122 P. 915 | Mont. | 1912
delivered the opinion of the court.
This action was commenced on July 19, 1911, against Christian Yegen and Peter Yegen. Summons was served upon Peter Yegen on August 17. On September 11 his default was en
1. The first ground of the motion to set aside the default is a mistake on the part of defendant Peter Yegen; but the affidavit
2. The second ground of the motion presents the same question
3. The complaint alleges that on November 26, 1902, G. W. Conniek was in possession of a section of land and one hundred and twenty-eight shares of the capital stock of the Big Ditch Company, a corporation, under a contract to purchase the same from Edward G. Bailey; that there was then due on the purchase price of such property installments aggregating $5,580, with interest at seven per cent per annum, the last of the installments to become due April 1, 1907. It is alleged that on December 26, 1902, an agreement was entered into between Conniek and defendant Christian Yegen, by the terms of which Conniek transferred his interest in the land and certificates and also transferred other personal property consisting of horses, farm machinery, etc., to Christian Yegen upon an understanding and agreement that Christian Yegen should pay the balance due on the Bailey contract as the installments became due; that Christian Yegen should be allowed interest on the sums so paid out by him at the rate of one per cent per month. The complaint in paragraph 3 then proceeds: “That it was further provided that said Christian Yegen should hold said property in trust until such time as the
It is alleged that about December 4, 1907, Christian Yegen wrongfully, unlawfully, and fraudulently transferred and delivered to the defendant Peter Yegen twenty [18] shares of the capital stock of the Big Ditch Company, and that Peter Yegen now holds the same in his own name, and that he took such stock with full knowledge that the same was a part of the trust estate. It is alleged that about December 1, 1907, G. W. Connick, for value, sold, assigned, and transferred to this plaintiff, a corporation, all his right, title, and interest in the property transferred to Christian Yegen together with all-rights of action which he
The theory upon which the complaint proceeds is that the trust was terminated prior to the commencement of this action, and therefore plaintiff, as the owner of the residue of the estate, can sue in its own right for the property which under the terms of the trust agreement was to be turned back upon the entire fulfillment of the object of the trust; but the complaint is fatally defective in failing to allege facts which show that the trust has been terminated. There is such brief reference to the terms of the trust agreement contained in the complaint that it is difficult to determine just who was intended as beneficiary, within the meaning of section 5367, Revised Codes. If the trust was created for the purpose of securing to Bailey the unpaid balance due him, as seems most probable, then Bailey could take advantage of it at any time prior, to its rescission. (Sec. 5389.) The
It is alleged in paragraph 7 of the complaint quoted above that the proceeds from rents, profits, and sales exceeded the amount expended by Yegen; but it fails to allege that the amount received by him was sufficient to pay the installments due to Bailey or to reimburse himself, as provided in the trust agreement, or that Bailey has been paid. It is alleged in that paragraph that on September 29, 1908, Christian Yegen had in his possession a large amount of money belonging to plaintiff, and on that day paid over to plaintiff $4,000; but it is not alleged that this money was derived from trust property. If such was its source, the complaint fails to make the fact apparent.
The complaint is fatally defective in failing to disclose that the trust had been terminated before this action was commenced, and for this reason the judgment and order are reversed, and the cause is remanded for further proceedings.
Reversed and remanded.