Peterson v. Willbanks

Beck, P. J. (After stating the foregoing facts.) We are of the opinion that the court did not err in sustaining the motion for a nonsuit in this case. The evidence in the case would not have authorized a judgment in favor of the plaintiffs, under the allegations of the petition considered and the prayers for the relief sought. This was not a petition for an equitable accounting; in no view of the case was C. H. Peterson entitled to have the property impressed with a trust in his favor. Under the provisions of that item of the will which plaintiffs relied upon in the case as affording them a right to recover, the executors were expressly authorized to sell the land at private or public sale. The executors were directed to sell the land at public or private sale and divide the proceeds between the two named devisees, one of whom is suing here individually and the other by his guardian. Conceding that under such a provision the devisees could have elected to take the [386] land instead of having it sold, nevertheless the sale was not unauthorized and not illegal where no election was made before the sale took place in accordance with the authority given in the will. Not even in the pleadings do the plaintiffs claim that the sale to Way was void for fraud, or that there was fraud and collusion upon the part of A. A. Peterson, the executor, and N. T. Way, the purchaser of the land. Nor is it claimed that that sale was void for fraud. Besides, C. H. Peterson joined in the execution of the deed to Way. lie claims, and by his evidence supports the claim, that he did not receive anything from the proceeds of the sale. He received a mortgage and one of the notes for $3000, there being two notes for this amount. It is claimed that A. A. Peterson, the executor, paid off the execution based upon a judgment rendered on this note and had the fi. fa. marked paid in full and canceled the mortgage. If he did this and was unauthorized to cancel the fi. fa., and did not pay to C. EL Peterson the amount due him on the fi. fa., he was liable, and oir accounting could have been held liable for the amount due on the fi. fa. or on the note and mortgage. As to the other note and mortgage, the one payable to Mrs. Peterson as guardian, that was transferred to A. A. Peterson. There is testimony to show that A. A. Peterson wrote the transfer himself and that the signature of Mrs. Carrie Peterson, guardian, to this transfer and assignment of the note was in the handwriting of Peterson himself. Mrs. Peterson, testifying by interrogatories, swore that she knew nothing of the sale of the land to. Way; but there is no testimony to show that A. A. Peterson did not pay to her the amount of the fi. fa. based upon the note and mortgage. A. A. Peterson died before this trial took place; but Mrs. Carrie Peterson was in life and testified by interrogatories, and this is her testimony: “I am familiar with and know the land in dispute, commonly called the McCrimmon place. I did not know that the tract of land referred to was sold to N. T. Way. N. T. Way never did deliver to me .any note for the purchase of that tract of land. I knew nothing about the sale to N. T. Way, and never received any note from N. T. Way for the sale of the land. As to whether I am acquainted with N. T. Way, I never did see him. I did not know that such a note was sued to judgment, or that judgment was obtained on it in court against N. T. Way. My [387] son, Hugh Alexander Peterson, was nine years old at the date of the death of my husband, John A. Peterson. I cannot recall the date my husband died. I remember it, but I have forgot exactly what year it was, — it was April the 16th, but I forget the year. After he died, I don’t remember whether I was appointed guardian for Hugh Alexander Peterson or not. I do not remember whether I had been acting as guardian or not.” No proof is brought to show that the money was not paid to Mrs. Peterson, guardian. It is insisted that the burden of proof to show that A. A. Peterson, the executor, did pay the money to Mrs. Carrie Peterson rested on the former. If this were a petition for an accounting and it had been shown that trust funds went into the hands of the executor, then the burden would be upon him, in order to relieve himself of liability, to show that he had paid the money to the legatee or his guardian. But this is not a suit for an accounting; it is an equitable proceeding to trace trust funds into a particular piece of land, and the burden of showing that the trust funds went into that land is upon the parties asserting it; and that burden they failed to carry. Moreover, this suit was brought after the lapse of more than six years from the time the sale of the property was made. The title had passed through the hands of successive transferees to Mrs. Willbanks, formerly Mrs. A. A. Peterson. The latter had made valuable improvements in the form of houses and fences on the place; and while she was making these improvements, there is evidence to show that C. H. Peterson, one of these plaintiffs, knew of this. Besides, there is another difficulty in the way of impressing a trust character upon the land.in question, even if under the facts proved Mrs. Willbanks held title under a purely voluntary deed: When Way conveyed to A. A. Peterson, the former executor, he had title to the property under a sale authorized by the will of John Peterson Sr.; and the consideration for the deed from Way to A. A. Peterson was not merely the cancellation of the fi. fas., but $500 additional. If A. A. Peterson actually used the money belonging to Hugh A. Peterson, the minor, and C. H. Peterson, the other devisee of the land, and did not account to them for it, then he was liable for the money, and the recovery could have been had against him upon a suit brought before the demand was barred. It is not alleged that his estate was insolvent. There was nothing to prevent a recovery [388] of the money upon a suit brought in time. But we do not think that under the evidence in this case a decree was authorized declaring the title to the land itself to be in Hugh Peterson or C. H. Peterson. Judgment affirmed. All the Justices concur, except Bussell, C. J., dissenting.