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trustee by one Lewis V. Caldwell, on the twentieth day of July, 1875, payable, respectively, in one, two, and three years from date, with interest at the rate of 10 per cent. per annum, on which the interest had been paid to July 20, 1877. These notes were all secured by a mortgage on a certain 80-acre tract of land in Rush county, Indiana. The facts in relation to said loan and said mortgage are as follows: On said twentieth day of July, 1875, the defendant Caldwell, being the owner of said mortgaged land, conveyed the same to said Lewis V. Caldwell, who was his son, for the agreed price of $5,200. The defendant retained the $3,600 evidenced by his son's notes, and secured by mortgage on the land so conveyed, but by what arrangement, or upon what kind of an agreement, does not appear. Default having been made in the payment of such three notes, suit was instituted thereon, and for the foreclosure of such mortgage, by Bundy, as trustee, against Lewis V. Caldwell and his wife, and the defendant Caldwell, in the Rush circuit court, and such proceedings were had in such suit as that, on March 5, 1878, the court rendered judgment therein, in favor of such trustee, for $3,820, the amount found due on such three notes, and decreed the foreclosure of such mortgage, and the sale of the mortgaged land, and appointed a receiver to collect the rents of such lands, and apply the same to the payment of the mortgage debt. Afterwards, Lewis V. Caldwell having died intestate, on a complaint filed for that purpose against the widow and heirs at law of such decedent, the Rush circuit court, on the fourth day of June, 1879, revived such judgment and decree against them, and found there was then due thereon the sum of $4,161. Under an order of sale issued on such revived judgment and decree, the lands described therein were sold by the sheriff of Rush county, according to law, on the second day of August, 1879, at which sale appellee, Boyd, trustee for said fund, became the purchaser for the sum of $3,800, out of which sum, after the payment of the costs, there was credited on such judgment and decree $3,670.60, leaving a balance of $525 yet due on such judgment and decree, and wholly unpaid.

(5) After appellee, as trustee for such land, had received a deed from the sheriff of Rush county for the land so purchased, he sold such land, under an order of the proper court, on the fifteenth day of April, 1881, to one Joseph Carter, for the sum of $4,000. Such sale was made at an expense of $65 to the fund, but the trustee had in the mean time received $76.50 from timber sold, and $175 from rent of the land. At the time of the foreclosure sale of such land it was worth $4,500.

(6) Among the assets turned over by appellant Caldwell, at the time of making his final settlement report, to his successor in the trust, was an open account against the beneficiary, Clinton Davis, for the sum of $1,618.79, for which sum he received credit on making his final settlement. The sum originally owing to the appellant Caldwell, from the beneficiary in the trust fund, was $1,978, as shown by a written agreement between them made on the twenty-second day of July, 1874, in the words and figures following: (Here a copy of such agreement is set out, which we omit, but give a summary of all that is material therein.) The agreement contained an itemized statement of the moneys paid by Caldwell to or for the beneficiary, and of the debts of the latter assumed by the former, amounting in the aggregate to said sum of $1,978. It is then stated therein that Clinton Davis had on that day assigned to Caldwell, as collateral security for the repayment of such moneys and debts, a policy of insurance on his life, in the Franklin Life Insurance Company of Indianapolis, for $2,500, and that the annual premiums due thereon were to be paid by Caldwell out of the interest in his hands belonging to said Davis. The agreement then proceeds as follows:

“Now, the said Clinton Davis hereby orders and directs the said James L. Caldwell; as such trustee, out of the interest so due to him semi-annually out of said trust fund—First, to retain and pay all the charges and expenses in

v.9N.E.no.10458

cident to said trust, including tạxes, and also the premium, as the same becomes due, on said policy of insurance; secondly, to pay to said Clinton Davis, on the twentieth of January, 1875, the sum of $350, and on the twentieth day of July, 1875, $350, and $300 semi-annually thereafter, until the foregoing amount of $1,978 shall be paid; and the said Clinton Davis hereby agrees, orders, and directs the said James L. Caldwell to retain all the residụe of said semi-annual interest, as the same becomes due, and apply the same to said sum of $1,978, with interest thereon at the rate of 10 per cent. per annum from the date thereof, until the whole of said sum, including the interest, shall be fully paid. July 22, 1874. [Signed]

“CLINTON Davis." The said account had been reduced, by payments and credits, to $1,618.79, at the time the defendant made final settlement of his trust.

