Day, Oh. J.—
l. trusts: con-chaser with ^ notice. The evidence is very voluminous, and the facts are quite complicated. In a case so much involved, it is not possible for the mind to reach any determination in which it will firmly rest with an aiqdj-Qg conviction of its correctness. The most that can be hoped is, that a conclusion will be attained that is more reasonable and rests upon evidence moro convincing and satisfactory than any other which could be evolved from the testimony introduced. A detailed statement of the evidence submitted with this case would neither interest the profession nor advance the ends of justice. It is sufficient to say, that the testimony submitted in the abstract has received a careful examination by each member of the court, and that, while it is not free from conflict and doubt, the facts in favor of which it preponderates are as follows, to wit:
On the 14th day of October, 1852, H. W. Sanford entered for the plaintiff the E. N. W. J, sec. 9, town. 87 N., range 1 west, taking the title in his own name, executing to plaintiff a title bond therefor, and receiving from plaintiff, in consideration thereof, his note for $115, payable in one year, with interest, at twenty per cent after due. *57Patrick D. Lane, former husband of the defendant, Johanna Doyle, advised the plaintiff to purchase said land, and had full knowledge of the terms of his contract with Sanford. On the 17th of January, 1853, the plaintiff borrowed of Sanford $80, for which he gave his note for $100, payable in one year, secured by mortgage on the ~W. J, N. E sec. 9, town. 87 N., range 1 ~W. In April, 1853, the plaintiff went to California. ’ He left various articles of personal property with Patrick D. Lane, those which are satisfactorily established by the testimony being the following, to wit: House logs of the value of $20; one cow of the value of $30; one heifer of the value of $12; ten hogs of the value of $25. Lane, as the agent of Eyan, agreed to pay Sanford, at their maturity, the amount of the two notes before named. Lane appropriated to his own use the property left in his custody. On the note of $115 executed by Eyan to Sanford, Lane paid, January 25, 1855, $36.10; May 28, 1855, $100; November 29, 1855, $20; and he procured a deed to be made to himself by Sanford for the said E. •§•, N. W. ■£, sec. 9, in consideration of which the note was executed. On the note of $100, Lane also paid, February 3,1851, $18; July 2, 1855, $50 ; November 29, in fall, $65; and he procured an assignment to himself of the same, and of the mortgage given to secure it. In 1856, Lane commenced an action against Eyan upon said note of $100, and upon various items of account, and, after his decease, the action was prosecuted by the administratrix of his estate, Johanna Lane (now Doyle), who, on the 30th of June, 1857, obtained judgment by default against Eyan for the sum of $511.76. Afterward Johanna Lane, administratrix, etc., commenced another action against Eyan on the same note and account, and, on the 19th of March, 1860, obtained judgment against Mm. for the sum of $211.12. No personal service of either of those actions was had upon Eyan. In the latter, one M. B. Mulkern, but without previous authoritv from Eyan, entered an appearance for defendant.
*58Ryan, however, subsequently so far ratified and recognized his act as to pay him for the service rendered. The account upon which these judgments were obtained is the same as that which is made the subject of cross demand in this action. Although the evidence does not disclose the fact, yet it is a fair inference from the arguments of counsel upon both sides that the first judgment was obtained without any jurisdiction of the person of defendant or m rem, and that it is of consequence void. In August, 1862, Ryan sent to Mrs. Lane from California $125, and, in March, 1863, the further sum of $50. In 1866, Ryan returned from California, and then learned for the first time of the judgments against him, and the cbndition of his property. Testimony was introduced bearing upon many other incidental and collateral facts, but only those above stated are necessary to a determination of the case. It is clearly established, that Patrick Lane, at the time he paid the note of $115 and took to himself the deed tp the land in controversy, had knowledge of the contract of Ryan for the same. Lane, therefore, became trustee of the title for Ryan; and his heirs, the defendants, succeeded to the estate burdened with the same trusts which attached to it in his hands. The amount paid by Lane, on the $115 note, was money advanced to the use of Ryan, upon which Lane is entitled to but six per cent interest instead of twenty per cent, which was allowed by the court below. The entire amount of these payments, with the above-named interest to the present time, is $302.86. As an offset to this, the plaintiff is entitled to interest at the same rate and to the same time, upon the value of the property left with Lane, and by him appropriated, and upon the $115 forwarded to Johanna Lane. These sums taken together, with the interest thereon, amount to $441.65.
*59^ráo^lttorfzea anoe*58It is reasonable that this sum should go in liquidation of the amount advanced by Lane upon the land in question, *59rather than in discharge of the judgment of $244.42 before alluded to. Applied in this way is left $138.79, to be credited on said judgment. This judgment Ryan, having adopted the acts of the attorney who appeared for him, by paying him for service, should discharge, together with the costs thereon accrued.
^ijotatioks3fraud. It is claimed that Ryan’s action is barred by the statute of limitations, under section 2740 of the Revision. The evidence, however, shows that Ryan did not discover the fraud until his return from Californiain 1866. The statute of limitations did not begin to run till that time. Rev., § 2741.
A decree will be entered, appointing a commissioner to convey to Michael Ryan all the right, title and interest of the defendants in and to the said E £ of N. W. J section 9, township 87 N., range 1 "W.; also directing that the said judgment before referred to against Michael Ryan for the sum of $244.42 be credited with the sum of $138.79, and that the balance, together with the costs acci%ed thereon, be enforced against the said Ryan. The defend* ants will pay the costs of this suit, in the district court, and of this appeal. Eor the purpose of entering this decree, this cause is remanded to the court below.
Thus modified the decree of the district com-t is
Affirmed.