Opinion
11-18-1885
GILMORE v. TUTTLE, Trustee, etc.
J. W. Taylor, for the exceptions. R. Wayne Parker, contra.
Bill for relief. On exceptions to master's report.
J. W. Taylor, for the exceptions.
R. Wayne Parker, contra.
RUNYON, Ch. By the decree made in this cause on the twenty-ninth of May, 1880, it was adjudged that the trustee was accountable in equity, not only for the moneys actually received by him, but also for the value of the lands conveyed by him as mentioned in the ninth paragraph of the bill; that value to be reckoned at what the lauds were worth at the time of such conveyance, with interest thereon from that time. He did not secure proper payments for those lands, but accepted therefor the second mortgages taken by him, which proved worthless. It was also ordered that it be referred to a special master to take and state the accounts of the trustee, and that the master charge the trustee in the account with the value of the lands, and interest according to that adjudication. The lands referred to were lots sold and conveyed by the trustee to Amelia B. Gilmore by three deeds, one dated May 15, 1871, for lots numbered from 14 to 22, including both of those numbers; another dated August 28, 1871, for lot number 23; and the third, also of that date, for lots numbered from 2 to 11, including both of those numbers. The consideration mentioned in the first-mentioned deed was $6,472.76. On account and as part of that price, the trustee obtained a house and lot for the complainant, $3,700 of the cost of which were paid out of that consideration, and he also received a good mortgage of $1,000. The rest of the price was lost through the default of the trustee.
The master by his report, which is dated October 18, 1880, charged the trustee with the sum of $5,490 as the value of the lots conveyed by the last mentioned deed at. the time of its date, May 15, 1871, instead of the amount ($6,472.76) mentioned in the deed as the consideration, and credited him with the $3,700 and $1,000, and, as the result, charged him with the balance, $790. He also charged him with $550 for the value of the lot conveyed by the first-mentioned deed of August 28, J.871, and $7,700 for the value of the property conveyed by the other deed. These valuations were those which were given by Aaron Quimby, a witness before the master. The master adopted the valuations of this witness as to all the property in question. They amounted altogether to $13,740. The report was, upon exceptions, confirmed on this point. The cause went up, on appeal, to the court of errors and appeals, which reversed that part of the decree of this court which established the valuations of the master, and adopted instead thereof the valuations of William B. Smith, another witness before the master. By its decree, dated April 17, 1883, it adjudged that the value of the lands in question, at the time of the conveyance thereof, was $5,332, and that the trustee should be charged in his account with that sum as the value of the lands at that time, instead of the sum of $13,740, and that the decree of this court, to the extent that the same charged, or was based upon charging, against the trustee more than the sum of $5,332 as the value of the lands at the time they were conveyed, be reversed. That decree was made the decree of this court, and another order of reference was made in this court, September 25, 1883. Under the latter order the master has restatedthe account, in accordance with the directions of the decree of the court of errors and appeals, as he understands them. As to the conveyance of May, 1871, he charges the trustee with nothing, seeing that the trustee received for it $4,700, (in the house and lot and mortgage;) and the valuation according to Smith's estimate, would not be more but less than that sum, viz., $2,682. He charges him with the value of the other properties (conveyed by the deeds of August, 1871) according to Smith's estimate.
The trustee excepted to the report, on the ground that, by the decree of the court of errors and appeals, the valuation of the whole of the property, including that conveyed in May, 1871, was to be according to the estimate adopted and fixed by that court, and his counsel insists that the proper way to state the account under that decree is to charge the trustee with the values according to that estimate, and credit him with the $4,700. It will be seen that this method would charge the trustee with only $2,682 for the price of the property, for which he actually realized $4,700, and would give him credit, on the valuation chargeable against him for the properties conveyed in August, for $2,018 of the purchase money actually received for the property conveyed in May.
I am satisfied that the court of errors and appeals did not intend that the account should be so stated, and, unless the decree is so clear and positive in its directions to state the account in that way as to leave no room for discretion in following those directions, I must approve of the method pursued by the master. It is obviously the duty of this court to pursue the directions of the appellate tribunal, and it has no right to depart from them. It is laid down that when the house of lords makes an order containing declarations as to the rights of parties, and remits the cause to the court below, with directions, it is not competent for the court below, upon the same state of evidence, to give any judgment inconsistent with the declarations and directions of the house of lords. Macqueen, 222; McNeill v. Cahill, 2 Bligh, (N. S.) 316. But in the case in hand the question is, what are the directions which the appellate tribunal has given? The decree declares that the value of the lands was $5,332, and that the trustee should be charged with that sum as the value thereof, instead of $13,740 with which he was charged; and that the decree of this court, "to the extent that the same charges, or is based upon charging, against him more than the sum of $5,332 as the value of the lands at the time they were conveyed," be reversed. The charges to which it has reference are those made against him in respect to lands which he conveyed, and the price of which has, through his fault, been wholly or partially lost, and the price fixed by the court of errors and appeals is a measure of damages for the consequences of that fault, and the direction of that court is that he be charged with such damages at a different and much lower rate than that adopted by this court. The master in his report had charged him with $790 for the difference between the value of the land conveyed in May and the $4,700 received on account of that price. The appellate court adjudged (in substance) that that charge, which was based upon the Quimby estimate, was erroneousto the extent of the $790, and that, as to the land conveyed by the other conveyances, the charges were erroneous to the extent of the difference between them and the Smith estimate. The question is whether this court is bound, in the execution of the decree, to regard the directions of the decree as absolute, and to be followed implicitly and literally, without any manner of discrimination, or whether they are to be regarded as directions to guide this court in establishing the trustee's liability. I have no doubt that the latter is the true view. The exception under consideration will therefore be overruled.
The trustee also excepts upon the ground that the master has not allowed him commissions. This objection is well taken. The exception will be allowed.
No other exception besides the two above considered was insisted upon at the hearing. There will be no costs of the exceptions awarded to either side.