(7) At the time of his resignation and final settlement, the defendant turned the above-mentioned account over to his successor, who has at all times since had possession thereof, and at the same time he also turned over the policy of life insurance above mentioned to his successor in the trust.

(8) Defendant Caldwell, in good faith, paid for and advanced to the said Clinton Davis the said sums of money set out in said settlement, and no part thereof was ever repaid to him, except as above found. The beneficiary, Clinton Davis, at the time said sums of money were loaned to and paid for him by defendant, was insolvent, and a reckless spendthrift, wholly unfit to be trusted with money, all of which was known to defendant; but said Davis had sufficient mental capacity and will power to transact the ordinary business of life. At the time said sums were advanced to and paid for the beneficiary, the only reasonable assurance the defendant had that the same would ever be repaid to him was the agreement of said Davis that the interest on the fund coming to him, as beneficiary, might be retained by the trustee, and applied to the liquidation of said indebtedness, and, in case of his death before the full payment thereof, that the fund should be reimbursed from the proceeds of said policy of insurance. The successors of the defendant have not retained the interest from the fund for the purpose of applying the same to the liquidation of said indebtedness, but have regularly paid such interest, as it fell due, to said Clinton Davis, though they had the power under said contract to have done so, and, had they done so, the fund would long ago have been fully reimbursed for all the sums so loaned and advanced to said Clinton Davis.

Upon the foregoing facts the court stated the following conclusions of law:

(1) The plaintiff is entitled to recover of the defendant the said sum of $525, being the difference between the amount due on said decree of foreclosure and the sum for which the mortgaged lands were bid in at the sale thereof under such sale, with interest thereon at the rate of 10 per cent. per annum from the date of said sale, to-wit, August 2, 1879, collectible without relief from appraisement laws.

(2) The defendant is not liable to account further for the money so paid to and advanced for the said Clinton Davis out of the principal of said trust fund.

Appellant excepted to the first of these conclusions of law, while appellee excepted to the second conclusion of law. Over these exceptions, the trial court rendered judgment, upon and in accordance with its first conclusions of law, in appellee's favor, and against the appellant. From this judgment the appellant alone has appealed to this court, and has here assigned as error, among others, that the trial court erred in its first conclusion of law. Appellee has also assigned here a number of cross-errors, and, among others, that the trial court erred in its second conclusion of law.

All the questions of law at issue between the parties in this cause are fully and fairly presented for our decision, as well for appellee as for appellant, by the errors which each of them, as we have stated, has predicated upon one or the other of the court's conclusions of law upon its special finding of facts. In our consideration of this cause, therefore, we shall confine our opinion to the decision of the questions of law which are presented by or arise under the error and cross-error which are based, respectively, upon the two conclusions of law.

We will first consider the questions presented by the cross-error assigned by appellee upon the second conclusion of law. We have heretofore given a full summary of the facts found specially by the trial court, except that we did not set out a copy of the last will of Eli Dávis, deceased, or of the first item of such will, which created the trust in favor of Clinton Davis, of which appellant was a former trustee, and of which at the commencement of this suit, and since, appellee was the trustee. We set out here so much of the first item of Eli Davis' will as is necessary to a proper understanding of the question arising under appellee's cross-error, as follows: "First. I will and direct that forty thousand dollars be set apart and held by my administrators, or such trustee or trustees as may be appointed by the court having probate jurisdiction, to be held in trust under the direction and supervision of said court for the use of my sons Harvey Davis and Clinton Davis, in equal amounts, during their natural lives, the interest thereon to be paid to them semi-annually by said trustee or trustees, and after their deaths, or the death of either one, the principal to go to their heirs, in equal amounts; * * but it is my express will and direction that neither of my said sons shall have any portion of the principal of the above sum, except in case of absolute necessity for their support, as above stated.”

