Clemens v. Kaiser

Mr. Justice Scott

delivered the opinion of the court:

As we view this record, the only questions arising thereon are questions of fact, and we are not disposed to interfere with the decree.

The evidence covers 132 pages of the printed abstract. It is therefore impossible to discuss it in detail in this opinion. We have examined it carefully. The testimony of each of the original parties to the suit, Margaret Lang and John Kaiser, abounds with many inconsistencies and contradictions. Each testifies to certain material statements which, in the nature of things, must have been untrue, and must have been known to the party testifying to be untrue. Had the evidence been submitted to a jury, that body would have been warranted in disregarding the evidence of each except in so far as it was corroborated by credible evidence.

The prayer for an accounting is based upon the charge that Kaiser held the title to 201 Vine street for Margaret Lang, having obtained the conveyance thereof from her by fraud and misrepresentation, and that the money he received from the sale thereof and the rents collected therefrom by him, were her property, and that the proceeds of the sale of the horses and wagons were her property, and that this, together with her savings and wages and the wages earned by her daughter, was entrusted to him by her because of her confidence in him, and that thereby a fiduciary relation was created between them.

So far as the property at 201 Vine street is concerned, Margaret Lang and her husband executed a deed conveying the same to Kaiser, the expressed consideration being $1500, and the parties stipulate that that was the fair market value of the property at that time. The deed was signed and acknowledged before a notary public in Kaiser’s meat market. As to that real estate and the horses and wagons, Margaret Lang’s testimony is not only denied by the defendant, but is contradicted by written instruments executed by her at the time of the transactions. Her statements in reference to the existence of any fiduciary relationship regarding her wages and savings is flatly opposed to his, and she is not corroborated to a greater extent than he.

Kaiser obtained first a tax title, conveyed to him by Henry Glos, for the premises at 234 Vine street, and that title he unquestionably held as trustee for Marie Elanz, and the money which he paid to secure it was included in the statement of the sums due him when Mrs. Elanz made to him the conveyance of December 11, 1900. We think it apparent that Kaiser’s statement to the effect that he paid Marie Elanz $1000 at the time of the conveyance of June 2, 1893, which was not in proper form, is untrue. When he negotiated for the deed of December 11, 1900, he made no such claim. If he had made that payment, he would certainly have sought reimbursement then. The finding of the master to the effect that the last conveyance of that property to him by Marie Elanz amounts to a mortgage is not consistent either with the testimony of Margaret Lang or John Kaiser, but is in accord with the testimony of the notary who drew the first conveyance from Marie Elanz, with that of the attorney who drew the second conveyance from her and negotiated an adjustment of the account between Kaiser and Marie Elanz, with that of two friends and neighbors of that lady, and with that of the notary public who took her acknowledgment to the last conveyance. This notary, the attorney, and the two neighbors were present when the settlement was reached. Their evidence seems straightforward and credible. No reason for disbelieving either of them appears. The court below acted wisely in adopting the view which is warranted by their testimony and in disregarding entirely the testimony of the parties respecting the transaction now under consideration.

We cannot say that the finding of the master on any of the various questions of fact before him, which have been approved by the court below, is against the weight of the evidence.

Thp bill avers that Kaiser holds this property in trust for Margaret Lang. The answer states that he" is the owner of the fee simple title. The decree finds that he holds the title to that property to secure the said sum of $2015.38 with interest at five per cent per annum from December 11, 1900, the date of the deed taken by McMahon, the attorney who acted for Kaiser at that time, and it is urged that there are no allegations in the bill upon which a decree to that effect' can be based, and that the decree, therefore, is erroneous. This error is one of which appellants cannot complain. The decree finds in substance that Kaiser does not hold the property in trust. The further finding that the conveyance to him amounts to a mortgage, even if error, does appellants no harm.

Kaiser testified that a certain $50 which was paid to him by Mrs. Lang was given to him to be paid one John Potast to compensate him for signing a bail bond for a woman by the name of Maggie Backus. Potast testified that he signed the bond at Mrs. Lang’s request, and that Kaiser paid him the $50. Counsel for appellants, in cross-examining Potast, inquired if he did not subscribe and swear to a statement, when qualifying as bondsman, that he signed the bond at the request of the defendant, Maggie Backus. An objection to this interrogatory was sustained, and this has been assigned as error, on the ground that it was asked as a basis for impeachment. We think the assignment without merit. That the witness was requested to sign by Maggie Backus would not be inconsistent with his statement that he was requested to sign by Mrs. Lang. He may have been requested to sign by both.

The decree directs costs that accrued prior to the death of Margaret Lang, the original complainant, “be paid by the estate of the said original complainant, and that all costs herein since said date be paid by the” substituted complainants, “and that the defendant, upon taxation thereof by the clerk of this court, have execution therefor.” This is erro-. neous in so far as it awards execution against the estate of the deceased and against her executrix who is one of the substituted complainants.

The decree will be so modified as that execution shall issue only against Katie Clemens, individually, and against Mamie Feid, for such costs as were adjudged against them by the decree of the circuit court. In all other respects the decree of the circuit court will be affirmed. Each party will be adjudged to pay one-half the costs of this court and execution may issue for same, except as to the executrix, who will pay in due course of administration.

Decree modified and affirmed.