27 Ind. App. 271 | Ind. Ct. App. | 1901
Lead Opinion
The action was brought by the appellee. The complaint is in two paragraphs, the first paragraph being on account and attachment and garnishment, and the second paragraph.being to quiet title to certain money.
The second paragraph of complaint alleges that by false pretense, stating the facts, defendant Miller fraudulently procured possession of certain cattle belonging to plaintiff Stephenson, and sold the same for cash and deposited $250 of the money so received in the Citizens Bank of Orleans; that said money is still in said bank. That Miller turned over to said Albertson $185 of the money so derived, and that Albertson still retains said money. Plaintiff further avers that Miller is wholly insolvent. “Wherefore, plaintiff prays the court to quiet title to said money in the name of Eli B. Stephenson, plaintiff herein, and asks judgment for $560 and all other proper relief.
The defendants McCart and Talbott filed a cross-complaint in which the facts set up in their second paragraph of answer are alleged, praying this money be declared their money and paid over to them. Defendants McCart and Talbott filed an additional paragraph of answer and of cross-complaint, alleging substantially the same facts as in the original cross-complaint, with the additional allegation of damages to the amount of $50 arising from the wrongful acts of said Stephenson in bringing this suit. To these paragraphs of cross-complaint demurrers were filed and overruled and exceptions taken. The court made a special finding of facts and stated conclusions of law thereon and rendered judgment for the plaintiff.
The facts as shown by the special findings are substantially as follows: The plaintiff Stephenson was a farmer. and stock raiser; McCart and Talbott were lawyers, part
On the morning of the 19th of July, 1898, McOart and Talbott entered into a contract with Miller to defend him against the charges growing out of the cattle transaction, and Miller agreed to pay McOart and Talbott $500 for their services, and to turn over and give to McOart and Talbott the $185 in Albertson’s hands and the $250 in the Orleans bank. Miller at the same time gave McOart and Talbott an order directed to Albertson comtnanding him to turn
Plaintiff herein instituted this action and caused a writ of attachment and garnishment to be issued against and served on Albertson and the Bank of Orleans after the aforesaid assignment had been made.
The court further found that the services performed by McCart and Talbott and to be performed for defendant Miller were reasonably worth $500. • That defendant Miller was disposing of the money received from the sale of the cattle with the intention of cheating the plaintiff Stephenson and others from whom he had purchased cattle. “That McCart and Talbott knew at the time of the execution of the written order by Miller, directed to George M. Albertson, to turn over the $185 and the certificate of deposit to said defendants McCart and Talbott as their property, that the plaintiff Stephenson was claiming that the defendant had defrauded him out of his cattle by false pretense and sold the same, and defendants McCart and Talbott knew that said money and $15 in the hands of Port Easley was all the money that defendant Miller then had.”
On this state of facts the court stated its conclusions of law as follows: (1) “That the defendant Miller obtained the cattle aforesaid from plaintiff, Stephenson, by reason of criminal false pretenses as defined by §2204 E. S. 1881 and
The appellants have separately assigned as errors numerous rulings of the court, and have excepted to and assigned as error each conclusion of law.
The special findings must show all the facts necessary to warrant the conclusions of law. If the findings are silent as to any material fact, it will be presumed to be against him on whom the burden rests. The findings show that McCart and Talbott gave a valuable consideration for the money they claim in this action. It is found that their services were worth $500; were contracted and in part paid for by the assignment of $185 and the certificate of deposit for $250. At the time of the execution of the written assignment, McCart and Talbott had agreed to defend Miller, and
The third conclusion of law cannot be sustained in the absence of a finding that appellees McCart and Talbott had knowledge before they gave a valuable consideration for the money claimed that Stephenson was claiming the identical money on deposit. The record presents no such findings. It is not enough that evidentiary facts are found. A special finding must find the ultimate facts, and not mere matters of evidence. Christian Church v. Shoemaker, 20 Ind. App. 321.
The presumption in the case before us is that in the absence of a finding that McCart and Talbott had knowledge that appellee claimed the money in controversy, or that it was derived from the sale of Stephenson’s cattle, is that they did not have such knowledge. One who in the usual course of business receives money in payment of a valuable consideration is presumed to receive it without knowl
Counsel for appellee argues that if one person obtains the money or pfoperty of another through fraud or deceit, the title of the owner can not be destroyed by the fraudulent dispossession. That Miller so obtained appellee’s property from which he derived the money in question, and that the wrongdoer had no title in the same which he could transfer. They cite in this connection from our Supreme Court Alexander v. Swackhamer, 105 Ind. 81, 55 Am. Rep. 180; Curme, etc., Co. v. Rauh, 100 Ind. 247, 251; Moore v. Shields, 121 Ind. 267.
