the mortgage -assigned to defendant in trust for plaintiff, as well as -security for the $450 loan. In -our opinion, the evidence not only sustains th-e findings -of .the trial -court in -the -above particulars, but i-s of such convincing character that it leaves no doubt as to the fact. The plaintiff’s testimony is consistent, and is corroborated by credible and -disinterested witnesses and by d-o-cu
The question as to whether the agreement was- sufficiently incorporated in a writing to constitute a valid declaration of an express trust in relation to real estate, and, if not, whether a trust in the land resulted by operation of law, is discussed at length by counsel for both parties. In our opinion, the question is immaterial. If the agreement in fact related to a trust in real property, its validity would depend upon section 3385, Rev. Codes 1899, which requires a writing, save in cases where the relation arises by operation of law. But we have no such 'Case. The agreement and declaration of trust in this case related to personal property; i. e., a promissory note secured by real estate mortgage, which was a mere incident of the note. It was not necessary, therefore, to the validity of the trust relation, that it be declared in writing, for it is well settled' — and on this there is no difference of -opinion — that a trust of personal property is not within the statute of frauds, and may be created merely by spoken -words, and proved by parol. Cobb v. Knight, 74 Me. 253; Danser v. Warwick, 33 N. J. Eq. 133; Stuntevant v. Jacques, 14 Allen, 523; Thacher v. Churchill, 118 Mass. 108; Gerrish v. New Bedford, 128 Mass. 159, 35 Am. Rep. 370; Davis v. Coburn, 128 Mass. 377; 1 Perry on Trusts, section 86. “Money secured by mortgages and -other -charge on real estate is not included .in the statute, and may be the subject of a parol trust.” 1 Beach on Trusts & Trustees, section 51, and cases cited. So, too, it is well settled that when a trustee of personal property converts it into real estate, as was done in this case, the original trust attaches to the real estate in toe hands of the -trustee. Cobb v. Knight, supra; 2 Story on Eq. Jur., sections 1258, 1259, and cases cited; also Bank v. Kimball Milling Co., 1 S. D. 388, 47 N. W. 402, 36 Am. St. Rep. 739, and cases cited.
Under toe facts of this case, the defendant is obliged to respond as trustee to toe demands of the cestui que trust by virtue of the original trust relation. His liability as trustee does not necessarily depend upon the agreement made at the time of the foreclosure sale, or upon toe circumstances under which he procured the sheriff's
The contention that compensation in money in lieu of specific performance was not authorized in this action, and that plaintiff was confined to an action at -law triable to a jury, cannot be sustained. As to the defendant, the plaintiff was entitled to a 'conveyance. It developed during the trial that the defendant had conveyed the land to an innocent purchaser, and for that reason alone specific performance could not be made effective; but the court had properly assumed jurisdiction of the action, and it was entirely proper to give relief by way of compensation under the prayer for general relief. Whether, in any event, an action at law could have been maintained upon the facts of this case, we do not determine. See Davis v. Coburn, 128 Mass. 377, 382; Johnson v. Johnson, 120 Mass. 465.
The award for the value of the use of the land while the title was in the trustee was proper, under section 4273. The plaintiff had the option to recover the profits which the defendant obtained from the land, or the value of its use. The trial court awarded the latter, and the evidence, in our opinion, supports the award. The defendant retained the title for more than three years before consummating the sale and transferring title to Lord. The fact that defendant did not crop the land each year is not material, for the 'basis of the award is not profit obtained, but the value of the use.
In our opinion, the facts found by the trial court are fully sustained by the evidence. The judgment was proper, and will be affirmed.
Rehearing
ON REHEARING.
A rehearing was ordered as to the -amount awarded to the plaintiff for the value of the use of -the premises. The trial court found, from the -testimony taken before the referee, “that the value of the use and -occupancy of the land for the 3'ears 1898, 1899 and 1900 -was $2.50 per acre,' making a total value for all of said years -of the sum of $1,200an-d we approved the finding upon -the theory that the defendant was liable for the value of the use of the land after he had -obtained the sheriff’s -deed, and until he sold it to Lord, whether he farmed -it -or not. We are convinced that in this we were in error. The defendant had title for approximately three years, but he used -the land for cropping purposes only -one year. The fact that he had acquired title, and held it in trust, did not obligate him to farm -the land. He cou-ld not use the property for his own benefit, and, if he did, he was liable for its -use. But he could refrain from using it without incurring any liability. The estimate of $2.50 per acre is for a cropping season, the land having no -other value than for cropping purposes. Defendant did not -crop it in 1898. In fact, he did not get the sheriff’s deed until the cropping season had closed. He s-ummer-fallowed the land in 1899, and did not crop it, but did crop it in 1900. The sale to Lord was made early in the next year.
The judgment mus-t therefore be reduced to the extent of the amount allowed for the years 1898 and 1899, to wit, $800, an-d as thus modified -it will be affirmed. Appellant will recover his co-sts
in this court.