The silver messenger. (Challis, Idaho) 1890-1912, 1897-08-17

ers and conveyed the Dickens
mine and other properties TO
Dooly to convert the same into
money and pay Norton's debts,
turning over the balance, if any,
to Norton or his heirs. 1t is al
legged that Dooly received the
property and accepted the trust;
that he received for personal
property sold, $l1, 900 and that
he converted the Dickens mine
and other properties into money |
and mingled it with his own;
that the amount of money so re-
ceived by him was more than
sufficient to pay all of Norton's
debts, but that the defendant has
failed to apply the proceeds as
required by the trust, or to make
an accounting.
In his answer, the defendant
admitted the conveyance and the
trust, but denied that the plain
tiffs were creditors of Norton, or
that any of the personal property
was sold for a greater sum than
$3254.12. He claimed further
that Norton owned only two.
thirds interest in the Dickens
mine, and that the defendant had
no trust money in his hands. 1t
was also set forth in his answer
that he had mortgage on Nor
toms two-thirds of the Dickens
mine for $4,000, and that W. S.
Mccormick had a mortgage of
SIS. 900 on the other one-third;
that by foreclosure proceedings
in Custer county, Idaho, where
the Dickens mine is located, the
property was sold to satisfy liens
and mortgages, in February,
1886. including a claim of S22, 1886
in favor of Mccormick and one of
S25, $40 in favor of Dooly; that
the decree permitted the parties
to the action to bid and become
purchasers. In this proceeding,
Dooly bid in two-thirds inter
est for $4,000 and Mccormick
bid in the other third for S24, 900.
In the mean time Norton made
his will, in June, 1884, making
Dooly his executor, and died in
July of the same year. Hamil-
toms claim was for medical at
tendance during Norton's illness.
Prior to this, however, Norton
decided one-third interest in the
mine to Rohrer, who conveyed it
Z back to Norton to enable him to
, sell the property.
r In the meantime, the property
3 was sold by Dooly to an English
/; syndicate for $3.50, 900, of which
$4,000 was paid in cash and the
Q balance in debenture bonds
: Fifty thousand dollars of this
+ was to go to John Marshall, pro
: moter of the sale. The bonds
: were sold at 60 per cent of theil
par valve. Out of the proceeds
it is stated, Dooly pad McCor
nick for his one-thifd interes
and laid claim for himself to two
] thirds of the net proceeds, which
he contended was not subject t.
- a trust of any kind.
I When the case was tried il
1891, the lower court issued al
= interlocutory order in favor o
the plaintiffs and ordered the de
r visees of Norton to be made par
:, ties to the suit and that finding
2 be made and decree entered; tina
the sale of the property was TO
the benefit of the trust fund an,
i that the proceeds of such sale b
= accounted for by Dooly, as trus
tee, and that the matter be refer
= red to a master who should re
!. ceive the accounting.
In November, 1895, differen
&c Judge came upon the bench an
- by him motion was granted
:, amend the conclusions of la'
. and the case was dismissed. l
|, this, the conclusions were S
y amended as to determine that th
* proceeds of sale received b
"a Dooly were not trust funds an
- in December, 1895, a final juds
=. ment was entered in f;vor of th
- defendant.
The opinion at hand is by Ju
q tice Bartch, concurred in by Ju
tice Miner and District Judg
10 Hiles, the conclusions in whic
- are that as the respondent, GU
side of his relations as m or
>, gage, was trustee of the pro
- erty and that under the facts {
revealed by the records he d
not acquire an indisputable tit
!. by foreclosure, and that he mu
90 be required to account for Il
~ profits of the sale to the syn6
cate.
Fraud may exist and yet NJ