Veile v. Blodgett

49 Vt. 270

Opinion

The opinion of the' court was delivered by

Powers, J.

Before proceeding to a consideration of the various points made in argument touching the claims of the orators to relief, it becomes necessary to ascertain precisely the facts that are established by the proofs.

The defendant Luther P. makes no answer to the bill ; and he is the witness relied upon by the orators to establish their case. The other defendant, Mary Ann, filed an answer to the bill, but adduces no evidence in support thereof, and her defence thus wholly stands upon her answer. Her answer is traversed, and much has been said- in the case as to the effect that is to be given this answer as proof.

The general rule in equity upon this subject, as has often been declared, is, that two witnesses, or evidence 'equal to that of two witnesses, is required to overcome the sworn answer of the defendant, responsive to the bill. Other authorities say the rule requires one witness with corroborating circumstances. The rule has its basis in the fact that the answer is called out by the orator for his own use. If it admits the fact charged in the bill to be true, the orator adopts this admission as sufficient proof of the fact. If the answer denies the fact charged, the orator is left to establish it by other moans, if he can, and at the same time the denial is evidence for the defendant. The denial is made evidence by the circumstance that the orator has called it out for the purposes of proof, and thereby made it proof.

But the rule, as often announced, respecting the effect of the answer as proof, is, we think, misleading, as a careful examina- . tion of the authorities will slrow. The weight of evidence does not depend upon the number of witnesses that depose to given -facts. -The burden of proof, when an answer is responsive to the bill, devolves upon the orator to' satisfy the trier that such answer is untrue; and this burden may be oftentimes discharged by documentary proof or circumstantial evidence, without the deposition of any witnesses testifying to the facts set out in the bill. 2 Dan. Ch. Pr. 840, n. 2. '

It is obvious that a sworn answer, responsive to the bill, stands as the deposition of one witness; and if encountered by only one witness testifying in contradiction, and no circumstances appear affecting the' case, no preponderance of proof is made out on either side, and the orator must fail because the burden of proof is upon him. But the answer, considered as evidence, is to be weighed precisely as it would be if it appeared in a deposition disconnected from the defendant’s pleading; and the fact that the defendant is interested in the event of the suit, has the same effect in discrediting his story that it does in an ordinary case at law. Again, if the answer is evasive or equivocating, it lessens its force as evidence precisely as such circumstances impair the story of a witness told on the witness stand. In short, the answer, when used as evidence, is subject to the same proper criticism, and the same legal 'infirmities, that attach to all evidence, in whatsoever form it is introduced in court.

All that the orator is bound to do is, to meet and overcome the answer by competent proof. This proof may require one or twenty witnesses; it may be made without any. “ It is important to state here the true import of the rule in equity, that an answer responsive to the allegations and charges made in a bill, and which contains clear and positive denials of them, must prevail, unless it is overcome by the testimony of two witnesses, or at least by one witness and attendant circumstances. * * * * * The

rule as stated has reference to an answer opposed only by the testimony of one witness. But if the evidence in the cause, no matter what it may be, is sufficient to outweigh the answer, the plaintiff may have a decree in his favor.” Mitf. Ch. PL, Tyler’s ed., 1876,462. The foregoing extract from Mitford, who has been justly called the “ master of equity pleading,” states the rule in satisfactory terms.

Another rule relating to the answer as evidence is important to be noticed here. The authorities all agree that the answer is evidence only when it is a direct and explicit denial of the allegations made in the bill. If it denies such allegations on information and belief, it is not evidence. If the defendant sets up other matters in confession and avoidance of the charges made in the bill, such other matters are not evidence. Such allegations in the answer are mere pleading, and if relied upon by the defendant, must be'made out by proof, if the answer is traversed.

The bill in this case in substance charges that the defendant Lúther P., being the trustee of the oratrix Mary Jane, “ paid in money towards the consideration ” of the purchase of certain premises in Burlington, bought by the defendant Mary Ann — the title to which was taken in the name of the said Mary Ann — the sum of two thousand dollars ; and that this sum of two thousand dollars was money held by Luther P. as trust money belonging to the oratrix. And the bill seeks to follow this money into the land so purchased, and charge the same with a trust-in favor of the oratrix.

The gist of the charge in the bill upon this point is, that Lu ther P. misapplied the trust fund by using it in payment of the purchase money of the premises bought by Mary Ann. The trustee had no right thus to invest trust funds, taking no security for repayment, and upon such breach of trust, the cestui que trust may follow such funds so long as they can be traced, unless they or their product have come into the hands of a bona-fide purchaser for value without notice of the trust.

