Stowe v. Bowen

A. executed an invalid deed, conveying his money, which was in B.’s possession, to B., C. and D., to invest and hold on certain trusts. B. paid the money to C. in presence of D., who advised wad acted with B. and C. in the future administration of the trust but never had possession of any part of the fund. Held, that D. was not liable to A. for the fund as for money had and received by him to A.’s use, in the absence of fraud on his part and of any agreement by him to be jointly responsible with the other trustees. The objection that a defence is not open to a defendant under his answer must be deemed to have been waived, if first made at the hearing of exceptions to a ruling on evidence introduced in support of such defence without objection at the trial on a review of a cause in which the original judgment was entered on default.

Writ of review. The original action was brought in 1862, in the superior court, by Edwin V. Reed, as special administrator of the estate of Christian Albee, against William L. Brown, Nathaniel Francis and Phineas Stowe, for money had and received by them to the plaintiff’s use. Brown, who was an attorney at law, appeared for all the defendants, and filed an answer denying that Albee was dead, and that the plaintiff was administrator, alleging that the court had no jurisdiction of the cause, as the whole transaction to which it related concerned a trust, and that the only transaction which the defendants ever had with Albee was as trustees in a deed of trust executed by him, a copy of which was set forth; further alleging performance of the trust; setting up also the statute of limitations; and concluding with an averment that they did not owe the plaintiff anything. Brown died while the action was pending. No other counsel appearing in his stead, a default was entered and judgment taken against the defendants in 1863, which was the judgment sought to be reviewed. The action of review was tried on the original pleadings, and a replication which alleged that the execution of the deed of trust set forth in the answer was procured by fraud and while Albee’s mind was unsound. At the trial, in the superior court before Morton, J., these facts appeared : Albee was a sailor, born in Boston, where he resided when not at sea. In September 1852, he sailed from Boston for San Francisco, and he had not been heard from since August 12,1853, In May 1861 the defendant in review was appointed administrator of his estate. On May 23,1851, Albee, with Brown, Francis and Stowe, had executed the deed of trust, which recited that he owned $1100, which he transferred to them as trustees, to pay his debts, invest the balance then remaining, and apply it to his support at their discretion, and on his death to pay to Brown’s own use one third part of such sum as might then remain, another third to Stowe, who was pastor of a Seamen’s Baptist Bethel, to be applied to promoting the Christian welfare of sailors, and the remaining third to Francis, to be applied to charitable purposes at his discretion. The trust fund was at that time in the hands of Brown, and was then paid over by him to Francis, and invested in notes secured by mortgage, and held thereafter by Francis. Stowe accepted the trust, and advised and acted with the other trustees ; but it did not appear that any of the fund ever came into his personal custody, although he was present when it was paid over by Brown to Francis, and was consulted and gave advice as to its investment, and as to the final disposition of the notes. Several hundred dollars of the trust fund were expended for the support of Albee; and the defendant in review claimed to recover the balance, and offered evidence tending to show want of mental capacity in Albee prior to, and at the time of, the execution of the deed of trust, and that such incapacity continued to the time of his death; and also offered evidence tending to show that Albee was induced to execute the deed by false and fraudulent representations made to him by Brown, as to the existence and condition of a niece, Albee’s only living relative, who was the wife of the defendant in review. But “ it was not claimed by the defendant in review that either Stowe or Francis were guilty of any fraud or concealment whatever in the premises.” The plaintiff in review requested the judge to instruct the jury, “ that, if the trust deed was void from, or could be avoided on the ground of, fraud practised at the time of, or before, its execution, in which Stowe had no part, and of which he had no knowledge, and the trust fund named in said deed came into the custody of one or both of his cotrustees, Stows could not be held liable in this action for the same, unless the money or some part of it actually came to his personal possession.” The judge refused this request, and submitted the case to the jury with the instruction, among others which are now immaterial, “ that if they were satisfied that Albee was induced to execute the trust deed by false and fraudulent representations made by Brown, though without any participation or knowledge of the other persons named as trustees therein, and that the fraud was concealed from Albee, so that he did not discover it until within six years of his death, the deed would be void, and the defendant in review could maintain his action.” The jury returned a verdict for the defendant in review; and the plaintiff alleged exceptions.