It was found by the court that Clinton Davis had become indebted to appellant, as trustee of his share of the fund, for moneys paid for and advanced to the beneficiary by the appellant, in good faith; and that, to secure and indemnify appellant on account of such indebtedness, the beneficiary executed to the former a written assignment of a part of the semi-annual interest to become due thereafter, until such indebtedness should be fully paid. It was upon this part of the case, and all the facts found in connection therewith, the learned court stated, as its second conclusion of law, that appellant was not liable to account further for the moneys so paid to and advanced for Clinton Davis out of the principal of the trust fund. This conclusion of law is vigorously assailed by appellee's learned counsel, upon the ground, as we understand their argument, that it was not competent for the beneficiary Clinton Davis to make a valid assignment in advance of any portion of the interest or income of the trust fund. Counsel cite

Counsel cite a number of decisions of the courts of last resort in our sister states which seem to support their position. We do not think it is necessary to examine these decisions, however, because the precise point made was considered and decided by this court adversely to the views of appellee's counsel in Martin y. Davis, 82 Ind. 38.

In the case cited the same item of the last will of Eli Davis, deceased, was before this court for consideration in a controversy between Harvey Davis, the other beneficiary in the trust fund, and Simon Martin, the trustee of his share of such fund, and other persons. . In that case the same point was made as the one now made by appellee's counsel, but this court held that either beneficiary could make a valid assignment of the income bequeathed to him before the time fixed for its payment, the will imposing no restriction in reference thereto. The court there said: “We need not decide in this cause whether the owner of personal property, in a testamentary disposition thereof, may or may not give in trust its income, free from the debts of the beneficiary, or restrain him from the alienation thereof. This will gave the beneficiary an unrestricted interest in the income of the fund during his life. which, where there is no statutory prohibition, as in this case, he may alienate as a whole or in part. Perry, Trusts, § 386; Story, Eq. Jur. 88 974, 1044, 1047; Wood v.Wallace, 24 Ind. 226; Farmers', etc., Bank v. Brewer, 27 Conn. 600.”

Our conclusion is, therefore, that the trial court did not err in its second conclusion of law upon the facts specially found.

Did the court err in its first conclusion of law? We are of opinion that this, question ought to be and must be answered in the affirmative. The whole case against appellant, as stated in appellee's complaint, was founded upon the alleged fraud of appellant, his fraudulent conduct and fraudulent practices, in the discharge of the duties of his trust, as trustee of the fund of which Clinton Davis was the beneficiary. The court found that, as trustee, appellant made regular reports of his trust, which were all approved by the proper court; and that, when he resigned his trust, he made his final settlement report to the approval of the court, that he fully settled with his successor in such trust, and that he was finally discharged by an order of the court from the duties and liabilities of the trust. But the court wholly failed to find that appellant was guilty of any fraud whatever, or any fraudulent conduct or practices, in the discharge of the duties of his trust. Fraud, under our law, is always a question of fact, and, when alleged, it must be proved and found as a fact. Lockwood v. Harding, 79 Ind. 129; Morris v. Stern, 80 Ind. 227.

In a special finding of facts, in a case where alleged fraud is one of the facts in issue, the fact itself must be found by the court, and not the evidence or so-called badges of fraud. Elston v. Castor, 101 Ind. 426; Stix v. Sadler, ante, 905, (decided at present term.) The facts upon which the first conclusion of law was rested were not found to be fraudulent. It was not a fraud per se for appellant to loan to his own son a part of the trust fund, if such loan were well secured; and the court found the value of the land mortgaged to secure such loan to have been more than sufficient to pay the loan when the land was bought in by appellee for the benefit of his trust. Upon this branch of the case we conclude that the facts found by the court do not sustain the allegations of appellee's complaint, and therefore do not authorize or support the first conclusion of law.

