Bradley Co. v. Bradley

KERRIGAN, J.

In this action plaintiff sought to have the defendant declared an involuntary trustee for the plaintiff

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of certain real property described in the complaint, and to compel a conveyance thereof to the plaintiff, and an accounting for its rents and profits since February 28, 1910.

On the main issue in the case judgment went in favor of the plaintiff, ordering in its favor a conveyance of the property. Defendant appealed therefrom, and said judgment has this day been affirmed by this court. Plaintiff also took an appeal from said judgment, being dissatisfied with that portion thereof which, as the result of the accounting had, awarded to the defendant the sum of $800.21, and gave to her a lien upon the real property for that amount, and this is the appeal which is now before us.

The sole point made by plaintiff is that this provision of the judgment is not supported by the findings.

Summarized, the findings show that prior to February 28, 1910, the defendant held the property described in the complaint in trust for the plaintiff; that on that date she repudiated her trust; that since that time down to June 18, 1915, when the court’s decision was made and filed, she had received as rents for the property certain sums of money, and had made various disbursements on account thereof, with which she was duly debited or credited; that aside from the collection of these rents by her she had during the period mentioned occupied and used a flat constituting part of the real property, and that the reasonable value of such use and occupation was the sum of one thousand six hundred dollars. The court, however, in its conclusions of law, did not charge her with this one thousand six hundred dollai’s.

In this regard, we think, the court committed an error as a matter of law, and that the judgment, instead of awarding to the defendant as the result of the account so taken the sum of $800.21, should, upon the findings in favor of the plaintiff, have decreed the payment to it by the defendant of the sum of $799.79.

It would seem to be too clear to require the citation of authority that a trustee, who “fraudulently refuses” to re-convey property to its legal owner and who repudiates the trust, is not entitled to use or occupy any part of the trust property free of charge; but if the citation of authority be deemed necessary, see