No. 16,380 | Neb. | Mar 24, 1911
Action in the district court for Gage county for accounting as to certain property held in trust, and for a decree to sell the same for the payment of the sum found due the plaintiff in the matter of the trust estate. The plaintiff had the judgment, and the defendants have appealed.
It appears that on the 3d day of December, 1892, the property now in question, together with certain other real and personal estate, was owned by one Samuel Wymore, Sr., who at that time conveyed the same in trust to Charles M. Murdock, Arthur A. Murdock, and Joseph Pasko, and took their notes therefor in the sum of $8,-819.50; that soon thereafter Wymore left his home in Gage county and established his residence in the state of Nevada; that no payments were made on the notes above mentioned, and the same were renewed from time to time; that in the month of December, 1892, Wymore returned to Gage county for the purpose of disposing of his property and settling up his accounts with the defendants above named; that, being unable to sell or otherwise dispose of the property in question, he conveyed the same, or so much thereof as the defendants had not already dis
It appears: That the first thing done by the Murdocks after the deeds above mentioned were executed was to mortgage Wymore’s home place for $500 to one E. H. Amber. The mortgage was renewed from time to time and finally paid off by Samuel Wymore himself in 1903. In the meantime, although the Murdocks were in possession, control and management of the property, no taxes had been paid thereon. That when Wymore gave Charles M. Murdock the money with which to pay off the mortgage above mentioned, with the instruction from Wymore to take an assignment of the mortgage in his favor, Murdock disobeyed the instruction and had the mortgage released. It further appears that, although the legal title was in the Murdocks, they at all times admitted that they held the property in trust; that Wymore depended on the Murdocks to carry out the terms of the written contract, sell the land, pay the taxes, and turn over to him the amount that liad been agreed upon, to wit, $8,729.50 without interest. It seems to be conceded that they did neither of these things. . When Wymore ascertained the facts in relation to their mismanagement of his estate, he commenced this action. Thereafter, being old and in failing health, he conveyed the property to one George T. Stephenson as his trustee for the purpose of prosecuting this action for and in his behalf; that after the testimony was taken, but before the judgment complained of was rendered, Wymore died, and the action proceeded in the name of the trustee. When the case was finally argued and submitted, the trial court found the facts in substance as above stated, and made an accounting between the parties. It was found that there was due to the plaintiff of the proceeds of the Wymore estate the sum of $6,086.71; that Wymore liad paid certain taxes and incurred certain expenses
Defendants’ first contention is that the district court erred in finding that there was $6,086.71 due and unpaid to the plaintiff as trustee for Samuel Wymore under the contract of March 29, 1899. This contention has compelled us to review the entire evidence contained in the bill of exceptions. This we have done, and we are satisfied of the correctness of the accounting made by the district court. In fact, we adopt his findings as to the amount due as our own. It may be said in passing that, if called upon to determine that amount in the first instance, we might have made it larger than the sum found due by the district court; but, on the whole, we are satisfied with the correctness of that portion of the decree.
Defendants’ second contention is that the court erred in holding that Glen E. Murdock was not the bona fide owner of that portion of the estate which he had obtained from his father, Charles M. Murdock, by and through the intervention of the Lincoln Land Company. We have examined the evidence upon this question, and are satisfied that Glen E. Murdock never paid any consideration for this property; that he was not a purchaser of it in good faith, and therefore the trial court was right in finding that the property in equity still belonged to Wymore.
It is also contended that the statute of limitations had run in favor of Glen E. Murdock at the time this action was commenced. It appears, however, that he never placed the' conveyance by which he claimed title upon the records of Gage county; that in 1899, when the contract in question was entered into, there was nothing of
A vigorous attack is made upon the good faith of Stephenson, the trustee and present plaintiff in this action; hut, the Murdocks having been decreed to have no further interest in the property in question, such an attack is entirely beside the mark. At this stage of the case, no one can complain of the actions of the trustee, except the heirs of the Wymore estate.
A careful examination of the whole record satisfies us that the judgment of the district court was right, and it is
Affirmed.