The defendant Mary Ann seeks, in her answer, to stand in the relation of such bona-fide purchaser to this fund. After denying the payment of the money to her towards the purchase money of the premises, she avers that she received the money as the consideration of her promise to marry the defendant Luther without notice of its being trust money. This part of her answer is in no sense responsive to the bill. If true, it would be a good defence, to the claim of the orators. Jackson v. Rowe, 2 Sim. & Stu. 472. But as it stands, it is not evidence in the case to be considered. The case, then, is to be determined upon that part of the answer that is claimed to be responsive, aud the counter proofs. The denial of the answer to the charge of the bill is somewhat evasive ; it hardly comes within Mitford’s statement that it must contain a “clear and positive” denial of the allegation, in order to be proof. She denies “ that said Luther P. paid any money to her for the purchase of said place out of any money belonging to said Mary Jane,” &c. The “ clearness ” and “ positiveness ” of this denial will be seen by looking at the allegation she is by the bill called upon to admit or deny. It is, “ that Luther P. paid in money towards the consideration of said purchase,” &a. It may not have been paid to her, and still may, as charged, have been paid to the vendor or some agent towards the consideration of said purchase, and for her benefit. Nor do the words, “ or otherwise ” help the denial, for the whole allegation is limited to a payment to her. If she, as a witness on the stand, in answer to the question, “ Did Luther P. pay any money towards the consideration of that purchase ?” had replied, “ He paid none to me,” it is more than probable that she would be troubled with a renewal of the inquiry. She admits the receipt of two thousand dollars in money from Luther P. in 1865. This was four years before her intermarriage with said Luther P. We are entirely satisfied on the evidence that this money was delivered by Luther P. to O’Grady, a brother of Mary Ann, and for her benefit, with an understanding that it was to be paid out as the purchase money of the premises in question, that it was so paid out by said Mary Ann, and that the title to the premises so purchased was taken in her name, and that as the case stands, her relation to the money and to the premises purchased with the money is that of a mere volunteer. She holds trust funds which belong to the oratrix, without consideration, a constructive trust is thereby raised in favor of the oratrix. 1 Perry Trusts (2d ed.), ss. 217, 241; Hill Trustees (4th Am. ed.), 274 and notes. A volunteer receiving or dealing with trust funds,, stands in the same position as a purchaser buying trust «property with notice of the trust; he will be charged with a constructive trust in favor of the true owner, and upon the demand of the true owner, equity will decree a conveyance to him or charge the estate with the payment of the money. 1 Perry Trusts, supra; Hill Trustees, supra; Blaisdell v. Stevens et al. 16 Vt. 179 ; Abell v. Howe et al. 43 Vt. 403 ; Boursot v. Savage, L. R. 2 Eq. 134; Hopper v. Conyers, L. R. 2 Eq. 549.

It is ui’ged by counsel, that Luther P. testifies that the money was loaned to Mrs. Hinckley, and that no trust can arise in such case. It is unquestionably true, that a loan of money from A to B, will not raise a trust in favor of A in the estate purchased by B with the money ; but the fallacy of the defendant’s position is in the fact assumed, that Blodgett had the right to make the loan. In the case supposed, if the money loaned by A was not his, but trust funds belonging to C, there would be no difficulty in fastening the trust in favor of C upon the estate. 2 Perry Trusts, s. 832; Ernest v. Craysdill, 2 De G. F. & J. 175. The trust so fastened upon the estate purchased, grows out of the breach of trust in misapplying the fund.

It is further insisted in the answer, that the defendant Mary Ann has a homestead in the premises, as against the rights of the orators. It is an established doctrine in the law of trusts, that a trustee cannot make any profit out of the trust property, or ac quire any title thereto, as against the cestuis que trust. Luther P., then, could not buy a homestead with the trust money, and hold it ag'ainst the oratrix. Can the defendant Mary Ann, receiving the trust money without consideration, have any greater protection in its use than Luther P. on whose right she stands ?

Counsel further insist that the money was loaned to Mary Ann by Luther P. before their intermarriage, and that the subsequent marriage of the parties had the effect to extinguish the debt; but this position is not well taken. The wrongful act of Luther P. in loaning the money is not legalized by the marriage. It is not in the power of a trustee, by gift, loan, or other disposition of the trust fund in any manner whatever, to a mere volunteer, to put it beyond the reach of its rightful owner.

Again it is said that the proceedings of the orators in obtaining their judgment at law, and in making the levy and set-off on their execution, were irregular, and that the defendant Mary Ann may question those proceedings, inasmuch as this is her first opportunity to do so. She was no party to those proceedings, and when they are made use of as the foundation of ulterior proceedings affecting her rights, she no doubt may call such proceedings in question if they have operated to her prejudice.

The proceedings at law were taken to ascertain the amount due from the trustee to his cestui que trust, and they resulted in fixing a sum less than the amount which Mary Ann confessedly received.

The orators having established the amount of their claim, proceed in the usual way to collect it by levying their execution upon the premises in question; but fail to reach the title because the apparent legal title is in a volunteer instead of the trustee, where it ought to be. Under such circumstances, equity will treat the title as it should be; and extend the lien' of the levy and set-off to the estate to which it rightfully attaches; and whether one of the appraisers was qualified to act is wholly unimportant. The proceedings in equity are instituted in order to reach the trust money, or the estate standing in lieu of it; and the particular form in which a lien is engrafted upon the estate, so long as no more than what is rightfully due is demanded, is a matter of minor importance. Under the facts of this case, no at law were essential to the attainment of the orators’ rights. A valid lien upon this estate could have been established by proceedings in equity. The course pursued leads to the same result, and does not prejudice any rights of the defendant.

A court of equity on the chase after trust money, will not stop to speculate long over a choice of routes, so long as all lead to the desired destination.

’ We discover no reason why the premises in question should not be subjected to the demand of tbe orators in the manner directed by the Court of Chancery, and accordingly the decree of that court is affirmed, and the cause remanded.