86 N.W. 969 | N.D. | 1901
This is an action in equity, wherein the plaintiff seeks to recover from the defendant, as an involuntary trustee, the value of certain real estate, the title of which, he alleges, the latter fraudulently obtained from him, and thereafter conveyed to another. The trial was to the court without a jury, and resulted in a judgment in plaintiff's favor in the sum of $2,096.06. Defendant has appealed from the judgment. In addition to certain questions of law, to which reference will be hereafter made, appellant presents for review certain questions of fact, and, for the purpose of securing such review, has caused a statement of case to be settled, embracing all the evidence offered in the trial court, with a proper specification of the facts which he desires to have reviewed. As preliminary to a consideration of the questions presented, we state certain
Counsel for appellant presents the following questions of fact for review: “(1) Did defendant agree to extend the time within which plaintiff might redeem from the foreclosure sale beyond the year limited by law? (2) Did plaintiff offer to pay defendant the amount necessary to redeem from the foreclosure sale? (3) Did defendant cheat, wrong, or defraud plaintiff in any way? (4) Did plaintiff rely upon any promise made by defendant regarding the redemption from the mortgage sale? (5) What was the value of the land in December, 1894, and January, 1895?” The trial court found the value of the real estate was $2,250 at the time in question, and resolved each of the other questions against the appellant. After an independent examination of the evidence contained in the record, we have reached the same conclusion. On the question as to the alleged extension of time of redemption, and offer to pay, the testimony of plaintiff and defendant is squarely in conflict; but the facts and circumstances surrounding the transaction, which are not in dispute, leave, no doubt in our minds that the promise was made as alleged, and found by the trial court, and that plaintiff offered to redeem, just as he claims. The testimony does not, in our judgment, admit of any other interpretation. On the question of the value of the land the evidence covers a wide range, but the amount found by the trial judge is clearly favorable to defendant. A number of witnesses place the value at from $2,500 to $3,000. In defendant's deed to his brother the consideration recited is $3,000. It also appears that on a former trial a jury found the value at $3,000. The evidence certainly does not warrant a reduction of the value found by the trial court.
We come now to a consideration of the judgment pleaded -in bar. In his answer defendant alleges, for a further and second defense, “that on the 30th day of January, 1899, in an action then pending in the District Court of Walsh County, wherein this plaintiff was plaintiff and this defendant was defendant, for the same cause of action as that set forth in the complaint herein, final judgment was duly rendered and entered, after a trial of said action on the merits, adjudging that plaintiff take nothing thereby, that said action be dismissed, and that defendant recover his costs and disbursements therein, which judgment is now in full force and effect.” The complaint, answer, findings of fact, conclusions of law, order for-judg
Counsel for appellant also takes the position that in any event the plaintiff is ixot entitled to judgment for the value of the land, but that his recovery, under the facts of this case, is limited to the proceeds derived from the sale to his brother. This contention cannot be sustained. Independent of the statute, no doubt can exist that plaintiff can recover the Value of the real estate wrongfully and fraudulently acquired and sold by defendant. As was said in Long v. Fox, 100 Ill. 43, “no rule of law is better settled than that where a trustee wrongfully converts to his own use the trust property, or any part of it, the cestui que trust, is entitled in equity to a personal decree for the value of the property so converted.” Hill, Trustees, 522; Perry, Trusts, § 847. And this without regard to