quest, directed the jury to return a verdict for plaintiff, leaving them to find the value of the property and the damages, which the jury accordingly did. Counsel for appellant in their brief in this case say that the only point relied upon is the refusal of the court to permit the defendant to introduce the offered proof. As respondent has filed no brief, and made no appearance in this court, we have nothing to indicate to us, in the slightest degree, the ground upon which the court below based its decision. It does not appear that plaintiff made any objection, general or specific, to the proposed testimony. Defendant attempted to set forth facts in his answer which, if true, were a legal justification of his possession and detention of the property. We think those facts were sufficiently pleaded. Stanhope v. Swafford, 42 N. W. Rep. 450. At any rate, the answer was in no manner attacked by plaintiff. On the contrary, he joined issue, by reply, with the allegations of the answer under which defendant justified. Defendant had the burden of proof as to such allegations. The offered testimony certainly tended to prove these facts. It was not necessary, before such facts could be shown, that they should have appeared in the writs under which defendant justified. Rogers v. Brackett, 34 Minn. 279, 25 N. W. Rep. 601. It may be that defendant had levied upon property largely in excess of what he should have taken under his writs, but that question is not in this case. As this record is presented to us, we must reverse this case, and order a new trial. Reversed. All concur.
John W. Jasper, Plaintiff and Respondent, v. Arthur H. Hazen, Defendant and Appellant.
1. Trustee; Intent to Defraud; Involuntary Trustee.
When one receives a deed absolute in form, but intended as security only, and with a promise to reconvey upon payment, he becomes trustee for the grantor to the extent of grantor’s interest therein. Likewise, when one receives property as security only, and under a promise to return the same on certain contingencies, he becomes a trustee for the owner; and, if said promises were made with intent to defraud, and with no intent to fulfill, yet the only effect of such deception
