Trespass—Damages.—The defendant, with notice of the plaintiff’s claim to title, relying on his own supposed title, cut and carried away logs from the disputed premises. When the logs were at the mill a demand was made for them on the part of the plaintiff, and on refusal he brought this action. He was awarded the “stumpage” value of the timber, and appealed. The logs at the time of the demand were worth about twice the stump value. Held—The defendant having acted in good faith, the plaintiff can recover only actual damages, viz., the “stumpage” value. Whitney v. Huntington, 25 Cent. L. J. 349 (Minn.), and note. See Isle Royale Mining Co. v. Hertin, 39 Mich. 332 (also stated supra, p. 40).
Trust, Declaration of—Imperfect Gift.—Clerke was trustee for Mrs. Hewitt, the plaintiff, and was instructed to pay off a mortgage upon her property with the trust-funds. Instead of doing so he appropriated them to his own use, but paid the interest on the mortgage regularly, and so kept the plaintiff in ignorance of his breach of trust. On his death there was found in his safe a policy of insurance on his life with an indorsement to Mrs. Hewitt on the back, and the following note to his executor: “Mr. Jones: Mr. Anderson holds a mortgage on Mrs. Hewitt’s place for less than $2,000. This policy is assigned to pay that mortgage off and cancel the same, as I am under obligations to do so. I had her money loaned out, and am bound to replace it. Alfred A. Clerke.” Held—This was a sufficient declaration of trust. Judgment for plaintiff. Hewitt v. The Provident Life Trust Co., Superior Court, Cincinnati, O., 18 Weekly Law Bulletin, 220.
If the assignment is capable of being construed as a declaration of trust by Clerke, the decision is clearly correct. But if the indorsement and words, “this policy is assigned,” simply mean that he has done everything necessary to transfer it to Mrs. Hewitt except deliver it, and expects the executor to do that, — if, in other words, the intention was to assign and not to declare a trust, the decision cannot be supported. It seems difficult to find, from the language used, an intention to hold as trustee.
A transfer of possession is necessary to make a conveyance of a policy of insurance in this country. Ames’ Cases on Trusts, p. 110, note.
A similar point was recently decided in Chancery Division, Re Richards, 57 L. T. Rep. 249. The testatrix signed a note, payable on demand to her servant, and handed it to her solicitor, telling him to give it to the servant if the latter should be in her service at her death. The servant, being in her service at the time of her death, claims the amount of the note from the estate. Held—That the solicitor was a trustee of the note; and payment was decreed.
If the solicitor were a trustee, he must have been such only of the piece of paper, not of the obligation, since that was payable to the servant. But the custody of a piece of paper with instructions to deliver it to a third party constitutes a simple case of bailment. There is no need of invoking the doctrine of a trust, even if it were possible from the language used, since the third party has an ample remedy as beneficiary of the contract of bailment. Apart from the grounds of the decision, it was plainly wrong on the authorities, for the reason that a promissory note delivered as a voluntary gift cannot be enforced.
Another case of trust is found in 5 S. W. Rep. 441, Templeton v. Brown (Tenn.). A husband gave his wife $40,000. Being afterwards in need of money, he borrowed $10,000 from her, and gave his promissory note. On her suing his administrator on the note, it was Held—That he, by the execution of the note, declared himself a trustee of the $10,000.
The wife, probably, had an equitable right (see 3 DeG., J., & S. 672; 108 U. S. 66; 130 Mass. 407; 51 N. Y. 395; 8 N. J. L. Journal, 358); but that it was a trust is plainly not the case.
Sterling v. Wilkinson, 3 S. E. Rep. 533 (Va.), is a better case. A person, now deceased, gave bonds to the defendant, to be delivered, in case of his death, to the widow and children. A receipt for additional bonds stated that the defendant was to hold them in trust for the depositor’s children. Held—That, on the intention gathered from all the circumstances, no trust was created, and, as the transaction was imperfect as a gift, from the fact that the testator had not parted with the control of the bonds, they were chargeable with the debts of the deceased.
Voluntary Conveyance—Marriage Settlement.—Freeholds belonging to a widower were conveyed by a marriage settlement to his children by a former marriage. He afterwards mortgaged the same property, and it was sold under