Roggenkamp v. Roggenkamp

SANBORN, Circuit Judge, after stating the facts as above, delivered the opinion of the court. The fundamental principle on which this decree is based is sound. One who appropriates to himself the benefit of an interest or equity in real estate that has descended to a minor heir thereby constitutes himself a trustee for the heir. He charges the title in himself, and in those who hold under him with notice, with a trust in favor of the heir that a-court of equity will enforce; and he renders himself personally liable to account for the rents, profits, and proceeds of [607] i he land which he tiras acquires. When the appellant used the contract'for the purchase of this land that his son held at his death, to obtain (he title for himself, he became a trustee* for (he minor heir, John Roggenkainp, Jr., and the title to the land stood charged with that trust as long as it remained in his name, or in the name of any one who held under him with notice of these facts, whether lie used the personal property of his sons estate to pay for the land or not. So far as the decree charges the title the appellant has to this land with this trust, therefore, it is right. Musham v. Musham. 87 Ill. 80; Stow v. Kimball, 28 Ill. 93; Schaffner v. Grutzmacher, 6 Iowa. 137; Fox v. Doherty, 30 Iowa, 334; Sentill v. Robeson. 2 Jones, Eq. 510; Graves v. Pinchback, 47 Ark. 470, 1 S. W. 682; Hall v. Vanness, 49 Pa. St. 457. There is more doubt, however, whether the evidence in this record warrants the measure of relief given by the decree. The appellant seems to have taken the real and personal property which his son left at Ms death to pay the son’s debts, and to save the expense of administration through the probate court, rather than to profit by it himself. He alleges that he expended the proceeds of all the personal property in paying these debts and that he paid more than $1,000 of his own money to perfect the title to the land. If this be time, he is entitled to charge against (lie land the amount that he paid from his own funds to perfect, the title, and the heir should be required to allow this amount before be recovers the land. Under the common law, one who intermeddles wilh the personal property of a deceased person, and disposes of it, or does any other act of administration of the assets without the authority or direction of the proper court, or of the will of the deceased, thereby constitutes himself an executor de son tort. He cannot by his wrongful act acquire any benefit: for himself. The rightful executor or administrator or any creditor or legatee may maintain an action against him for the property of the deceased which he has taken, and may compel him to account for its disposition and value; but in all acts that are not for his own benefit and that a lawful executor might do he is protected. He cannot be charged beyond the assets which come to Ms hands, and against these he may set off the just debts which he has paid. 1 Williams, Ex’rs, pp. 296, 305, 308; Bacon v. Parker, 12 Conn. 213; Emery v. Berry, 28 N H. 473; Bellows v. Goodall, 32 N H. 97; Glenn v. Smith, 2 Gill & J. 493; Weeks v. Gibbs, 9 Mass. 74; Winn v. Slaughter, 5 Heisk. 191; Tobey v. Miller, 54 Me. 480; Olmsted v. Clark, 30 Conn. 108. It is unnecessary to inquire in this case whether or not an inter-meddler with the personal estate of a deceased person becomes an executor de son tort, and liable to account at the suit of a creditor or legatee under the statutes of the state of Nebraska. It is certain that the appellant, by undertaking to administer the estate of Ms deceased son without the sanction of the probate court, made Mmself liable to account to the rightful administrator for the value of the personal property he obtained from that estate. Consol. St. Neb. 1891, § 1214. But it would have been a perfect defense to a suit by the administrator for such an accounting that the appellant [608] had paid all the just debts of the deceased, and that he had exhausted all the assets he had received from the estate in paying these debts. The heir had no right to or equity in the personal property of his father, as against a stranger, superior to those of the lawful administrator. He alleged in this suit that the appellant had appropriated the proceeds of the personal property of the estate to the purchase of the land he sought to recover. The appellant denied this, averred that he had used all the property of the deceased and some of his own to pay the just debts of the deceased, and that he paid for this land with his own money. The appellant was entitled to a fair accounting that would determine this issue, and find what balance, if any, of the value of the personal property he received, remained in his hands after he was credited with the payments he made on just debts of the deceased. He was not liable to be charged with the use of any more property of the deceased in the purchase of this land than the amount of such a..balance. We have searched the record in this case in vain for the statement of such an account, or of evidence that an accounting upon this basis has been had in the court below, and we are unwilling to affirm the decree without it. There is another respect in which the record is- singularly defective. The holder of the legal title to the land is an indispensable party to a suit to annul, or to compel the conveyance of, that title. U. S. v. Winona & St. P. R. Co., 67 Fed. 948. This suit was commenced on September 14, 1891. There is a statement in the brief of the appellee that a notice of lis pendens was then filed in the proper office in the county in which the land is situated, but the record does not disclose that fact. It does appear from the record, however, that on November 10, 1890, one John P. Bratt purchased this and other lands from the appellant; that on March 1, 1891, he took possession of them; that he had paid $7,884 on account of this purchase before this suit was commenced; and that the appellant conveyed the legal title to the land here in controversy to him on November 24, 1891. It goes without saying that the title to this land held by Bratt cannot be affected by a decree in a suit to which he is not a party, and of which he had no notice before he paid for and took his title. For these reasons, the decree below must be reversed. If the appellee John Roggenkamp, Jr., desires to recover this land, he should be permitted to make John P. Bratt a party defendant, if that can be done without ousting the jurisdiction of the court below. If he does so, and the evidence then establishes the fact that Bratt took the title with notice, the appellee Roggenkamp may recover the land on equitable terms. If, on the other hand, Bratt cannot be made a party to this suit, or if the evidence establishes the fact that he was a bona fide purchaser for value without notice, then the guardian of John Roggenkamp, Jr., may have an accounting with the appellant, in which he should be charged with the amounts he has received, and credited with the amounts he has expended on account of this land. It is indispensable to a just determination of this suit that the matter of the accounting should be referred to a master, with in [609] structions to Rear evidence, and to state an itemized account against tRe appellant, in which he shall he charged with the value of each item of the personal property of his deceased son that he sold or converted to his own use, and in which he shall he credited with the various amounts which he paid on account of the just debts of the deceased. If, after confirmation by the court, the balance of this account is against the appellant, and is less than the amount which he paid for the land, the master should state another account, in which he should charge the appellant with this balance, with the rental value of the land from 1888 until he sold it in 1891, with the amount he then received for the land or its value, and with interest on all of these items, and should credit him with the amount he paid for the land, the taxes he paid upon it, and the value of the improvements he made upon it, with interest upon these items. After these reports of the master have been received and conflrmed by the court, the suit should proceed to final hearing and decree. The decree is accordingly reversed, without costs, and the cause remanded, with directions to proceed in a manner not inconsistent with the views expressed in this opinion.