Pearkes v. Freer.

PEARKES v. FREER, SHERIFF.

It is not necessary, in an action against a sheriff, to recover damages, (in addition to the $200 imposed by law as a penalty,) for a failure to execute and return process, that two suits should be brought. Damages and the penalty may be recovered in one suit. The right to have a cause tried in a particular county, is one which a party may waive, either expressly, or by implication.

An objection to the venue, if made on grounds appearing in the complaint, must be made at or before the time of filing the demurrer, or it will be deemed waived.

APPEAL from the District Court of the Tenth Judicial District, County of Yuba.

The facts appear in the opinion of the Court.

Wm. H. Rhodes for Appellant.

R. S. Mesick for Respondent.

TERRY, C. J., delivered the opinion of the Court-FIELD, J., and BURNETT, J., concurring.

This was an action against a sheriff to recover the damages sustained by reason of his failure to execute and return process, with the addition of $200 imposed by law as a penalty for such neglect.

A demurrer was interposed to the complaint, on the ground that two distinct causes of action had been improperly joined. This demurrer was overruled, and the defendant failing to appear at the time fixed for the trial, a trial was had, ex parte, before a jury, who returned a verdict in favor of plaintiff, and from the judgment entered on this verdict, the defendant appeals.

The errors assigned are: first, overruling the demurrer; second, refusing to change the venue on application of defendant.

The action was instituted under the sixth section of the act concerning sheriffs, (Wood's Dig., 680,) which provides that a sheriff, for a failure to perform certain duties, "shall be liable in an action to the party aggrieved for the sum of two hundred dollars, and for all damages sustained by him."

It is not the policy of the law to promote multiplicity of actions, and by no rule of construction, of which we have any knowledge, can we arrive at the conclusion that the Legislature intended that two suits were necessary to enable a party to avail himself of the remedy given by this statute.

There was no error in refusing to change the place of trial; the right to have a cause tried in a particular county is one which a party may waive either expressly or by implication.

The demurrer to the complaint was filed on the eighth of July,

Gunter v. Janes.

1857, and the agreed statement shows, that by agreement of counsel, the cause was set for September 17th; on that day, defendant moved for a change of venue, on grounds which were apparent on the face of the complaint.

In Reyes v. Sandford, (5 Cal., 117;) and in Tooms v. Randall, (3 Cal., 438,) it was held, that an objection to the venue must be made in the answer, and comes too late after an answer to the merits; it follows, that such a motion on grounds disclosed by the complaint must be made before or at the time of filing demurrer. By filing a demurrer, and consenting to set the case for trial at a particular day, the defendant waived his right to move for a change of venue.

The judgment of the Court below is affirmed, with fifteen per cent. damages for a frivolous appeal.

GUNTER, EXECUTRIX, v. JANES, GUARDIAN.

A was indebted upon a note and mortgage to B, in the sum of $40,000. B assigned the note and mortgage to C, and received from him his notes in lieu thereof. Afterwards

A mortgaged to C, together with other property, the property previously mortgaged to B, subject to first mortgage, for which C was to advance to A, from time to time, sums of money not to exceed $12,000, to enable A to pay his debts. By this mortgage C was authorized to receive the rents of the mortgaged premises, and apply them to the payment of the $12,000 and interest, and in case the rents should not be sufficient for that purpose, and A should not pay within two months after request, then C was to sell, and, out of proceeds, pay the amount and interest so advanced. C, at various times, advanced to A nearly $12,000, and collected rents to the amount of $28,000. Subsequently C died, and then his executor collected the rents: Held, in an action by A against C's administrator, that C acted in the purchase of the note and mortgage of B as an agent of A, and that A was entitled to the trust fund.

If the plaintiff allege an express trust, it is incumbent upon him to prove it as alleged, but such a trust may be proved by circumstances, and to ascertain the intention of the parties, the Court will consider the then existing circumstances.

A mortgagee, who is also a trustee, is as strictly bound to execute his trust faithfully as he would be were he not a creditor, but acting for the benefit of another cestui que

trust.

