129 Minn. 284 | Minn. | 1915
This action was brought to have it adjudged that defendant Edna Oisewski held the title to the Commercial Hotel property in Winona
The facts as found by the trial court are these: Plaintiff and defendant Mary Cisewski are and have been for many years husband and wife. Defendant Edna is their .daughter. On August 29, 1913, plaintiff and his wife were equal owners in common of a fund of $4,337, of which the wife was the custodian. Eor some three years before this date they occupied the Commercial Hotel; they had together planned and negotiated its purchase at a price of $4,200, the negotiations being carried on chiefly by the wife. In July, 1913, the owners of the property raised their price to $4,400, whereupon the plaintiff declared that he would have nothing more to do with the proposed purchase. Defendant Mary then proceeded to buy the property for her own sole benefit, at the price of $4,337. Without the consent or knowledge of plaintiff she used and paid over to the owners of the property the whole of -the fund before mentioned, half of which belonged to plaintiff. . She caused the conveyance to be made to the daughter, defendant Edna, who gave back a deed to defendant. The deed to Edna was recorded, but that from her to defendant was not. Edna had in fact no beneficial interest in the property. The deed was taken in her name and her deed kept off the record to deceive plaintiff, and induce him to believe that he had no right or interest in the property. Plaintiff never consented to the use of his share of the fund in the purchase of the property, and has never ratified or confirmed such use.
As conclusions of law from these facts, it was determined that' the action should be dismissed as to defendant Edna;' that plaintiff was entitled to recover from defendant Mary the sum of $2,168.50 or one-half of the common fund used by defendant in the purchase of the hotel, with interest from the date she appropriated it. Plaintiff was given a lien upon the hotel property to secure this sum, and it was provided that if the sum and interest were not paid within 60 days the property might, at the instance of the plaintiff,
Thereafter, on motion of the defendant, the conclusions of law were amended so as to provide that, if it should 'be necessary for defendant to borrow the sum required to be paid by her to plaintiff, plaintiff should, on written request of defendant, join with her in the execution of a mortgage on the property to secure such loan, or at his option deliver to the lender an assignment of his lien as security for such loan. Judgment was thereafter entered in accordance with the conclusions of law as amended, and plaintiff appealed therefrom to this court.
Was the court justified in giving plaintiff a money judgment instead of the judgment he asked for, an equal interest in the property? To state the question in other words, did plaintiff have an absolute right to be adjudged the owner of a half interest in the property purchased with the fund of which he was half owner, or was there a discretion in the trial court to deny this relief, and give instead a personal judgment, secured by a lien on the property ?
We must accept as correct the finding of the trial court that plaintiff and his wife were equal owners in common of the fund of $4,337 and that plaintiff’s half was held by his wife in trust for him. This was the contention of plaintiff, was sustained by the court and defendant does not appeal. The fund was used by defendant Mary, without plaintiff’s knowledge or consent, and apparently against his wishes, in the purchase of the real estate. That this was a conversion of plaintiff’s share can hardly be doubted, and he clearly was entitled to the relief granted by the trial court, a judgment secured by a lien upon the real estate. But he did not ask for this relief, lie elected to recover his property in its new form. Under the findings defendant’s use of plaintiff’s half of the fund was a breach of trust. Unless there is something in the relation of the parties as husband and wife that changes the case, it would seem fairly clear that plaintiff had the absolute right to choose his own remedy, and that, having elected to claim the property in its substituted form, the court was without power to deny him this relief and compel him to take a remedy that he did not elect. We know of no author
Judgment reversed with directions to amend the conclusions of law and to grant judgment for plaintiff as asked in his complaint.