Short v. Estey

• Decision Date: 24 November 1905
• Parties: SHORT v. ESTEY et al.
• Court: Montana Supreme Court

83 P. 479

33 Mont. 261

SHORT v. ESTEY et al.

Supreme Court of Montana

November 24, 1905

Appeal from District Court, Silver Bow County; Wm. Clancy, Judge.

Action by Z. A. Short against John F. Estey and others. Judgment for defendants. Plaintiff appeals. Affirmed.

Kirk & Clinton, for appellant.

W. F Davis, for respondents Estey. J. L. Wines, for respondents Umhang, Smith, and Capell.

BRANTLY C.J.

This action was brought to obtain a decree declaring the defendants trustees for the plaintiff of the legal title of an undivided one-sixth interest in the Ramsdell quartz lode claim situate in Butte, Silver Bow county, and directing a conveyance by them to him. An accounting is also demanded for the rent of the property during the time it has been occupied by the defendants. The complaint alleges, in substance: That on January 1, 1893, the plaintiff was the owner of said interest and certain buildings upon the claim, and was in possession of the claim under an arrangement with his co-owners. That on that date he executed a deed to the defendant John F. Estey, and delivered the possession to him with the exception of one small cabin, which plaintiff retained. That, though the deed was absolute in form and for a consideration stated therein, its purpose was to convey the title in trust for plaintiff, and was so accepted by Estey as is witnessed by the following writing, executed by him at the same time and delivered to plaintiff: "This is to certify that for the sum of five thousand dollars ($5,000.00), for which I have given my note, I have bought all of Z. A. Short's interests in the Ramsdell mining claim, formerly known as the 'Maude S.,' together with three houses. I agree not to dispose of any of the property in any manner but to take good care of it all. I will deed him back all of the said property at any time that he wants it, if he pays me for the brick house that I build on the ground or what it is worth at the time he buys it. I will also promptly refund to Z. A. Short all rents that I am allowed to collect, the use of ground to be compensation for services. [Signed] John F. Estey." That thereafter said Estey entered into the possession of the premises, and collected all rents for the same, fully accounting to plaintiff therefor until February 1, 1895. That he thereafter failed to account further, but converted the rents to his own use. That plaintiff, prior to the bringing of this action, demanded a reconveyance of the property and an accounting, offering at the same time to pay to plaintiff the price of the brick building referred to in the foregoing writing. That the other defendants claim some sort of separate interests in the premises, but that such interests, whatever they are, were obtained by them from Estey with full knowledge of plaintiff's rights, and are therefore subject and subordinate to them. The defendants Estey and wife admit that the property was conveyed to John F. Estey by the plaintiff, but allege that such conveyance was made to him in pursuance of an absolute sale to him by plaintiff for a valuable consideration, without condition or reservation, or any understanding or agreement on his part, that he was to reconvey at any time or account for the rents. They specifically deny the execution and delivery of the agreement set forth in the complaint, or any other agreement at any time of like import. Each of the other defendants filed a separate answer, in which he claims as a purchaser of an interest, either directly or by mesne conveyances, from Estey, and alleges that he purchased in good faith for value, without notice of plaintiff's equities, if any such there are. The plaintiff by replication denies all the affirmative allegations of the defendants. The cause was tried by the court sitting with a jury. When the evidence had all been submitted, the defendants requested the court to direct the jury to render a verdict in their favor. This motion was sustained, and the jury directed accordingly. Upon the verdict so rendered judgment was rendered and entered for the defendants for their costs. Plaintiff has appealed from the judgment and an order denying him a new trial.

The first assignment is that the...