Smith's Administrator v. Smith , 78 Vt. 33 ( 1905 )

Munson, J.

Lewis M. Smith, the orator’s decedent, and the defendant were brothers. The defendant conducted the negotiations for the property in question, paid for it out of funds drawn from the bank on assignments received from Lewis, and had himself named''as grantee in the deed. The bill alleges that the defendant was to draw only the sum needed to pay for the place, and that the drawing of the excess and the taking of the deed in defendant’s name were fraudulently done. The defendant claims that Lewis transferred the entire fund to him as a gift, with an understanding that the amount required was to be used for the purchase of this place. The findings of the master sustain the orator’s contention.

The defendant claims that by the introduction of evidence which indicated that Lewis had the deed taken in defendant’s name to avoid liability upon a certain bond, and by the statements of counsel made in connection with it,' the orator has put himself in the position of one seeking relief from his own fraud, and that this entitles the defendant to a decree, on the ground that no< trust could result to Lewis from a transaction of that character. But it seems clear from the defendant’s brief that the testimony referred to as showing this fraud related only to what the defendant said or suggested in regard to his brother’s purpose when he requested that the deed be made out to him. If however, it be true that there was testimony tending toi show that Lewis entertained the purpose claimed, the master has failed to find the fact established, but on the contrary has found that Lewis did not direct that the title be taken in defendant’s name. This leaves no basis for defendant’s argument, and renders it unnecessary to inquire as to the soundness or applicability of his legal propositions.

There was evidence-tending to show that shortly before the deed was executed the defendant .paid Willoughby, the owner of the property, twenty-five dollars to bind the bargain. Mrs. Bassett, a witness for the orator, testified that Lewis requested her to see Willoughby, and that she told defendant what Lewis wanted her to do. She was then asked, subject to defendant’s exception, what she told defendant that Lewis wanted her to do about the Willoughby place. Her first answer was not responsive, but upon the question being explained by the master, she replied as follows: “I told him that his brother Lewis wanted me to go down and bind the. bargain — he said he had twenty-five dollars. Willard Smith says ‘he didn’t have — he only had eight dollars, and I loaned him the rest.’ ” The defendant insists that this evidence of what the witness told him the decedent had said was hearsay, and the indirect introduction of an inadmissible declaration. But the answer shows that the statement complained of was part of a conversation in which the defendant made an admissible declaration, for the accurate presentation and correct understanding of which the preceding remark was necessary. The admission of such a statement in a conversation thus closely connected was not error.

It was not suggested by any of the defendant’s exceptions or motions, and it is not now claimed, that the master’s conclusions, as stated in his report, do not meet the requirement of the law. The defendant excepted to the report as originally filed on the ground that certain evidence was improperly received, and the report was thereupon recommitted to obtain such findings as might be made without considering some of the testimony” covered by the exceptions. Upon this recommitment, the defendant requested the master to state “the facts and evidence” upon which his conclusions were based. The master declined to do this, on the ground that it was not covered by the order of recommitment; and the defendant excepted to the supplemental report, and moved that it be set aside, because of this refusal, and also on the ground that the findings were “against the evidence.” But the master stated in his supplemental report that he had filed with the clerk the transcript of the reporter’s minutes containing all the oral evidence on which the report was based, and all the exhibits in the case. The defendant treats this as a reference making the transcript a part of the report, and presents an elaborate review of the testimony in support of his claim that the findings are “against the evidence.” It is not necessary to consider the exact force of this expression, or the effect of the master’s statement regarding the transcript, or whether the master could properly have taken further action on the defendant’s request. It appears from the matters stated in the report that there was evidence before the master which tended strongly to support his conclusions; and this being so, the result must depend upon the master’s estimate of the evidence as a whole, and any review of it by the Court would be useless.

The bill charges the defendant with receiving the rents of the property in question, and prays that an account thereof be taken, and that the orator be decreed to pay over the sum found in his hands. The master reports that defendant collected and held the sum; of $73.50; that he paid for necessary repairs while this amount was accruing the sum of six dollars, and that all subsequent rents were collected by the orator. The court entered a decree “according to the prayer of the bill.” The defendant contends that a 'decree according to the prayer takes no account of the expenditures and is therefore erroneous. We construe the prayer to ask for the net income of the property, and upon this construction the decree will cover no1 more than the orator is unquestionably entitled to. The master’s submission to the court of the effect that should be given ff> defendant’s letter refusing to pay over further rents, presented no question that was not sufficiently disposed of by the decree as made.

Decree affirmed and came remanded.