Citation Numbers: 9 Cal. 643
Judges: Burnett, Terry
Filed Date: 7/1/1858
Status: Precedential
Modified Date: 1/12/2023
The main conceded facts of this case constitute an authentic chapter in the business history of the early days of California. Kothing could more clearly show the excessive confidence and the delusive anticipations of that period.
The first and main question in the case is one of fact—of intention. Was Starkey, in the purchase of the note and mortgage of Gunter to Wells, the mere agent or trustee of Gunter ? or did he act for himself and for his own interest ? This is the question upon which the decision must rest.
To ascertain the intention of the parties we must consider the then existing circumstances. In other words, we must judge the past by the circumstances existing in the past.
At the time the transaction had its beginning the parties did not anticipate any of the changes in the state of business which afterwards took place. They anticipated no decline in the price of property, or in the rate of rents. The income and value of the property was not expected to become less. All the features
As the plaintiff alleged an express trust, it was incumbent upon him to prove it, as alleged. From the nature of the case, it could only be an express trust. But conceding this to be true, this express trust may be proved by circumstances. And the plaintiff’s counsel insist that the facts proved, taken together, do establish this express trust.
There is nothing in the language of the instrument under date of March 9,1850, that goes either to establish or rebut the allegation that Starkey was the trustee of Gunter, in the arrangement with Wells. The terms of the instrument are expressly confined to the advances thereafter to be made by Starkey. Hot a word is said about any other transaction. The language of the instrument is very clear, showing that it was drawn by a competent professional man. We must, then, look to other proofs to sustain the alleged trust.
It is insisted by the learned counsel for the defendant, that the alleged trust is “so unprecedented in its character as, of itself, to excite suspicion and demand scrutiny.”
Viewing the transaction by the light of subsequent experience, and it must be conceded as extraordinary, in the contemplation of either theory. That Starkey incurred a liability of some $97,000, which he bound himself to meet in thirteen months, is certain. Regarding the transaction of Starkey with Wells as intended for a speculation, on the part of Starkey, it is difficult to see any adequate motive for it.
The interest that Gunter was paying upon the purchased note and mortgage was ample; and, regarding the security as sufficient, there was still no adequate inducement for Starkey to make the arrangement for Ms own benefit; for the reason, that
The risk of loss was the same to Starkey, whether he acted in one character or in the other. His liabilities were the same, and his means of indemnity the same in both. From the nature of the arrangement, there could be little or no prospect of gain to him. At the time the arrangement was made, Starkey must have supposed that the rents of the property and its value would not decline j that the incoming rents, though not equal to the principal and accruing interest upon his notes to Wells, would at least pay all the interest and a large portion of the principal within the thirteen months, and that the property would be amply sufficient to pay the remainder of the principal, should Wells insist upon prompt payment. Starkey held the assigned note and mortgage, and could at any time enforce payment when compelled to pay himself. It is most probable that he anticipated making a further loan, if required. Upon the hypothesis that the rents would exceed the interest, and pay a part of the principal, leaving thereafter less interest to pay, while the rents remained as before, Gunter, no doubt, based his hopes of ultimate relief. It was this view of the matter that led to the arrangement between Starkey and Gunter.
This view is supported by all the acts of Starkey. From a
But there is one circumstance that seems to be inexplicable upon any other theory than the one which supposes Starkey to have acted for Gunter in making the arrangement with Wells. In the account rendered September 23, 1851, Starkey charges Gunter with this item : “ 1850, April 7. To p. n. given to T. J. Wells, amount of mortgage, 141,856.”
It seems clear, from all the testimony, that the note and mortgage of Gunter to Wells, amounted, including principal and interest, at the time of the assignment to Starkey, to the sum of 841,856. For this sum Starkey gave his notes, and charges Gunter, not with the principal of Gunter’s note and mortgage, but with the amount of Starkey’s notes to Wells. In this account a balance is struck, “ exclusive of interest,’’ showing that Starkey only intended to charge Gunter with the principal, not including the interest. If, then, Starkey had purchased the note and mortgage upon his own account, he should have charged Gunter with the amount of his note to Wells, “exclusive of interest.” But upon the theory that Gunter was only to pay him what he was to pay, the account, as rendered, was correct.
Besides these circumstances, it is stated by Wells, that the transfer of Gunter’s note and mortgage Avas made at the instance and request of Gunter. In the language of the witness, 11 the plaintiff made the whole transaction with my assent,” “ the said assignments were made by direction of Mr. Gunter.”
There are circumstances referred to by the learned counsel for the defendant, tending to rebut the evidence for the plaintiff. But we think they are not sufficiently strong to overcome the proofs on the part of Gunter. The fact that Starkey continued to act as trustee long after the advances made by him to Gunter had been fully paid, is certainly very difficult to account for, except upon the theory of the plaintiff.
It is true that the conditions of the trust should have been reduced to writing, and we might naturally expect to find them in the article of March 9,1850. But this omission can be accounted for upon the ground of the great confidence Gunter reposed in Starkey. So far as Starkey Avas concerned, it made but little, if any, practical difference to him whether the conditions of the trust were reduced to writing, or not. He had
It is urged by the counsel of defendant, that there is a vital distinction between a mortgagee and a trustee. But, conceding that there is some difference between a trustee who is no creditor, and a trustee who is, we can not perceive how it can affect the merits of this case. An ordinary trustee is a person who sustains but one character, and has no lien upon the trust funds, except for his compensation; while a mortgagee, let into the possession of the mortgaged property, is both a creditor and a trustee. So far, however, as regards his capacity of trustee, he is just as strictly bound as an ordinary trustee. Starkey was compelled to act with strict fidelity, and could not be allowed to manage the property exclusively for his own benefit, and to the injury of Gunter. The mortgagee, who is also a trustee, is as strictly bound to fulfill his trust faithfully, as he would be were he not a creditor, but acting for the benefit of another cestui que trust.
Another point urged by the counsel of the defendant is, that Gunter did not present his account to the administrator for approval or rejection, as the Probate Act requires. But to this, it is a sufficient answer that the scope and purpose of the bill of Gunter was not the recovery of a debt against the estate, but to enforce his right to trust funds that had found their way into the hands of the administrator. He was compelled, from the complex nature of the case, and the kind of relief sought, to go into a Court of Equity. The trust funds properly constituted no part of the assets of the estate. Where the executor or administrator has property which belongs to another, the owner is not required to present his account, as if he were a creditor. The claimant of specific property, and not of a debt, can not properly be called a creditor, within the meaning of the Probate Law. The facts of this case are substantially the same as those of the People v. Houghtailing, (7 Cal. R., 348.)
There are several other points, made by the counsel for the defendant, that we do not consider of material importance. Upon the whole, we think substantial justice was done by the decision of the Chancellor. The referee seems to have given the case a very patient investigation, and his report appears to be substantially correct.
The judgment of the Court below is affirmed.