was to render such party an involuntary trustee as defined by § 3920, Comp. Laws.
2. Same; Plaintiff Charging Defendant as Trustee.
When it is alleged that said property, both real and personal, had been wrongfully sold by such trustee, and that the products raised on said farm by such trustee for a period of three years had also been wrongfully sold, and action is brought to recover the value of both the property and products, the plaintiff charges such party as trustee, and cannot be heard to say that the trust was never opened, or the trust relation active.
3. Same; Same; Plaintiff’s Remedy is in Equity.
Plaintiff's remedy in such case isin equity. No action can be maintained at law by the cestui que trust against the trustee while the trust remains open, unless the exact amount due the cestui que trust has been in some manner liquidated, and no act remains to be performed except payment.
(Opinion Filed April 1, 1890.)
APPEAL from district court, Cass county; Hon. William B. McConnell, Judge.
Action by John W. Jasper against Arthur H. Hazen, to recover the value of certain real estate, and of the products thereof, and of certain personal property of which plaintiff claimed to be the owner, and which it was alleged defendant wrongfully disposed of, and converted to his own use. Trial to a jury. Verdict and judgment for plaintiff. Motion for a new trial denied, and defendant appeals.
Messrs. Thomas & Davis, for Appellant: Redress for violation of trust, where the trust is still unsettled, is not obtainable by an action at law; citing Duval v. Craig, 2 Wheat. 45; Norton v. Ray, 139 Mass., 230. No action at law being maintainable, the complaint should have been dismissed; Supervisors v. Decker, 30 Wis., 624.
Messrs, Greene & Hildreth, for respondent, argued: That the pleadings and evidence showed that a trust relation was agreed upon between the parties, but was never opened; that every act of appellant was in violation of that agreement; that where the property of a cestui que trust is transferred by the trustee to a bona fide purchaser without notice of the rights of the cestui