The judgment is reversed, with costs, and the cause is remanded, with instructions to set aside the first conclusion of law, and to restate the same by a finding for defendant below, and to render judgment accordingly.

(109 Ind. 600)
WHITTAKER 0. STATE, for Use of DORSETT, Drainage Com'r, etc.

(Supreme Court of Indiana. January 13, 1887.)
DRAINS-SUIT TO COLLECT ASSESSMENTS AND ENFORCE LIEN-COMPLAINT-NOTICE.

Kennedy v. State, ante, 778, followed as to requisites of a complaint to collect a ditch assessment, and enforce the statutory lien therefor. Appeal from circuit court, Morgan county. Jordan & Matthews, for appellant. Grubbs & Parks, for appellee.

HOWK, J. In this case it is conceded by counsel, as well of the appellee as of appellant, that the same questions are presented herein for our decision, and in the same manner, as those which were fully considered and decided by this court, at the present term, in Kennedy v. State, ante, 778. Upon the authority of the case cited, and for the reasons there given, it must be held in this cause that the court below erred in overruling appellant's demurrer to the second paragraph of appellee's complaint herein. The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the demurrer to the second paragraph of the complaint, etc.

(109 Ind. 226)

STATE V. KINDER.

(Supreme Court of Indiana. January 13, 1887.) ASSAULT AND BATTERY--AFFIDAVIT-MOTION TO QUASH.

An affidavit charging that "in the county of Tipton, state of Indiana," at a time specified, the defendant “did then and there, having the present ability to do so, unlawfully attempt to commit a violent injury upon the person of J. F., this affiant, contrary to the form of the statute,” etc., is good on motion to quash. Appeal from circuit court, Tipton county. J. M. Fippen, for the State.

NIBLACK, J. This prosecution was commenced before a justice of the peace upon the following affidavit, which was duly subscribed and sworn to before the justice:

The State of Indiana vs. Joseph Kinder. “John Fennell, being duly sworn, on his oath says that in the county of Tipton, in the state of Indiana, on the sixteentlı day of September, A. D. 1885, one Joseph Kinder did then and there, having the present ability to do so, unlawfully attempt to commit a violent injury upon the person of John Fennell, this affiant, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Indiana.”

Kinder, the defendant below and appellee here, was convicted before the justice, and upon an appeal to the circuit court the affidavit was quashed, and he was discharged. The state appeals.

The section of the statute upon which this prosecution is based, reads as follows: "Whoever, having the present ability to do so, unlawfully attempts to commit a violent injury on the person of another, is guilty of an assault, and upon conviction thereof shall be fined in any sum not exceeding fifty dollars." Rev. St. 1881, § 1910.

We have no brief from the appellee, and hence no argument against the sufficiency of the affidavit. Neither have we any information as to the ground on which the affidavit was held to be insufficient. In the absence of any suggestion to the contrary, we see no objection either to its substantial or technical sufficiency. Moore, Crim. Law, § 562.

The judgment is reversed, with costs, and the cause is remanded, with instructions to overrule the motion to quash the affidavit, and for further proceedings.

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(109 Ind. 270)

COOPER, Adm'r, v. WILLIAMS.

(Supreme Court of Indiana. January 15, 1887.) EXECUTORS AND ADMINISTRATORSNEGLIGENCE-WEIGHT OF EVIDENCE.

An administrator must adopt such precautions against loss, and exercise such forethought for the security, of property which comes into his care, as ordinarily prudent men are accustomed to employ in regard to their own property; and, where there is evidence tending to show a want of such care and prudence on his part, the supreme court will not reverse a judgment against him on the mere weight of the evidence. Appeal from circuit court, Gibson county. Fields & Ewing, for appellant. Lands & Gamble, for appellee.

MITCHELL, J. Cooper, as administrator of the estate of John D. Williams, deceased, submitted his final settlement report to the Gibson circuit court at its September term, 1885. After charging himself with the amount of the inventory of personal property, and taking credit for property taken by the widow, and for various items of disbursement, there appeared to be in his hands the sum of $365.69. In a statement appended to the report, the ad

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