St. Paul daily globe., 1895-11-27
THE DAYTON CASE
SUPREME COURT HANDS DOWN
ITS FINDINGS IN THE DIS
PUTE.
TIE ORDER IS MODIFIED.
But THE LOWER COURT SUS-
TANNED IN MOST POINTS At
ISSUE.
tS
OTHER DECISIONS I'fLED.
Order Reversed in the Case of
Sarah Ia. Withers VS.. IL. B.
Withers-COurt News.
tS ms =
,THER DECISIONS IPfLED.


by the court that May /. Dayton
held all of his real estate in trust
for him. Since his death, which oc-
Cured after the trial, the action has
been continued by the executor.
James c. Reed, the son and devisee
of May I. Dayton, was appointed her
executor and he is made defendant.
The other defendants claim title to
the greater portion of this real estate
by reason of an execution sale on
Judgment against May /. Dayton in
her lifetime. The case was tried be-
fore the court without jury and
judgment ordered for defendant.
From an order denying this motion
for a new trial, plaintiff appeals.
The original complaint alleges that
in 1868, and ever since until the time
of her death, May l. Dayton was the
wife of plaintiff, Lyman c. Dayton.
After the commencement of the trial
plaintiff moved to amend his COM
plant by alleging that she never
was his wife, but that prior to her
marriage with him in 1885 she mar
ried one Willoughby II. Reed, and
continued to be his wife until he died
in $780, That plaintiff always sup
posed that she was his wife, and
that he fraudulently procured plant
iff to take all of said conveyanceS to
her instead of to plaintiff himself
by fraudulently holding herself to
him as his lawful wife. The amend
ment was intended to raise in plaint-
ifs favor trust eX maleflcio in her.
The court denied the motion, and
this is assigned as error.
The trial court found that the first
two deeds were forgeries, and, so far
as they purport to be the deeds of
May 1. Dayton, the finding is sus-
tanned by the evidence. The develop
ments on the trial seemed to war
rant the courts finding, but the fact
that for many years before and since
his wife's death Lyman c. Dayton
has sought through the courts to re-
cover this property, but has never
before claimed to have such a con-
veyance of it, is also a circumstance
tending to support that finding.
In concluding his opinion Justice
Canty says: 1--WE are of the opinion
that the trial court would have been
justified in finding a trust eX male
ficio on this evidence. Such evidence
might bring the case within the class
of cases, in which the court declares
n trT1ct ay M Iofoio IoIr roacoo of tI,a
artifices Of the grantee in procuring
the property to be conveyed to him.
But we are also of the opinion that
the evidence was not so conclusive
in favor of plaintiff that the trial
court was bound to find for him"
1t is ordered that the conclusions
Of law be so modified; and in all
other respects the order appealed
from is affirmed.
The syllabus follows:
Frank A. Luce as executor of Lyman
Z. Dayton ct al, appellants, VS..
James c. Reed ct al, respondents.
l. Held, the court below did not
abuse it's discretion in refusing plant
iff leave to amend his complaint on the
trial.
2. A certain finding held supported
by the evidence.
8. A husband procured the title to
real estate to be taken in his wife'S
name; a subsequent declaration of
trust made and signed by her recited
that the consideration for the convey
ances was paid by her husband; that
the land was conveyed to her for his
use and benefit, and that she held it IN
trust for him, held void under section
1884, General Statutes 1894.
4. A verbal declaration of trust made
by the wife to her husband at the time
OF the above conveyances, also held
and the statute of uses and trusts.
D. Held, the finding of the court that
there was not trust ex maleficio, is
also supported by the evidence.
6. Held, this is not proper acton
in which to determine whether or not
the surviving husbands statutory in
terest in his deceased wife's real estate
is subject to the claims of her creditors.
but the same must be determined in
the probate court, which has exclusive
jurisdiction for the purpose. Order
modified. -Canty, J.
Other cases are:
Frank w. Malmsten & Caroline Malm-
stem, respondents, VS.. Charles ].
Rerryhill and Margaret L. Berryhill,
appellants.
When subsequent to the party's last
pleading, facts have transpired which
are material to his case and of which
he can only avail himself by supple
mental pleading, and if he makes a
proper showing and is not guilty of
pleading, the court has no discretion,
but it is it's duty to grant such leave
But held, in this case it sufficiently
party's own affidavits, that his pro-
posed supplemental pleading was un-
true; and it was not error for the court
TO refuse leave to file the same.
In an action to cancel a bond for a
deed, on the ground that the vendee
had failed to perform on his part, held
the court did not err in not giving him
a longer time in which to perform
before cancellation. Judgment af-
firmed -Canty. 7
Sarah K. Withers, respondent, VS.. II,
b. Withers, appellant
The question at issue was whether or
not sale had been made by defend
ant to plaintiff of the property replev-
led. Plaintiffs husband was called as
a witness on her behalf, and testified
that he conducted most of the negotia-
tions for the purchase of the property
on behalf of his wife, and all through
his testimony he talked of the trans
actions as largely his own, and the
property as largely his own,5 generally
using the word 1--WE" when speaking of
the same. He was asked on cross
animation if he did not, after the al
legged sale. state to certain person at
az certain time and place that he did not
purchase the property, and answered
that he did not so state. -.
Held, it was error to refuse to. per-
nit him to be impeached by proving
that he did so state. Order reversed. -.
-Canty, j.
John T.afferty aDpelIant VS. Josenh
Hawes ct al, respondents.
Held, the evidence is sufficient to
sustain the verdict and the finding
thereon that there was a surrender of
a leasehold by agreement of the par
ties.
Held, the answer was sufficient to
admit proof of a surrender by opera
ton of law as well as by agreeInent