Woodard

This is an action brought by the plaintiff for a decree adjudging the defendant to be her trustee of the tract of land described in the complaint, and requiring him to execute a deed of conveyance to her. Plaintiff had judgment in the court below, and from that judgment, and an order denying a motion for a new trial, defendant has appealed.

Plaintiff averred in her complaint that the defendant undertook and assumed as her agent, and at her special instance and request, to purchase the land described in the complaint, and take a deed therefor in her name and for her benefit; but fraudulently, and without her knowledge or consent, on the nineteenth day of November, 1877, took a conveyance of the land in his own name and for his own benefit. The defendant admitted that the conveyance was taken in his own name, but ■ denied that it was in fraud of the plaintiff, or against her wish or consent, and averred that the plaintiff knew that the deed was taken in his own name, and that the same was taken at her solicitation and request. He further averred that of the purchase price paid $5,000 belonged to the plaintiff, and the balance thereof, namely, $832.50, was the money of the…

I concur in the judgment of reversal. I do not concur in the statement of Mr. Justice Paterson that the evidence showed a trust in the defendant. He was a mortgagee in possession, and was not entitled to all the credits given him in the foregoing opinion. But the plaintiff having claimed that the relation of trustee and cestui que trust existed between the parties, and the cause having been tried on that *209 theory in the court below, both parties agreeing that there was a trust, some of the items the court below refused to allow the defendant should have been allowed him. If the action had been brought to redeem, treating the deed held by the defendant as a mortgage, as I think should have been done, the conclusion reached by the court below would have been right.

Hearing in Bank denied.