Judd v. Dike

Beery, J. 1. This is an action for an accounting for property taken and held in trust by defendant for-plaintiff; also, for a partition of a part of such property, and the appointment of a receiver to effect the same. It is, therefore, an equitable action, and properly triable by the court without a jury. If it embraced any distinct issue which defendant desired and was' entitled to submit to a jury, he should have asked for its submission specifically, as he did not. Greenleaf v. Egan, ante, p. 316. 2. The plaintiff was the real party interested in the subject of the action, and therefore entitled to maintain the same in her own name. In fact, she would seem to be the only party who could maintain it, for her alleged trustee (her father) was dead, and it does not appear that any person had succeeded to his trusteeship. 3. The court below finds that, in the course of certain transactions relating'to property held by defendant in trust for plaintiff, defendant received certain bonds — a one-fourth interest in which defendant “held in trust” for plaintiff; that defendant had sold four of the bonds for cash; and that plaintiff was entitled to. her proportionate share of the sums received for them, with interest on the same from the times when such sums were respectively received. The defendant, expressly admitting in his brief that the judgment was entered by a computation of interest according to the finding, insists that the finding was wrong, in that interest should have been computed only from the time when the money received for the bonds was demanded. We do not agree to this. It does not lie in the defendant’s mouth to deny that it was his duty to pay or offer to pay do plaintiff her proportionate share of the money realized from the sale of the bonds as soon as he received it. If he recognized the trust, this duty followed as a matter of inference. If he repudiated the trust, and accordingly appropriated the money to his own use, it was a conversion. In either event he should make good the loss ensuing to plaintiff, by paying her interest from the time when she was entitled to the money. Judgment affirmed.