Moore v. Marshall , 76 Me. 353 ( 1884 )

Walton, J.

This is an action for money had and received. It is before the law court on report, the court to render such; judgment as the law and the evidence require.

The facts are these: The plaintiff and the defendant were-owners in common of a parcel of real estate. The defendant conveyed his half to the plaintiff, taking therefor a note for one-thousand dollars. Both parties agree that this transaction,, though in form a sale, was not intended to be such in fact; that the understanding was that the defendant should continue to be-regarded as the real owner of one-half of the land as before the-conveyance, and that the plaintiff should not be required to pay the note. What the motive for this arrangement was, is not' clear, the plaintiff’s testimony tending to prove that it was for the purpose of placing the title beyond the reach of an unfriendly creditor, while the defendant testifies that it was to enable the-plaintiff to sell the land and give a good title to it without calling on him to sign the deed. But both parties agree that it was intended to be a sale in form only, and that the plaintiff' should not be required to pay the thousand dollar note which he had given as the nominal or pretended consideration for the-conveyance. Such being the condition of the title, and the-understanding of the parties, the plaintiff sold a portion of the-land for about fifteen hundred dollars, and of this sum the-defendant received between four and five hundred dollars. The defendant then, in violation of the understanding between, him and the plaintiff, sold the thousand dollar note, and the-plaintiff was compelled to pay it, principal and interest, to the-purchaser.

The plaintiff now claims that, inasmuch as the defendant has,, by his wrongful act, compelled him to pay for the defendant’s, half of the land, and the defendant has received his pay for it, the defendant is no longer entitled to retain the money (between four and five hundred dollars) which he received at the time [portions of the land were sold to other parties; and we think 'the plaintiff’s claim is well founded. The defendant received ••the money in the execution of a trust existing between him and The plaintiff. He has violated that trust, and thereby forfeited :his right to retain the money. And to allow him to retain it would in effect enable him to receive pay for a portion of his land twice. In equity and good conscience this money belongs to the plaintiff; and this is a proper form of action in which to ■.recover it.

Judgment for the plaintiff for ‡449.81, and interest from the time the money was received by the defendant to date of judgment.

Peters, C. J., Danforth, Virgin and Libbey, JJ., (concurred.