104 P. 743 | Utah | 1909
(after stating the facts as above).
We think the finding- of the court that William M. Wad-dell came rightfully into the possession of the deed to the Idaho land, and that he destroyed the same, believing that he had a right to do so, is against the weight of the evidence, and therefore erroneous. The facts' and circumstances leading up to and surrounding the destruction of the deed, when considered in connection with the testimony of plaintiff, tends to show that respondent William M. Waddell must have known that he had no right to destroy the deed. Plaintiff testified that, soon after the death of Isaac M. Waddell, she saw the deed at her home, and heard it read in connection with the last will and testament of the decedent; that, after the documents were read, the deed was put into a desk with other private papers of Isaac M. Waddell; that she afterwards searched for the- deed, but could not find it. Respondent William M. Waddell testified that he obtained possession of the deed in the presence of his father about two weeks before his father’s death; that on the same day he got possession of the deed he took it to his private office
It is contended on behalf of respondent that the testimony of plaintiff wherein she says that the deed to the Idaho land was among the private papers of her husband after his death is discredited, and ought not to be believed, because she never discussed the matter of the missing deed with William M. Waddell until one year and six months after she discovered that it was lost or had been taken away, and that one year and seven months after her husband’s death she “deeded to the defendant William M. Waddell a portion of the old homestead lot which had been distributed to her.” The evidence shows that respondent William M. Waddell lived with plaintiff — was one of the family — from the time he was thirteen until he was nineteen years of age. When he returned from college, he again made his home with plaintiff and her husband, and was living with them at the time of his father’s death. The record also shows that plaintiff was very much attached to William M. Waddell, and had great confidence in him. When he went into business for himself, she mortgaged property and enabled him to borrow one thousand dollars with which to purchase furniture and fixtures for his office. This debt she was compelled to pay. She gave him the land upon which he built his residence. His testimony wherein he states that- plaintiff let him have this piece of ground as a part of his share of his father’s estate is entitled to but little, if any, weight. At the time'this conveyance was made, William 34. Waddell had been advised of the terms of
Counsel for respondent Waddell admit that the $2250 realized by him from the sale of the Idaho land constituted a trust fund of which appellant, plaintiff, was the sole beneficiary. Appellant contends that at least some of this fund was expended by respondent in making improvements on that part of the old homestead lot which she deeded to him, and that he took a portion of the trust fund and paid at least sixteen monthly installments of $22.80 each as they became due on the loan of $2250 which he obtained from the Union Savings & Investment Company with which to pay for the construction of the dwelling house mentioned, and that she is therefore entitled to a lien on the dwelling house and the land upon which it was erected, also on the two dogs herein-before mentioned for that portion of the trust fund so' expended, and that the findings of the court on the issues involving these questions are erroneous. As we have observed, the land upon which the dwelling house and the improvements -mentioned were constructed was conveyed by appellant to respondent William M. Waddell July 2, 1904, and the loan of $2250 from the Union Savings & Investment Company with which to pay for the construction of the house was obtained October 7, 1904, and the evidence without conflict shows that the house was practically completed by June, 1905, several months prior to the sale of the Idaho property. Therefore, unless it is made to appear that the payment of one or more of the installments of $22.80 on the loan ob-táined by Waddell to build the house were made out of the trust fund, the findings of the court on this point will have’ to stand. The first payment ($750) on the Idaho land' was
Applying the foregoing rule to the facts in this case so far as we have reviewed them, it follows that when Waddell on January 3, 1906, drew' $1500 out of the fund with which to pay the expenses of his trip east, $1067.50 of this sum was his own money and $432.50 was money which he held in trust for plaintiff. And it will also be presumed that Wad-dell in defraying the expenses of himself and wife on their trip through the Eastern and Southern states paid out his own money first before he spent any of the trust fund, and that the $325 which he had left of the $1500 when he returned home belonged to and was a part of this fund. This being so, the only money Waddell had on deposit in the bank after he returned from his Eastern trip (February 9, 1906) until December 29, 1906, were trust funds. We therefore have $544.87 of the trust fund $750 invested in property now in the possession of the