Woodard v. Wright

Paterson, J. This is an action brought by the plaintiff for a decree adjudging the defendant to be her trustee of the tract of land described in the complaint, and requiring him to execute a deed of conveyance to her. Plaintiff had judgment in the court below, and from that judgment, and an order denying a motion for a new trial, defendant has appealed.

Plaintiff averred in her complaint that the defendant undertook and assumed as her agent, and at her special instance and request, to purchase the land described in the complaint, and take a deed therefor in her name and for her benefit; but fraudulently, and without her knowledge or consent, on the nineteenth day of November, 1877, took a conveyance of the land in his own name and for his own benefit. The defendant admitted that the conveyance was taken in his own name, but ■ denied that it was in fraud of the plaintiff, or against her wish or consent, and averred that the plaintiff knew that the deed was taken in his own name, and that the same was taken at her solicitation and request. He further averred that of the purchase price paid $5,000 belonged to the plaintiff, and the balance thereof, namely, $832.50, was the money of the defendant; that, although the deed was taken in his own name, he received the property in trust for the benefit of the plaintiff, subject, however, to advances of money made and to be made by the defend[204]ant to the plaintiff; that since the purchase was made he has paid over to the plaintiff all of the net income arising from the property; that, in addition to the net income derived from the property which has been paid over to the plaintiff, the defendant has paid, laid out, and expended for, and loaned to the plaintiff, since the creation of the trust, and at her special instance and request, various sums of money, amounting to $7,383, in which sum he claims the plaintiff is indebted to him.

The court found that, at the request of the plaintiff, defendant purchased the property, and took a deed in his own name to secure the repayment to him of the sum of $832.50 only, the same being the balance of the purchase price loaned by him to plaintiff to make the purchase; that of the purchase price, to wit, $5,832.50, $5,000 belonged to the plaintiff, and the balance, $832.50, to the defendant; that defendant, immediately after the purchase, and pursuant to his agreement with the plaintiff, took possession of the land as security for the money advanced to make the purchase, and has ever since been in possession of the same; that the defendant, since the purchase, has laid out considerable money for taxes and for necessary repairs, and for expenses of farming the same when the premises were not leased. The court further found: “10. That the rents, issues, and profits arising from said land and premises, and collected by the defendant since the date of purchase, up to the date hereof, are more than sufficient to pay the $832.50, the amount advanced to purchase, and the interest thereon from the 19th of November, A. D. 1877, at the rate of seven per cent per annum up to the date hereof, and all the taxes on said premises paid by defendant, and all the sums of money expended by him for the necessary repairs of said premises, and for the expenses of farming the same, when the said premises were not leased..... 12. That the defendant has never paid to plaintiff any part of the income of said land and premises, as such,