Third National Bank v. Stillwater Gas Co.

Mitchell, J.

Appeal from an order overruling a demurrer to the complaint. The question raised by the appeal is whether, upon facts alleged in the complaint, the respondent is (entitled to have a trust in its favor impressed upon a certain sum of money in the hands of appellant.

■These facts, so far as they bear upon the question, are, we think, fairly stated in the brief of respondent. They may be, perhaps, even more briefly stated, according to their legal import, as follows: E. W. Kerr, by fraud and deceit, obtained from respondent a loan of $3,500, the amount being placed to his credit, and subject to his draft or check, in respondent’s bank. Kerr afterwards drew out the money, and placed it in the possession and control of E. W. Kerr, as his agent, by causing it to be deposited in a bank in Stillwater to the credit, and subject to the cheek, of said E. W. Kerr. Subsequently the appellant, by fraud and false pretences, induced E. W. Kerr, as agent of E. W. Kerr, to pay over the money to it, (the appellant,) which he did by check upon the Stillwater bank. Subsequently E. W. Kerr died insolvent. To impress this money in the hands of appellant with a trust m favor of respondent,, and to recover the same, this action is brought.

*78 It is elementary that a person obtaining property by fraud acquires no title to it, but Jt is held by him, and by all persons claiming under him with notice,in trust for the_qrigina_l owner. So long as the property can be identified in its_originalj5r in a substituted form, it belongs to the original owner, if he elects to claim it ; and, if it passes into the hands of an innocent purchaser for value, the title of the defrauded owner, at his option, at once attaches to the avails, so long as their identity is preserved, no matter how many transmutations of form the property has passed through. So long as the trust property can be traced and followed into other property into which it has been converted, that remains subject to the' trust. The product or substitute has the nature of the original imparted to it. The depositing of trust money in a bank, although it creates the relation of debtor jmdj£editor between the bank and the depositor, does not change its character, or relieve the deposit from the trust. It is not the identity of the form, but the substantial identity of the fund itself, which is the important thing. In support of these propositions, and as illustrating the extent to which courts of equity have carried this principle, see Taylor v. Plumer, 3 Maule & S. 562; Pennell v. Deffell, 4 De Gex, M. & G. 372-387; Frith v. Cartland, 2 Hem. & M. 417; Knatchbull v. Hallett, 13 Ch. Div. 696; Overseers of Poor v. Bank, 2 Grat. 544, ( 44 Am. Dec. 399 ;) Van Alen v. American Nat. Bank, 52 N. Y. 1 ; People v. City Bank, 96 N Y. 32; Cragie v. Hadley, 99 N. Y. 131 , (1 N. E. Rep. 537;) Whitley v. Foy, 6 Jones, Eq. 34, ( 78 Am. Dec. 236 ;) Farmers’ & Mech. Nat. Bank v. King, 57 Pa. St. 202; Peak v. Ellicott, 30 Kan. 156 , ( 1 Pac. Rep. 499 ;) National Bank v. Insurance Co., 104 U. S. 54 ; McLeod v. Evans, 66 Wis. 401 , ( 28 N. W. Rep. 173 .)

Some cases go so far as to hold that the trust character still adheres to money, even though it cannot be traced into any specific property. In the case at bar it is not necessary to go to any such length in order to charge this money in the hands of appellant with ji trust in favor of respondent. Notwithstanding the various changes and transmutations through which it has passed, the money that has gone into the'hands of appellant is readily traced up and identified as the *79 -same money which E. W. Kerr obtained from ^respondent by fraud and_deceit, and is separable and distinguishable from any other ..prop; ■erty or assets of Kerr. It is unimportant that when appellant fraudulently obtained the money from Kerr it did not know that he had ■obtained it by fraud from respondent. Kerr certainly could have claimed the _money_ from appellant, and, upon the principles of the ■cases cited, respondent is at least subrogated to all the rights Kerr had.

This disposes of the main question in the case. The appellant, however, further contends that the complaint-is insufficient because^ it does not allege that at the time of demand, or at the time of bringing suit, it_still had the money it had thus fraudulently obtained. It is sufficient answer to this to say that, having traced the money into the appellant’s possession, it is presumed to be there still. _If the money was returned to Kerr before the demand, that would be a matter of defence.

Some point is made as to the form of the action. If a complaint •states a cause of action, it is no.ground of demurrer that_i_t prays for the wrong relief. But, with reference to future proceedings, we may .add that this action was properly brought as an equitable one, to_enforce a constructive trust, in which all parties interested in the disposition of the fund sought tó be reached are proper parties.

Order affirmed.