Hubbard v. Burrell

41 Wis. 365 | Wis. | 1877

Cole, J.

The first ground of demurrer is, that James Hubbard should have been made a party either as plaintiff or defendant. The answer to this objection is, that by the demurrer the trust is admitted, and it is also admitted that the defendant holds one-half of the proceeds of the sale of the land, which is of the value of $1,250, in trust for the plaintiff, who is entitled to the samel Under these circumstances there is no valid reason against his maintaining an action to recover his share of the funds. The general rule doubtless is, that in suits respecting the trustj property, brought either by or against the trustees, - the cestuis que trust as well as the trustees are necessary parties; but there are exceptions to this rule. “ Thus, for example] if each party is entitled to am aliquot part, such as a quartet or a half of an ascertained and definite trust fund, in such a case he may sue for his own portion thereof without making the other cestuis qui trust (or beneficiaries) parties, for there is no community of property, or other matter, in virtue of which they have, or can have, any interest in the suit or subject of the suit.” Story’s Eq. Pl., § 207 a; Smith et al. v. Snow, 3 Madd., 10; General Mutual Ins. Co. v. Benson, 5 Duer, 168. In this case the share which the plaintiff 'is entitled to receive is definitely ascertained, and there is no reason why he should not have a separate action for its recovery. If the trust should be denied, there would be strong grounds for claiming that James should be made a party in order to establish the trust; but that question is not now before us, and is not intended to be decided. But the facts of the complaint being admitted, each of the beneficiaries has the righf'to demand of tire defendant as trustee the payment of the share belonging to him.

Another objection is, that the complaint does not state facts sufficient to constitute a cause of action.

It appears, according to the statements of the complaint, that the plaintiff and James are the only heirs of Mary Hubbard, deceased; that their mother died in May, 1866; that in March, 1866, she was the owner of certain lands, and, being sick, conveyed such real estate to the defendant, her mother, who assumed to act as the self-appointed agent of the children, then minors, and for their interest, in obtaining the deed. It is alleged that at the time of the conveyance it was agreed that it should be in trust for the children, but, through mistake, the trust was not declared, the deed being made absolute in form; that there was no consideration paid for the conveyance, the sole object being to convey the land to the defendant, in trust for plaintiff and James. Then follow the allegations that the defendant has sold and conveyed the lands to tona fide purchasers; has received the proceeds, which she holds in trust, amounting, etc., and that one-half belongs to the plaintiff, stating the value. It seems to us these facts beyond all question show a cause of action. It is admitted that the defendant originally took the conveyance in trust and as the agent of the plaintiff and James; that by mistake the deed was made absolute instead of fully expressing the trust; that she paid no consideration; that she has sold the lands and holds the proceeds as trustee, etc. This states a cause-of action, Roller v. Spilmore, 13 Wis., 27. This case is much stronger in its facts than that of Siemon v. Schurck, 29 N. Y., 598, where it was decided that although Youngs held the legal title, by virtue of his deed, it was a mere naked title without interest, and one upon which a judgment against him could not fasten an effective lien. It does not appear that there was any mistake in that case, but the purchase was made for the benefit of the plaintiff, an infant, by her parents, who paid the purchase money; yet the trust was enforced as against one claiming under a sheriff’s sale on a judgment against the trustee. Ye know of no principle of law or equity which will permit the defendant to hold the trust funds coming to her possession as stated in the complaint.

A further objection is, that the action is barred by the statute of limitations. The record fails to sustain that objection. When the trust deed was executed, the plaintiff was under disability; and it does not appear that this action was commenced more than a year after he became of age.

The order overruling the demurrer must be affirmed.

By the Oourt. — Order affirmed.