Ramsdell v. Emery ( 1858 )

The opinion of the Court was delivered by

Goodenow, J.

The bill seeks a. decree to compel the defendants to make a conveyance of one third part of township No. 8, to the plaintiff; and further, to compel them to pay such sums of money as may be due for stumpage, &c.

In Fisher v. Shaw & als. in equity, 42 Maine, 32, it was held that no relief could be decreed by ordering a conveyance of real estate, where there was no written obligation between the parties. This. is not, in our opinion, a case of resulting trust. The last payment made to Shaw, the obligee, was made by the defendants. It was their own money. The deed from Shaw to them was absolute. They were willing to sell to the plaintiff at cost, and that he should have a right of preemption; and, for this purpose, they kept an account of the profits and loss, arising from their interest in this township. In all cases of implied trust, the right is perfect when the money of the cestui que trust has been paid. The land is substituted for the money.

But it appears that various settlements have been made between the parties. That their business transactions had been of long standing, and were various and complicated. That, as late as October 23, 1850, and November 1 & 2, 1852, there was a final settlement, and there was found due from the plaintiff to the defendants the sum of $32,521,92, for which, as the plaintiff alleges, they held townships No. 7 & 8, and personal property, as collateral security.

By the terms of that settlement, according to the proof, we are led to the conclusion, that it must have been the fair understanding of the parties at that time, that the title of -J-of township No. 8 was to remain, undisturbed, in the defendants, where it then was, absolutely.

From the proof in the case, the whole property received by the defendants as collateral security, for advances made by them to the plaintiff, including & of township No. 8, was found insufficient to save them harmless by more than $12,000. It appears to have been a losing concern all round. The plaintiff lost his time and they, lost their money.

The hill must he dismissed, with costs for defendants.

Tenney, C. J., and Rice, Hathaway, Appleton, and Cutting, J. J., concurred.