A party seeking to enforce a trust against the administrator of a trustee is compelled, from the complex nature of the cause, to ask relief in a Court of Equity. The claimant of specific property is not a creditor within the meaning of the Probate Law, and therefore he is not bound to present his claim to the administrator.

Per Burnett, J., on re-hearing.-A trustee can not, by mingling trust moneys with other funds, change his character from that of trustee to that of mere debtor.

The act of either the trustee or cestui que trust, without the consent of the other, should not be permitted to change the relation or capacity of the parties.

If the trustee does a wrongful act, then he by the act consents to be treated as a trespasser or debtor, at the option of the cestui que trust.

A trustee should never be permitted to defeat the rights of the cestui que trust, so long as it is in the power of a Court of Equity to enforce them.

APPEAL from the Superior Court of the City of San Francisco.

Gunter v. Janes.

This was a bill in equity to recover trust funds in the hands of

the administrator of a trustee.

The action was originally brought in the name of Henry Gunter, against William Barber, administrator, with the will annexed of J. J. Starkey, deceased. Subsequent to the rendering the interlocutory decree Gunter died, and the action was revived in the name of the above-named Elizabeth A. Gunter, his widow and executrix. Barber closed his accounts as administrator, and paid over the money in his hands to Janes, the guardian of the daughter of J. J. Starkey and legatee under the will, and Janes, by stipulation, was substituted as defendant in the place of Barber.

On the seventh of March, 1850, Henry Gunter, deceased, was indebted upon note and mortgage to Thomas G. Wells, as agent for James Collier, for money lent, to an amount of from forty to sixty thousand dollars. On that day, Wells assigned the note and mortgage to John J. Starkey, and received from him his notes in substitution. Afterwards, these notes were taken up and others executed in their place by Starkey, to A. H. Dohrman, by the consent and direction of Collier. The notes to Dohrman were four in number, and amounted in the aggregate to $41,856, all bearing date March 7, 1850, and all payable April 7, 1851, and all drawing interest from date, at the rate of eight per centum per month. On the 9th of March, 1850, a sealed instrument was executed by Gunter and Starkey, wherein it was recited that:

"Whereas, the said Henry Gunter, being indebted to divers persons in divers sums of money, and being at present unable to pay and satisfy the same, hath appealed to and requested the said J. J. Starkey to advance, and he hath agreed accordingly to advance such sum or sums for the liquidation or settlement of the said debts as may be required from time to time, not exceeding the sum of twelve thousand dollars on the security hereinafter mentioned."

By the provisions of the instrument, Gunter mortgaged to Starkey certain premises, "subject to the mortgage incumbrances then affecting the same." The property mortgaged by Gunter to Starkey included, with other property, the premises previously mortgaged by Gunter to Wells. For the purpose of securing to Starkey the repayment of such sums as he should advance, together with interest thereon at the rate of eight per cent. per month, Starkey was empowered to receive the rents and profits of the property, and apply the same to the liquidation of the advances so to be made by him; and in case these rents and profits should not be sufficient for that purpose, and Gunter should not pay the same within two months after request, then Starkey was empowered to sell any part of the property subject to the said incumbrances, and out of the proceeds

Gunter v. Janes.

to reimburse himself for his advances. Starkey, at various times after the date of the instrument, advanced for Gunter nearly $12,000, and collected rents to an amount exceeding $28,000. On the 22d day of January, 1852, Starkey departed this life, and his executor afterwards collected various sums as rents from the mortgaged property. The Dohrman notes were destroyed by the fire of May 4, 1851, and the holder neglected to present them to the executor within the time limited by the statute, and they became barrred. They were afterwards assigned to Gunter, upon condition that one-half the amount he might recover in this suit should go to Dohrman; and Dohrman and Collier executed to the estate of Starkey a release, which was to be filed by Gunter as a paper in this suit. The bill in this case was filed by Gunter, alleging that Starkey, in purchasing the note and mortgage of Gunter to Wells, acted as his agent and for his benefit, and claims the trust funds in the hands of the administrator, the executor having resigned before this suit was commenced.

