Caldwell v. Boyd

• Decision Date: 15 January 1887
• Citation: 9 N.E. 912,109 Ind. 447
• Parties: Caldwell and others v. Boyd.
• Court: Indiana Supreme Court

109 Ind. 447

9 N.E. 912

Caldwell and others

v.Boyd.¹

Supreme Court of Indiana.

January 15, 1887.

Appeal from circuit court, Henry county.

Brown & Warner and Brown & Brown, for appellants. J. C. Downey, I. L. Bloomer, D. Turpie, and Mellett & Bundy, for appellee.

Howk, J.

In this cause errors are assigned here by appellants, the defendants below, which call in question (1) the correctness of the court's conclusions of law upon its special finding of facts, and (2) the overruling of their motion for a new trial.

After the cause was put at issue, it was tried by the court, and, at the request of all the parties, the court made a special finding of the facts, and thereon stated its conclusions of law. The facts found by the court were substantially as follows:

(1) One Eli Davis, by his last will, which was probated in the year 1871, directed that $20,000 be set apart and held by his administrator, or such trustee or trustees as might be appointed by the court having probate jurisdiction, to be held in trust under the direction and supervision of such court for the use of his son, Clinton Davis, during his natural life; the interest thereon to be paid semi-annually to said Clinton Davis until his death, the principal then to go to his heirs. A copy of such will is then set out, which we omit.

(2) The defendant Caldwell was, by the proper court, duly appointed trustee to receive and manage said fund. He accepted such appointment, and qualified as such trustee, on the twenty-fourth day of July, 1872. On the thirtieth day of April, 1873, he filed in the Henry circuit court an inventory of the assets of said trust fund, charging himself with $20,000 of principal and $555.81 interest received by him to that date. He made other reports to the court, from time to time, all of which were examined and approved.

(3) On the sixth day of October, 1875, he filed in said court his written resignation of said trust, and the court appointed one Martin L. Bundy as his successor. On the twenty-sixth day of January, 1876, he filed in said court his final settlement report, and a receipt from his successor, Bundy, for the residue of the trust fund remaining in his hands, which report was approved by the court, and he was finally discharged. Subsequently thereto and before the bringing of this suit, said Bundy resigned, and the plaintiff in this action was appointed to succeed him.

(4) Among the assets turned over by the defendant Caldwell to his successor, Bundy, were three notes, for $1,200 each, executed to him as such trustee by one Lewis V. Caldwell, on the twentieth day of July, 1875, payable, respectively, in one, two, and three years from date, with interest at the rate of 10 per cent. per annum, on which the interest had been paid to July 20, 1877. These notes were all secured by a mortgage on a certain 80-acre tract of land in Rush county, Indiana. The facts in relation to said loan and said mortgage are as follows: On said twentieth day of July, 1875, the defendant Caldwell, being the owner of said mortgaged land, conveyed the same to said Lewis V. Caldwell, who was his son, for the agreed price of $5,200. The defendant retained the $3,600 evidenced by his son's notes, and secured by mortgage on the land so conveyed, but by what arrangement, or upon what kind of an agreement, does not appear. Default having been made in the payment of such three notes, suit was instituted thereon, and for the foreclosure of such mortgage, by Bundy, as trustee, against Lewis V. Caldwell and his wife, and the defendant Caldwell, in the Rush circuit court, and such proceedings were had in such suit as that, on March 5, 1878, the court rendered judgment therein, in favor of such trustee, for $3,820, the amount found due on such three notes, and decreed the foreclosure of such mortgage, and the sale of the mortgaged land, and appointed a receiver to collect the rents of such lands, and apply the same to the payment of the mortgage debt. Afterwards, Lewis V. Caldwell having died intestate, on a complaint filed for that purpose against the widow and heirs at law of such decedent, the Rush circuit court, on the fourth day of June, 1879, revived such judgment and decree against them, and found there was then due thereon the sum of $4,161. Under an order of sale issued on such revived judgment and decree, the lands described therein were sold by the sheriff of Rush county, according to law, on the second day of August, 1879, at which sale appellee, Boyd, trustee for said fund, became the purchaser for the sum of $3,800, out of which sum, after the payment of the costs, there was credited on such judgment and decree $3,670.60, leaving a balance of $525 yet due on such judgment and decree, and wholly unpaid.

(5) After appellee, as trustee for such land, had received a deed from the sheriff of Rush county for the land so purchased, he sold such land, under an order of the proper court, on the fifteenth day of April, 1881, to one Joseph Carter, for the sum of $4,000. Such sale was made at an expense of $65 to the fund, but the trustee had in the mean time received $76.50 from timber sold, and $175 from rent of the land. At the time of the foreclosure sale of such land it was worth $4,500.

(6) Among the assets turned over by appellant Caldwell, at the time of making his final settlement report, to his successor in the trust, was an open account against the beneficiary, Clinton Davis, for the sum of $1,618.79, for which sum he received credit on making his final settlement. The sum originally owing to the appellant Caldwell, from the beneficiary in the trust fund, was $1,978, as shown by a written agreement between them made on the twenty-second day of July, 1874, in the words and figures following: (Here a copy of such agreement is set out, which we omit, but give a summary of all that is material therein.) The agreement contained an itemized statement of the moneys paid by Caldwell to or for the beneficiary, and of the debts of the latter assumed by the former, amounting in the aggregate to said sum of $1,978. It is then stated therein that Clinton Davis had on that day assigned to Caldwell, as collateral security for the repayment of such moneys and debts, a policy of insurance on his life, in the Franklin Life Insurance Company of Indianapolis, for $2,500, and that the annual premiums due thereon were to be paid by Caldwell out of the interest in his hands belonging to said Davis. The agreement then proceeds as follows:

“Now, the said Clinton Davis hereby orders and directs the said James L. Caldwell, as such trustee, out of the interest so due to him semi-annually out of said trust fund- First, to retain and pay all the charges and expenses incidentto said trust, including taxes, and also the premium, as the same becomes due, on said policy of insurance; secondly, to pay to said Clinton Davis, on the twentieth of January, 1875, the sum of $350, and on the twentieth day of July, 1875, $350, and $300 semi-annually thereafter, until the foregoing amount of $1,978 shall be paid; and the said Clinton Davis hereby agrees, orders, and directs the said James L. Caldwell to retain all the residue of said semi-annual interest, as the same becomes due, and apply the same to said sum of $1,978, with interest thereon at the rate of 10 per cent. per annum from the date thereof, until the whole of said sum, including the interest, shall be fully paid.

July 22, 1874.

[Signed] Clinton Davis.”

The said account had been reduced, by payments and credits, to $1,618.79, at the time the defendant made final settlement of his trust.

(7) At the time of his resignation and final settlement, the defendant turned the above-mentioned account over to his successor, who has at...