Broder v. Conklin

Citations

• 121 Cal. 282
• 53 P. 699
• 1898 Cal. LEXIS 894

Syllabus

<p>Insolvency—Public Sale of Assets—Pübohase by Assignee’s Attobney— Tbust fob Cbeditobs—Conflicting Evidence.—Where the assignee of an insolvent debtor sold the property of the insolvent in bulk at public sale to his attorney, and the creditors sought by hill in equity to-establish both an express and a constructive trust on the part of the purchaser for their benefit, and the evidence in the action was conflicting as to the existence of an express trust, the purchaser testifying to-the contrary, the finding of fact that there was no express trust cannot he disturbed upon appeal for insufficiency of the evidence to support it, though the evidence may appear to preponderate against the truth of the finding. The question of substantial conflict is in no way dependent upon the greater number of witnesses on one side, and the limited number upon the other.</p> <p>Id.—Constbuctive Trust—Confidential Relation.—The creditors of the estate of the insolvent were beneficiaries of the trust fund in the hands of the assignee, who was the trustee, and the attorney of the trustee, as his agent, occupied the same confidential relation to the creditors as the assignee, and neither of them could purchase the property for himself, unless permitted to do so by all of the creditors, with full capacity of each to contract, and with full knowledge by each of the motives of the purchaser in making the purchase, and of all other facts concerning the transaction which might affect their decision, and without the use of any influence exerted upon them by him; and in the absence of proof of such a. state of facts, in respect to every creditor, the sale to the attorney for the assignee was void as to the creditors, and a constructive trust in their favor was fastened upon the property by operation of law.</p> <p>Id._Statute of Limitations.—The statute of limitations does not begin to-run against an express trust until repudiation thereof is brought to the knowledge of the beneficiary; but it