defendants Waddell and his wife. In concluding the discussion of this part of the case, it might be well to remark that Waddell produced at the trial his check books and stubs for 1902, 1903, and 1904, but was unable, so he claimed, to produce his bank book, or any of his cheek books or stubs for 1905, 1906, or 1907. He was examined at considerable length respecting the purpose for which certain checks were issued against his bank account. Checks upon which he was examined that in no way related to any of the transactions connected with the property involved in this suit he remembered very distinctly. Transactions of this character which occurred in the regular course of business and involved but a few dollars, and to which he attached no special importance, he was able to, and did when questioned thereon, explain every detail relating to or growing out of the particular transaction; Whereas, respecting other and subsequent transactions which involved hundreds of dollars of the trust fund, he would in some in
In the latter part of the year 1906 (November or December) respondent'William M. Waddell received the last payment ($1500) on the Idaho land and deposited the money in the hank. He testified that he also deposited $1000 of his own money on or about the day he deposited the $1500. He had but one bank account. On this- point he testified in part as follows: “All the money I got was mixed. Did not have separate bank accounts for it. . . . Ever since I received the $2250 (referring to the trust fund) I have kept all my money either in my pocket or in my bank account, and have paid out whether op account of the dogs or for other things money from the bank account by check or out of my pocket indifferently, and have never had any special fund for land or business, or dogs, or anything.” In January, 1901, Waddell paid five hundred dollars for a dog called Southport Silver. On January 19, 1907, he made a payment of ten dollars on his piano out of this fund. On December 3, 1906, and in the latter part of each succeeding month thereafter (February, May, and June excepted) to and including September 28, 1907, Waddell drew a check for $22.80 against this fund. As hereinbefore stated, none of -these checks were produced at the trial' notwithstanding plaintiff in open court requested Waddell to produce them. The evidence, however, as we have observed, is all but conclusive that these checks represented installments paid on the mortgage given by Waddell to the Hnion Savings & Invest
The equitable doctrine applicable to oases of this character, where a person receives money which equitably b&longs to another and converts it into another species -of property, is well illustrated by Sir George Jessel,
“The doctrine of equity, as regards property disposed of by persons in a fiduciary position, is that, whether the disposition of it he- rightful or wrongful, the beneficial owner is entitled to the proceeds, whatever be their form, provided only he can identify them. If they cannot he identified, by reason of the trust money being mingled with that of the trustee, then the cestui que trust is entitled to a charge upon the new investment to the extent of the trust money traceable into it; that there is no distinction between an express trustee and an agent, or bailee, or collector'of rents, or anybody else in a fiduciary position; and that there is no difference between investments in the purchase of lands, or chattels, or bonds, ■or loans, or moneys deposited in a bank account.”
The following cases illustrate and declare the same doctrine; Lowe v. Jones, supra; In re Marsh et al. (D. C.), 116 Fed. 396; Southern Pine Co., etc., v. Trust Co., 141 Fed. 802, 73 C. C. A. 60; Smith v. Township of Au Gres, 150 Fed. 257, 80 C. C. A. 145, 9 L. R. A. (N. S.) 876; In re Mulligan (D. C.), 116 Fed. 715.
It is also a well-established rule of law that, while the burden is on the party whose property has been misappropriated by a trustee to> trace and identify his property either in its original or substituted form, yet,
It is with reluctance that we have come to the conclusions'herein announced, for we fully recognize the well-established rule to be — and we have no inclination whatever to depart from it in this case — that the findings of a
The cause is remanded, with directions to the trial court to set aside the findings of fact and the judgment rendered thereon, and to make findings in accordance with the views-herein expressed, and enter judgment in favor of plaintiff for the $2250 trust fund, and .interest thereon, and that the judgment be declared a lien on the house and lot for $351.67, on the piano for $70, on the dog Belfield Bangle for $270, and on the dog Southport Silver for $500, interest to be computed on the several amounts from the time-they were 'taken from the trust fund and invested in the property mentioned. Costs to be taxed against respondent William M. Waddell.
Appellant bas filed a motion in which she asks for a modification of the order in the foregoing opinion, which directs that judgment be entered
Upon further consideration of the case we have come to the conclusion that the motion is well taken, and that appellant should be awarded costs against respondents William M. Waddell and Florence Waddell. It is so ordered.