In the case first named, the court held that the person to whom the property was delivered by means of fraudulent devices did not become the purchaser, even though a sale was intended; and as there was no purchaser there was no de facto sale. In the course of the opinion the court says: “If the owner of goods is induced by fraudulent representations to deliver them to an irresponsible purchaser, in pursuance of a contract of sale to him, and such purchaser, while in possession, transfers them for a valuable consideration to a third person, who acts in good faith, without notice of the fraud, the title of the good-faith purchaser will prevail over that of the first owner.” Citing Curme, etc., Co. v. Rauh, supra, and Parrish v. Thurston, 87 Ind. 137.
In Curme, etc., Co. v. Rauh, supra, it was held that appellants, who claimed the property in dispute as against the original owners, were not bona fide purchasers.
In Moore v. Shields, 121 Ind. 267, it was held that a broker who sells and obtains money for worthless paper which he knows has been fraudulently issued in violation of
The special findings do not find bad faith upon the part of appellants McCart and Talbott, nor their .knowledge of fraud upon the part of Miller; nor that the money on deposit was realized from the sale of appellee’s property. They do show a valuable consideration issuing from McCart and Talbott. The special findings also fail to sustain the fourth and fifth conclusions of law.
It does not seem necessary to consider the other questions discussed.
Eor the foregoing reasons stated, the judgment is reversed, and the trial court directed to grant a new trial.
Dissenting Opinion
Dissenting Opinion on Petition foe Reheaeing.
The special finding shows the following facts: (1) That appellee was a farmer and stock raiser in Washington county, and prior to July 8, 1898, had never met or known appellant Chas. Miller. (2) That Chas. Miller was at that time a citizen of Orange county, and had been for four years; that he had no occupation; that during said time he was at divers times employed as a farm hand by various persons; that he was a man of no property or money, except such sums as he may have received at divers times for his manual labor as a farm hand. (3) That appellants McCart and Talbott were and are partners engaged in the practice of law in Orange county. (4) That on July 7, 1898, appellant Chas. Miller was in Crawford county making inquiries of various persons “about cattle feeders of about 1,000 pounds” for sale in the neighborhood, and stated that his name was D. D. Eisher, and that he wanted to buy feeding cattle for “a man up in Ohio” who lived about eighty miles from Cincinnati; that he remained in the neighborhood over night, and the next day repeating
The court concluded that the law on the foregoing facts was (1) that the cattle were obtained by criminal false pretenses as defined by §2204 R. S. 1881; (2) that whatever interest Miller had in the money and certificate was transferred to the other appellants; (3) that McCart and Talbott were not innocent holders; (4) that Miller had no interest in the property held by Albertson; (5) that appellee Stephenson was entitled to the $185 in money and the $250 evidenced by the certificate of deposit, and to have his title quieted thereto. There is some matter of an argumentative nature in the conclusions of law which has been eliminated.
The disposition of this appeal depends upon the facts thus found and the law thus stated. The pleadings are sufficiently comprehensive to allow either party any relief to which they might be entitled upon the finding.
Appellants assert that appellee has elected to treat the money derived from the sale of the cattle as the property of Miller. The first, paragraph of complaint upon which the
The amended complaint has relation to the date of the commencement of the action, and was a matter occurring in the progress of the original case. Chicago, etc., R. Co. v. Bills, 118 Ind. 221; School Town v. Grant, 104 Ind. 168; Evans v. Nealis, 69 Ind. 148.
When Miller was first arrested, appellee claimed the certificate of deposit and the cash as being the proceeds of his cattle. The claim seems to have been persisted in and it became the duty of the court to render such judgment within the issues as should dispose of the case and be just to the parties.
The findings show that the $250 deposited in bank by and the $185 which Miller had upon his person was derived from the sale of cattle purchased by false pretenses as set out; “but what part of it was derived from the sale of plaintiff’s ten head and the three head received from Earr the court can not state.” That Miller had received more money from the sale of appellee’s cattle than the amount on hand is shown. The question now must be considered as one between Miller and the appellee alone. No other per
The law was very aptly stated by this court as follows: “The true owner of property has the right to have his property restored to him, not as a debt due and owing, but because it is his property wrongfully withheld. As between the cestui que trust and the trustee and all persons claiming under the trustee, except purchasers for value and without notice, all the property belonging to the trust, however much it may have been .changed in its form or its nature or character, and all the fruits'of such property, whether in its original or altered state, continue to be subject to and affected by the trust. * * * It was formerly held that these rules came to an end the moment the means of ascertaining the identity of the trust property failed. * * * In the case of trust moneys commingled by the trustee with Ms own moneys, it was held that money has no ear-marks, and when so commingled the whole became an indistinguishable mass and the means of ascertainment fails. But equity, adapting itself to the exigencies of such conditions, finally determined that the whole mass of money with wMch the trust funds were commingled should be treated as a trust.” Windstandley v. Second Nat. Bank, etc., 13 Ind. App. 544; Pearce v. Dill, 149 Ind. 136.
