47 P. 828 | Or. | 1897
Opinion by
In due time the referee reported that the indebtedness of C. W. Royal at the time of the execution of the deed by him to the defendant amounted to $1,682.99; second, that these debts had been paid, but it was impossible to determine from the evidence when they were settled, except that prior to August 8, 1878, there had been paid on
No appeal having been taken from that part of the decree establishing plaintiff’s interest in the land in controversy, the only question before us is the state of the accounts between the parties in reference to such matters as are properly chargeable to the land. The court below seems to have proceeded upon the theory that the suit is for a general accounting, and by its decree undertook to adjust and settle the entire account between the parties. But the sole object and purpose of the suit being, as we regard it, to enforce a trust and establish the plaintiff’s interest in a particular tract of land, no questions could be properly tried therein except such as arose out of or were directly connected with the subject-matter of the suit. And, since all matters embraced in the second order of reference relate entirely to the general course of dealing between the parties after the return of plaintiff from the east, and have no connection whatever with the subject-matter of this controversy, but embrace matters wholly foreign thereto, we shall dismiss without further consideration the refere'e’s findings in reference thereto, and shall eliminate all questions of general accounting between the parties concerning matters arising after the return of the plaintiff from the east in 1885, leaving them to be considered in some proper proceeding to be instituted hereafter, if deemed advisable by either of the parties.
The only questions which it seems to us can be properly considered here are: (1) The amount of indebtedness of C. W. Royal, the father of the parties to this suit, paid by the defendant, and properly chargeable to the plaintiff; (2) the value of the improvements upon the property made by him; (3) the amount of money loaned by him to the plaintiff during the time the latter was east attending
The matter of subsidies and subscriptions to street railways and water companies, for which the defendant was allowed credit by the referee and court below, must be entirely eliminated from his account, the evidence very clearly showing they were made on his own responsibility, for his own benefit, and as mere matter of speculation, and in no sense proper charges against plaintiff.
His claim of credit on account of taxes paid is based upon the fact that he paid taxes upon certain mortgages given by himself upon the property, and the evidence in relation to the amount thereof being indefinite and 'uncertain, in our opinion he should be allowed no more than $241, the amount admitted by the reply; nor should he be allowed any compensation for his services as trustee. He, together with his father and mother, had'possession and control of the property and of the incomes derived therefrom during the entire time, for which he has rendered no account, and is not charged in this proceeding with the use and occupation or rents and profits.
The evidence indicates, and it seems to be conceded by the plaintiff, that prior to his trip east to attend school it was agreed that all moneys loaned to him by defendant while thus engaged should be regarded as a charge or lien upon his interest in the land in question, and for this reason the defendant is entitled to a credit therefor. The amount of these advances was $790. These, as we under
Modified.
Decided May 1, 1897.
On Application to File Supplemental Bill.
Opinion by
This is a motion for an order remanding this cause, with permission to the plaintiff to apply to the court below for leave to file a supplemental bill, setting up the loss of the trust property by the defendant since the rendi
Motion Granted.