Tolles v. Millspaugh

Opinion by

Chief Justice Gordon:

After a careful examination of the report of the learned master, Mr. Schnur, we have no hesitation in adopting the conclusion at which he arrived, and the decree recommended by him. .He certainly comprehended the intention of the previous decree as proposed by the former master, Mr. Heydrick, and adopted by this court. The disposition of the case, as made by him, Mr. Heydrick, was not final, nor intended so to be; for an account was required to be stated between Millspaugh and Bugbee, and it cannot be supposed that either the master or this court intended that that account should be stated under any other than equitable rules, or in such a manner as to produce an inequitable result.

It seems to us that the matter is solved by the pertinent question put by the master thus: “Is Albert Bugbee entitled to the royalty produced from tract 55, leased by Millspaugh to Beatty, and which was paid to or received by Millspaugh while he held the title to said lot as trustee for Albert Bugbee ?”

To negative this question would be to reverse the former decision, which determined that Millspaugh was Bugbee’s trustee, and which necessarily involved an account by the former to the latter. Surely, if this trustee is to have an account for that which he put upon the property in the shape of improvements, he must, in turn, account for that which he took from it in the shape of royalty. Moreover, nothing can be more plain than, if the land belonged to Bugbee, so also did its products. The question, “Does the master say or intend to say that because Millspaugh defrauded Albert out of his land by a fraud, pure and simple, therefore Millspaugh is entitled to the royalty?” is well put, and we can answer, both for the first master and this court, that nothing of the kind was intended.

The decree of the court below is now reversed at costs of appellee, and it is ordered that the said court proceed to decree in accordance with the recommendation of the master, determining at the same time whether the first or alternative report, as to the amount of royalty due the plaintiff, shall be adopted.

Subsequently, on June 1, 1888, the following decree was entered by the supreme court:

And now, June 1, 1888, this cause came on to be heard, and was argued by counsel, and thereupon it is ordered, adjudged, and decreed as follows, to wit:

1. That the defendant Wesley Millspaugh, within ten days, convey to Albert Bugbee, his heirs and assigns in fee simple, that part of tract number 55 in Mead township, Warren county, not sold but leased to David Beatty, May 4, 1878, according to the survey and map of D. E. A. Wheelock, subject to the rights of said David Beatty under said lease, and subject, also, to the lease from Wesley Millspaugh to the Lake Erie Oil Company for 5 acres of said tract, dated March 15, 1878; and that said Albert Bugbee hold the said lands as aforesaid subject, also, to the mortgage by said Albert A. Bugbee, dated March 31, 1881, to Jacob Shaler, treasurer of the Lake Erie Oil Company, for its benefit, and to the agreement by which the said Jacob Shaler had a lien upon said land, to pay the costs and expenses of the litigation against Wesley Millspaugh which ought to be paid by said Albert A. Bugbee.

2. That Wesley Millspaugh pay to the said Lake Erie Oil Company or its attorneys, to whose use as assignee of Albert A. Bugbee this decree and judgment to be entered thereon are marked, the sum of $7,292.37, with interest thereon from July 27, 1887, the date of the first report of William Schnur, Esq., master.

3. That Wesley Millspaugh pay all the costs of this suit.

Ordered, further, that execution be stayed upon so much of this decree as may be necessary to cover the amount of the two judgments mentioned in the master’s report: Ashbel B. Sellers -i?. Frederick and Albert Bugbee, and M. Beecher use of Wesley Millspaugh v. Albert Bugbee, with interest thereon until such time, subject to the order of the court of common pleas of Warren county, as the said Wesley Millspaugh, his representatives or assigns, may have opportunity, by motion or otherwise, to proceed to have said judgments and interest set off against said decree if said court on hearing shall so adjudge.