A substantial identification is all that is required. Shepard v. Meridian Bank, 149 Ind. 532; Bundy v. Town of Monticello, 84 Ind. 119, 128. The appellee’s cattle were
Applying these legal principles to' the facts found, the conclusion is irresistible. The money that was in Miller’s possession is not his money. líe has no claim upon it. It is a less amount than he realized from the sale of appellee’s cattle, and he can get no advantage from Lis own act in commingling appellee’s money. If he were allowed to keep the entire fund as against appellee on account of the possible interest that some third person who is not before the court may have in it, then he would upon the same ground be able to hold the entire fund against the other person and thereby wholly defeat any attempt to regain any part of it. Whatever difficulty there may be in adjusting the rights of appellee to this fund as between himself and other persons who have been similarly defrauded, there can be none as between appellee and Miller. Miller probably would not be selected by the other parties as the guardian of their interests, and he can not be now permitted to assume that position, to his own advantage.
It is not the policy of the law in any case to permit the wrongdoer who commingles goods wrongfully procured to profit thereby. “All the inconvenience of the confusion is thrown upon the person who produces it, and generally it is for him to distinguish his own property or lose it.” 6 Am. & Eng. Ency. of Law (2nd ed.) 596.
. The wrongdoer forfeits his interests to the other party. 6 Am. & Eng. Ency. of Law, (2nd ed.) 594. Brackenridge v. Holland, 2 Blackf. 377, 383, 20 Am. Dec. 123.
Do appellants McCart and Talbott occupy any better position than Miller? If so it can only be as bona fide purchasers or transferees for value and without notice.
It is the settled rule that if facts are not found in a special finding they will be presumed as against the party who has the burden of proof. Rice v. City of Evansville, 108 Ind. 7.
The appellants McOart and Talbott filed answers in the court below setting up good faith, valuable consideration and absence of notice on their part. These allegations are affirmative and the burden of proof upon the record will govern in the case. The record in fact shows such affirmative allegations by said appellants. 5 Am. & Eng. Ency. of Law (2nd ed.) 5. Aside from the “burden of proof upon the record” the law casts the burden upon them.
It is necessary in order to bring a man within the category of a bona 'fide purchaser for him to show (1) that he has acquired a legal title. (2) The party relying upon this defense must show that he gave a valuable consideration. (3) The purchaser must be free from notice up to and including the consummation of his purchase and the full payment of the price. Baily Onus Probandi, 303. 2 Pomeroy’s Eq. §752, et seq. Tone of these propositions are established by the findings.
The burden must of necessity be and is upon the claimant, since he knows the facts connected with his purchase as the plaintiff can not be expected to know. Palmer v. Poor, 121 Ind. 135, 6 L. R. A. 469; Harbison v. Bank, 28 Ind. 133, 92 Am. Dec. 308; Zook v. Simonson, 72 Ind. 83; Baldwin v. Fagan, 83 Ind. 447; Mitchell v. Tomlinson, 91 Ind. 167; New v. Walker, 108 Ind. 365, 373.
The defendant “sought to show that he purchased the property from an immediate purchaser for value and with
The special finding fails to show that appellants McCart and Talbott were innocent purchasers. They therefore are charged with notice of the infirmity of Miller’s title, and, as against the appellee, with regard to this money, occupy the same position that Miller does.
Indeed, if the burden of proof were otherwise, the facts displayed are sufficient to establish the negative proposition that they were not innocent purchasers. Shirk v. Neible, 156 Ind. 66.
This is not a case where money has been received in the usual course of business. Appellants McCart and Talbott have not received anything. In the language of the special finding “Rever having got possession of such certificate”. The transaction was hot a usual one. It was between a man then in custody upon a charge of a very grave crime, of Avhich it has transpired that he was guilty, and his lawyers, who had theretofore acted for and consulted with him relative to the facts. They knew the charge, the situation, and if they did not knoAv Avhose money it was they were proposing to take, it Avas their own fault. The law will not permit the money taken from appellee to be used for such purposes and under such circumstances. Said appellants were put on inquiry and are charged with notice. Mar honey v. Qano, 2 Ind. App. 107. Eor the reasons given I think the petition for a rehearing should be granted.
Black, O. J. — I am inclined to agree with the conclusion reached by Roby, J., in the foregoing opinion, but the majority adhering to the original decision the petition for a rehearing is overruled.