Irvine v. Dunham

'This is to declare that I, William Irvine, of San Francisco, California, am the owner of one undivided half of that certain gold-bearing quartz lode or mine situated on Carson Hill, Calaveras county, California, and known familiarly as the 'Morgan mine,' and that I hold said half interest equally for myself and R. H. Sinton, also of San Francisco, share and share alike; and I hereby promise and bind myself, my heirs, and assigns, whenever said mine shall be sold or otherwise disposed of, to account fully and truly to said Sinton, his heirs, or assigns, for the one-half of all net proceeds of such sale or other disposition of said half interest. All necessary expenses, including counsel fees heretofore incurred, or that may hereafter be incurred, in and about the property, up to the time of such sale or other disposition thereof, to be first paid before division of such proceeds.

'Witness my hand and seal this twenty-eight day of March, A. D. 1874.

'WILLIAM IRVINE. [Seal.]

'Witnesses:

'T. K. WILSON.

'H. J. TILDEN.'

The bill also averred that on September 8, 1874, Sinton assigned and conveyed to one George P. Ihrie all his right and title in the mine and declaration of trust, and everything coming, or that might come, to him by virtue thereof; that on March 17, 1875, Irvine and t e owners of the other undivided half of the mine, organized, under the laws of California, a corporate body called the Morgan Mining Company; and that on April 9th following, Irvine and the other persons having an interest in the mine, except Ihrie, sold and conveyed the same to the corporation, and received in consideration thereof shares of stock in the company, in proportion to their interest in the property conveyed, Irvine receiving 10,000 shares for the undivided half held by him for himself, in trust and for Ihrie, as the grantee of Sinton, and that Ihrie then and there became entitled to the one-half of the 10,000 shares. It was further alleged that on June 29, 1875, Ihrie conveyed all his title and interest in the mine and in the 5,000 shares of the stock of the Morgan Mining Company, to Dunham, the complainant, for whose use and benefit Irvine held the shares subject to the payment of the expenses, etc., mentioned in the declaration of trust. The bill further alleged that after the conveyance by Ihrie of his interest in stock of the Morgan Mining Company to the complainant, the latter applied to Irvine for an account of the necessary expenses and fees incurred by him in and about the mine up to the conveyance thereof to the company, and offered to pay him one-half thereof, and demanded a transfer to himself of the shares of stock in the company held in trust for him by Irvine, but Irvine refused to render any account, denied the complainant's right to the stock, or any part of it, denied that he held any stock in trust for complainant, and claimed all of the 10,000 shares as his own, and denied that he was ever trustee in the premises for Sinton, or Ihrie, or the complainant. The bill further averred that the complainant was ready, and that he then offered, to pay into court the one-half of all the expenses and fees paid by Irvine, on account of the mine, up to the conveyance thereof to the Morgan Mining Company, and such further sums as the court might deem equitable and just; that Irvine had it in his power to transfer the stock held in trust by him for the complainant to a bona fide purchaser for value without notice, and that he would do so unless restrained by injunction. The prayer of the bill was that Irvine be decreed to hold in trust for the complainant said 5,000 shares of the capital stock; that the court would declare what sum was justly due to Irvine from the complainant, on account of the necessary expenses, etc., incurred by him in and about the mine, and that upon the payment of the same by complainant to Irvine, the latter might be decreed to assign and transfer said 5,000 shares to him.

The answer of Irvine denied that Sinton was ever the owner of an undivided fourth of said mine, or of any share or interest therein, or any part thereof; denied that Irvine ever held the legal title to the mine, or to any part or share thereof, in trust for himself and Sinton; denied that the undivided half thereof was acquired by himself and Sinton by their common efforts, and at their common expense, for their equal benefit, but averred that he acquired said undivided half for his own sole and exclusive use and benefit, and that Sinton contributed neither effort nor expense towards its acquisition. The answer further averred that Irvine, on March 28, 1874, being about to leave California for a trip to the Atlantic states, to be absent for several months, signed the declaration of trust as a mere gratuity to Sinton, upon the express agreement between him and Sinton that the same should be left in the custody of T. K. Wilson, who was Irvine's attorney, and that it was not to take effect except in case of the death of Irvine upon his proposed journey, and in case he should return to California that the instrument should be delivered up to him; that the instrument was never, in any manner, delivered to Sinton, and that Irvine, after so signing it, did perform his journey, and returned therefrom to the state of California in the month of ugust, 1874. The answer of Irvine was put at issue by general replication.

Upon final hearing the circuit court decreed that Irvine hold, as trustee, for the use and benefit of the complainant, the one-half of 9,997 shares of the capital stock of the Morgan Mining Company, the shares being the gross proceeds received by Irvine as the consideration of a conveyance and disposition by him to the Morgan Mining Company of one-half of the mining property, the half of the stocks so held by Irvine in trust for the complainant being subject to a claim of Irvine for one-half of all the necessary expenses referred to in the declaration of trust, and of assessments on said stock made by the Morgan Mining Company and paid by Irvine. And the court confirmed the report of the master to whom the case had been referred, finding that the one-half of the expenses and assessments paid by Irvine was $14,221.76; and decreed that, upon the payment of that sum by the complainant to Irvine, the latter should assign and transfer to the complainant 4,998 1/2 shares of the capital stock of the Morgan Mining Company. From this decree Irvine appealed.

''Jas. M. Johnston and Geo. W. Towle, Jr.'', for appellant.

S. Shellabarger and T. M. Wilson, for appellee.

WOODS, J.