McLeod v. Evans

• Decision Date: 15 May 1886
• Citation: 28 N.W. 214,66 Wis. 401
• Parties: MCLEOD v. EVANS, ASSIGNEE, ETC.
• Court: Wisconsin Supreme Court

66 Wis. 401

28 N.W. 214

MCLEOD

v.EVANS, ASSIGNEE, ETC.

Supreme Court of Wisconsin.

May 15, 1886.

For majority opinion, see 28 N.W. 173.

CASSODAY, J., ( dissenting.)

I fully indorse what is termed the “progressive” or “modern rule” of equity, as stated by JESSEL, the late learned master of the rolls, in Re Hallett's Estate, 13 Ch. Div. 696, to the effect that if a person holding money as a trustee, or in a fiduciary character, pays it to his account at his banker's, where it is mixed with his own money, and thereafter draws out sums by checks in the ordinary manner, he must be taken to have drawn out his own money in preference to the trust money. In that case the trustee, Hallett, died, and the action was for the administration of his estate. The question arose upon claims by several persons against moneys in the hands of Hallett's bankers. There was no question as to the solvency of the estate. There was no dispute that the money received by Hallett for the bonds he improperly sold was deposited with his bankers to the credit of his account, and “that the money remained at his banker's mixed with his own money at the time of his death.” It was simply held that the cestui que trust could take the proceeds of the sale if they could be identified, and, if not identified, but traceable into other property, or a mixed fund, then she could have a charge or equitable lien upon such other property or fund for the payment of the amount which her money had increased the fund. Such seems to be the well-established rule. Here the draft did not go into the assets of Hodges' Bank. He sent it to the Chicago bank, where it was credited to his general account. Whether his account with the Chicago bank was then overdrawn or not does not appear, but when he failed, a few days later, it was overdrawn $1,200. At that time there was only $600 in the bank. The assets which went into the hands of the assignee included nothing dated within a month.

It conclusively appears from the undisputed evidence, and is, in effect, found by the court, that the assets which came into the hands of the assignee neither include the draft nor the proceeds arising therefrom, nor anything taken in exchange for it, or any part of it, unless it was the $600. Of course, the plaintiff has no right of action against the assignee personally. He seeks to charge the assets in the hands of the assignee only by reason of a supposed equitable lien. Upon what theory was he entitled to...