The plaintiff had a decree in the Court below, and the defendant appealed.

Eugene Casserly and Delos Lake for Appellants.

Trust alleged, an express trust: As to its legal character in the classification of trusts, it is an express trust; and it was so admitted and claimed to be on the argument at bar by at least one of respondent's counsel.

Trusts, like other contracts, are divided into, first, express; and second, implied.

An express trust may be proved either by positive and direct testimony, such as a declaration in terms, either written or verbal, or by such facts and circumstances as raise a necessary and violent presumption of such a declaration.

The express trust alleged, is, that Starkey in buying the Gunter notes and mortgage from Wells, agreed expressly to buy and hold them for Gunter's benefit; and that he received the rents and profits of Gunter's property also under an express agreement to hold them merely as indemnity against any sums he might be compelled to pay on his notes given to Wells on buying the Gunter mortgage.

Is there any adequate proof, either direct or presumptive, of such an express trust?

That there is any direct proof is not pretended. But it is said that the presumptive proof is sufficient. Let us see if this be so.

In the first place it is to be remarked there is no presumption in favor of such a trust. The onus probandi is strictly on him who alleges it.

The rule was laid down long ago in Cook v. Fountain, reported at length in 3 Swanst., 590-1.

Gunter v. Janes.

This has been the doctrine ever since, both in England and America. Gratz v. Prevost, 6 Wheat., 481; Boyd v. McLean, 1 Johns., 590; Whelan v. Whelan, 3 Cow., 580.

Next-there are three requisites of a valid trust, the want of any one of which will cause it to fail:

1. The intention to impose a trust on the donee must be certain.

2. The terms of the trust must be certainly ascertained, viz. : as to the property on which the trust is to attach, the parties for whom the benefit is meant, the interests they are respectively to take, and the manner in which the trust is to be performed. 3. It must be accepted on those terms by the trustee. Adams' Equity, 27, 28-9, and note 1; Steere v. Steere, 5 Johns., 12. The plaintiff having alleged in his bill an express trust, it was not competent for him to fall back on an implied trust, to make out his case. He could not set up one kind of a trust in his pleadings, and another kind in his testimony. James v. M'Kernon, 6 Johns., 542, per Kent, C. J., 563-4, and Spencer, 561; Forsyth v. Clark, 3 Wend., 653-4.

The rule is perfectly established that as between the mortgagor and the assignee, the latter has a right to receive the whole debt, no matter what he paid, and though he paid nothing. Anon., 1 Salk., 155; Phillips v. Vaughan, 1 Vern., 335; Morret v. Paske, 2 Atk., 53.

Starkey, on the ninth of March, 1850, was a mortgagee of two mortgages made by Gunter, with a certain qualified trust annexed to the latter.

Under the latter, so far as he was a mortgagee, it is quite clear that no trust relation existed between him and Gunter, in the wide sense in which it is contended for the plaintiff, and which is indispensable to sustain the bill; namely, so as to deprive him of the right to make a profit for himself out of the transaction, by enforcing the first mortgage without reference to the sum paid by him.

This vital distinction between a mortgagee and a trustee, in its special sense, has, at least for many years, been recognized in the English Courts. It must be still more marked in this State, in view of the doctrine constantly maintained in this Court, that the mortgage is merely an incident to the debt. In England, the great case in point is Cholmondeley v. Clinton, referred to as high authority, 10 Wheat., 174,; 2 Jac. and W., 177, 182-5, by Sir Thomas Plumer, M. R., upon a re-argument reversing Sir W. Grant's decision, and 190-1, by Lords Eldon and Redesdale, on appeal in the House of Lords, affirming Sir T. Plumer's decision. All the leaders of the chancery bar-Romilly, Sugden, Leach, Shadwell, besides Mr. Charles Butler, of the law barwere employed. One or two points of difference between a mortgagee and a (general) trustee, are conclusive. In the first