Bonesteel v. Bonesteel , 30 Wis. 516 ( 1872 )

Cole, J.

These are cross appeals from different parts of the same judgment.

In respect to the finding and judgment of the court below against the counter-claim, set up in the defendant’s answer, we think the evidence was insufficient to charge the plaintiff as trustee of those funds. It does not appear tbat sbe bad any knowledge of the trust, or accepted it. Tbe facts, mainly relied' on to show tbat sbe knew of the trust and accepted it, are these: Tbe trust property was conveyed to her by Judge Grorsline, without any consideration being paid by her therefor. Sbe united with her husband in conveying this same property to McLaughlin. A large portion of the proceeds of the sale of the gold claims was subsequently placed to her credit, on the bank books of Mr. Baker, which she drew out on her own checks.

The conyeyanee by Gorsline was made in the absence of the plaintiff, and without her knowledge, at the instigation of the defendant and the plaintiff’s husband. She states, in her answer, that the deed was never delivered to her, and testifies in her deposition that there never was any property or gold claims conveyed to her by Grorsline, in trust for the defendant and Conklin; that she never accepted any such trust; never sold any such claims; nor received any money for them. There is, really, no evidence to contradict her upon these points. Suppose she had seen the conveyance from Grorsline to her. It is not claimed that this conveyance expressed that the property was conveyed in trust for any one. She states that after the commencement of this suit, she was informed that her husband took a conveyance of these gold claims in her name, and she doubtless supposed that they were his property. When she executed the deed to McLaughlin with her husband, she was of the same impression. She was entirely ignorant of the fact that the defendant had any interest whatever in the gold claims — if such was really the case — and the parties conducting the business seem to have carefully concealed from her, as well as others, the real nature of these transactions. Whether this concealment was resorted to for a fraudulent purpose, to place these claims beyond the reach of creditors, we need not inquire. But certain it is, that the plaintiff did not know, and had no means of finding out, that these claims had been conveyed to her'in trust, and therefore the fact that she united with her husband, in conveying them to McLaughlin, is not such an act as ought, under the circumstances, to charge her with the trust. For she doubtless supposed that the claims belonged to her husband, and that the money which was received from the sale of this property was likewise his. In this case, if there was any evidence from which it could be assumed that tbe plaintiff knew that the property was conveyed to her by Gorsline, in trust; or, that the proceeds of the sale belonged to the defendant, there would be some ground for holding her liable in this action as trustee. But there is no such evidence, and nothing whatever to inform her, that these moneys belonged to the defendant. We, therefore, fully agree with the court below, in the conclusion that she never received these moneys mentioned in the counter-claim in trust, and is not liable to account therefor.

And we likewise agree with the court below upon the other branch of the case, namely, that the evidence shows that the note sued on was without consideration, and that nothing is due the plaintiff thereon. When the defendant received the thousand dollars from A. D. Bonesteel, in September, 1865, he supposed he was obtaining a portion of his own money, in her hands, belonging to him. He seems to have had some interest in the gold claims which were sold. If the proceeds of these claims were in the hands of the plaintiff, they were entirely under the control of her husband. The defendant applied to him for a portion of his money, and, as he had every reason to believe, procured it. He had no negotiations with the plaintiff upon the subject, and did not know that she claimed this money as a part of her separate estate. The defendant dealt entirely with his brother, who, he says, looked upon the transaction in the same light that he himself did, that this thousand dollars was an advance from the proceeds of the gold claims. He made no loan of the plaintiff, but treated .with her husband as the real responsible party. If A. D. Bonesteel really advanced this thousand dollars to the defendant as a portion of the funds under his control belonging to the latter, it is very obvious that the subsequent giving of the note for the amount to plaintiff, did not change the nature of the transaction. The note was without consideration.

It follows from these views, that those portions of the judgment of tbe circuit court aboye respectively appealed from, must be affirmed.

By the Court.— So ordered.