90 Wis. 39 | Wis. | 1895
It is clear that the action brought by the assignee to set aside the Hixon mortgages as fraudulent was brought by him in his trust capacity, representing all the creditors of McDonald Bros. S. & B. Ann. Stats. secs. 16935, 1702a.
The judgment in that action was necessarily binding upon the assignee, subject only to his right to move for a new trial or to appeal. "Under, the advice of able counsel, and apparently in the exercise of entire good faith, he accepted. the result, sold the mortgaged property (necessarily with the consent of the mortgagees), and paid over the proceeds of sale to the defendants, with the sanction and approval of the circuit court. It appears also that, upon such payment being made, the mortgagees satisfied and discharged the mortgages. Thus, the whole controversy was unquestionably settled; and it is clear that the arrangement was one by which both parties mutually agreed to settle the entire litigation and waive the right to appeal. Such an agreement, fairly made, constitutes an effective waiver of the right of appeal. Thornton v. Madison Woolen Mills, 41 Wis. 265; Elliott, App. Proc. § 148; Sloane v. Anderson, 57 Wis. 123, and cases cited on page 129. Hothing is left for adjudication.
The assignee, therefore, had no right of appeal after he had made this settlement. In the absence of fraud or bad faith, whatever binds the trustee in an action brought by .him in his trust capacity binds the cestuis que trustent whom he represents. Richter v. Jerome, 123 U. S. 233, 246; Kerrison v. Stewart, 93 U. S. 155-160; Corcoran v. C. & O. Canal Co. 94 U. S. 741, 745. Ho fraud or bad faith on the part of the trustee is shown in the present case. On the contrary good faith affirmatively appears. Therefore the creditors are bound by the judgment and the settlement thereof «equally with their trustee.
There being no right of appeal, there was no right to set-
By the OouH.— Order reversed, and action remanded with directions to deny the motion.
