Rutherford v. Talent

Wade, 0. J. In this action it appears that the plaintiff and respondent was the owner, in her own right, of a certain placer-mining claim, and that she had given the defendant and appellant authority to rent the same for her, and account for the proceeds. He accounted for a portion of the money received as rents, and failing to account for the balance, the respondent brought this action to recover the same. As a defense and counter-claim, the appellant set up an account for money expended by him for Adam Rutherford, the husband of the respondent, in representing certain quartz-mining claims, which had been conveyed by Rutherford to appellant for the purposes of sale, as alleged. Soon after such conveyance, and before any money had been expended by appellant on said claims, Rutherford died, and after the expenditure of the money, as stated in his account,the respondent was appointed administratrix of her husband’s estate. This statement of the facts conclusively shows that appellant had no defense to respondent’s claim for rents. The appellant held the title to the quartz claims in trust for Rutherford in his life-time, and after his death in trust for his estate. The estate had not been administered. Claims against it ought to have been presented to the administratrix for allowance. If appellant had expended money in. representing quartz claims for Rutherford, or for his estate, it became a charge against him or his estate, and should have been presented to the administratrix for allowance. It was sought to create a trust in favor of respondent in. this quartz-mining property, in order to make the money [134] expended thereon a charge against her, by certain letters that passed between appellant and respondent concerning the same, after the death of Rutherford, and before the estate had been administered. How a trust could arise in respondent’s favor by any act of appellant concerning property that he did not own or have any interest in, and which at the time belonged to an unsettled estate, is more than we can understand. But the letters in question were received in evidence without objection, and, as stated in the record, “ were admitted by the court solely and for no other purpose than to show that plaintiff was estopped from denying that defendant had paid out the rent of the placer mine in representing the quartz lodes mentioned in his said account with her consent and approval.” There was no objection or exception, for the reason that the letters were not admitted and received in evidence for the purpose of establishing the alleged trust. No objection having been made at the trial on this account, we have no means of determining whether the court erred in limiting and restricting the evidence contained in the letters to the single point named. A question of this kind cannot be raised in this court for the first time. In most cases we review the decisions of the lower court, and it does not appear that the letters were offered in evidence for any other purpose than the one mentioned. If competent evidence is rejected, the question of its admissibility should be presented to the appellate, court by an exception taken at the time and properly saved. '•‘Appellate courts pass upon objections that are raised, and properly saved, in the court below. The point of the objection and exception must be particularly and specifically stated, and this to enable the trial court to correct its own errors, and to enable the party to remove the objection, if possible. Bor this reason, the rule is general that the appellate court reviews only what the lower court has passed upon.” Story v. Black, 5 Mont. 44. A party cannot permit competent evidence to be rejected without objection, and in the appellate court ask to have .a [135] judgment reversed because competent evidence was not admitted when offered. One of the purposes of a motion for a new trial is to give the trial court an opportunity to review its own decisions, but unless there is an exception, this purpose would fail even in the lower court. The letters not having been received in evidence for the purpose of establishing the alleged trust, we are relieved from an3r inquiry as to whether they do so or not. But without looking into the letters, it would be pretty safe to say that a person who did not own or have any interest in property could not create a trust in the same in favor of another while yet the property belonged to an unsettled estate, no matter how strong and favorable letters he may have written in his own behalf on the subject. And it would be equally difficult for a person so situated, by his own verbal declaration and testimon3r, to create a trust in another’s favor in order to validate an account of his against such person. And that was the situation of the appellant. If he had been the owner of the property, and clothed with the right to create a trust therein, he could have done so only by a written instrument, properly signed as required by the statute. R. S. 435, sec. 160. If the appellant conveyed the property to respondent? then she became trustee for the estate, and such conveyance would not affect the rights of the parties. If the appellant expended money for Rutherford he must look to the estate for his pay, and hand over to the respondent the money received for the rent of her property, which he confesses he collected for her, and has in his possession. The judgment is affirmed, with costs.