80 Vt. 496 | Vt. | 1908
The plaintiff seeks to recover on a declaration at law which charges that the defendant fraudulently discharged a mortgage held by him, which secured a note belonging to the plaintiff that was otherwise valueless, and that the property was thereupon sold for cash to one who had no notice of plaintiff’s claim. The defendant questions by his exceptions and argument the sufficiency of the allegation of fraud, the presentation of any evidence tending to show a fraudulent intent, the correctness of the charge as to what constitutes fraud, and the plaintiff’s right to recover in a court of law.
The following facts were conceded at the opening of the trial. Blish executed to the defendant a mortgage of real estate to secure an indebtedness represented by a series of notes, and
The transfer of the note carried with it a proportionate share of the mortgage security, and the defendant afterwards held the mortgage in trust for the plaintiff to the extent of his interest. Keyes v. Wood, 21 Vt. 331. It may be stated as a general proposition that matters of trust are cognizable only in equity, and that a trustee cannot be sued at law by his beneficiary. Perry, Trusts §17; Congdon v. Gaboon, 48 Vt. 52. But a suit at law can sometimes be maintained after the determination of the trust. When a fund has been placed in the hands of a trustee for investment and a specified application of the income, and the principal sum made payable to the beneficiary on the happening of a certain event, and the purpose of the trust has been carried out and the beneficiary has become entitled to the fund, it may be recovered in an action at law, even though the ascertainment of the amount requires the adjustment of a claim for compensation. Lynde v. Davenport, 57 Vt. 597; Parker v. Parker, 69 Vt. 352. A trustee may subject himself to a suit at law by his disposition of the trust estate. When a trustee has, in violation of his trust, so disposed of the trust estate that it cannot be followed, either in its original or substituted form, the beneficiary may sue at law to recover damages for the breach of trust; for he is then forced to rely on the personal liability of the trustee, and has no claim upon his estate superior to that of an ordinary creditor. Lathrop v. Bampton, 31 Cal. 17, 89 Am. Dec. 141.
In this case, the defendant has cancelled the title which he held for the plaintiff’s benefit, under such circumstances that it cannot be reinstated. The only remedy left the pla.int.ifP is to
Our next inquiry is whether the plaintiff’s allegations and proof are sufficient to sustain the judgment obtained. It is not necessary to the plaintiff’s recovery that the discharge should have been fraudulently made in any sense of the term. No question of reasonable proof or of honest belief is involved in the inquiry. It is enough that the defendant discharged the mortgage against the plaintiff’s right and to his damage. The declaration shows a cause of action without reference to the allegation of fraud. A plaintiff need not prove more than is necessary to his recovery, although more be alleged. Bosworth v. Bancroft, 74 Vt. 451. The plaintiff is entitled to recover upon the facts presented by the concessions and by the uncontradicted evidence referred to. So it is not necessary to inquire whether the allegation of fraud was sufficient on motion in arrest, nor whether the finding of fraud was on correct instructions, nor whether there was any concession or evidence tending to establish fraud.
Judgment affirmed.