Page:North Dakota Reports (vol. 1).pdf/105

 self from proceeds of crop. Defendant was also to have a reasonable sum for services. The learned counsel for respondent contend with much earnestness that this presents a case where one, for the purpose of getting property in his possession, fraudulently pretended to assume the position of trustee, and that, having obtained possession of the property, he proceeded to carry out his original fraudulent design, and wrongfully and unlawfully converted the property, and that an action at law will lie as for deceit. The point is not free from difficulty, and is somewhat involved on authority. While plaintiff asks a money judgment only, yet his whole complaint is based upon an accounting; and it is plain no recovery can be had without such accounting. If the deed, absolute on its face, was in fact held by defendant as security, plaintiff had the right to establish such fact by parol, and the fact once established made defendant a trustee; and the fact that defendant acted in bad faith or fraudulently in inducing plaintiff to leave the deed in his hands, instead of defeating such trusteeship, would, in and of itself, constitute defendant a trustee. § 3920 Comp. Laws. Likewise as to the personalty. If defendant received the same under the agreement, as plaintiff alleges it was made, then clearly he was a voluntary trustee, under § 3912, id. If, on the other hand, defendant’s object was to defraud, then he became an involuntary trustee under said § 3920. Under any theory of plaintiff's complaint or proofs, defendant held the property both real, and personal, in trust. By seeking to recover the net value of the products raised on the farm for three years by defendant, plaintiff insists on holding defendant to the duties and responsibilities of a trustee. Plaintiff's testimony also shows that defendant advanced money for his benefit, and agreed to pay off incumbrances. Plaintiff is not, therefore, in a position to say that the trust never was opened, or the trust relation active. A trustee is held to the utmost good faith in all dealings with the trust property. He is bound to the cestui que trust for the payment of every farthing properly due, as proceeds or products of trust property; and a trustee ex maleficio, which is simply the involuntary trustee of our Code, is not different in this respect.