23 S.D. 120 | S.D. | 1909
This is .an aqtion by one B. to foreclose a mortgage securing notes and a large amount of taxes and insur-
The only error complained of is in the court’s finding that only $435 and interest could be collected instead of the $1,964.04. It is the theory of appellant that, inasmuch as the mortgage indebtedness was not a debt against the estate, section 270, Prob. Code, forbidding the purchase of claims against estate by administrator, did not apply. Appellant further contends that the general rules as to obligations of trustees toward beneficiaries do not render him liable and cites as such general rule, sections 1617. 1618, Civ. Code. Section 1617: “In all matters connected with his trust, a trustee is bound to act in the highest good faith toward his beneficiary, and may not obtain any advantage therein over the latter, by the slightest misrepresentation, concealment, .threat or adverse pressure of any ¿find.” Section 1618: “A trustee may not use or deal with the trust property for his own profit, or for any other purpose unconnected with the trust, in any manner.” It appears from the pleadings and findings that the holders of the mortgage were in the possession of the premises in question for years, and that the premises consisted of a-city ¡ot and dwelling thereon. The grounds of defendants’ contention that no debt existed seem to have been that the reasonable value
The determination of this question seems to us very simple. Let us look .at the situation when the plaintiff paid over the $435. He did it believing he was settling a claim that could' have been presented against the estate. If he was correct in his assumption, then it would have to be held either that he purchased the claim, in which case he could recover nothing, or else that he settled same and could recover what he paid. If this was not a claim against the estate, it was a claim against property belonging to the estate, and the plaintiff could in no manner deal with this property to his own benefit under section 1618. That being so, and had plaintiff remained administrator, his legal claim against this estate for settling the debt against-the estate would have been $435, and, on the other hand, if not a debt of the estate, his equitable claim against the land for his acts beneficial to the owners thereof would have been $435. Can the legal claim he might have had against the estate in one case or his equitable claim against the land in the o.ther case be in any way increased or changed by the fact that the beneficiaries of his .acts (two at least of whom were minors, though we think this really immaterial) thought that what he had done was not a benefit, and therefore refused to ratify it? Certainly not. Furthermore, is there any presumption that the plaintiff could ever, except as administrator, have made the settlement he did, or is there any presumption that the heirs could not themselves have effected as good a settlement,, and would not have, if the property had been turned over to them subject to the incumbrances? The plaintiff acquired this claim as a trustee while such trustee, and it is repugnant to all sense of justice and equity that he now get over four times what he paid on the same. Appellant complains bitterly that he was compelled to go to the costs of suit to recover even his $435- This may well be answered by saying that thousands before him have had to sue to recover theii just .dues and have been limited in costs to those allowed by the laws of our land, but in this case it does not appear that plaintiff
For reasons above given, judgment is affirmed.