Chaves v. Myer

Citations

• 13 N.M. 368
• 85 P. 233

Syllabus

<p>SYLLABUS.</p> <p>1. The complaint examined and held sufficiently to allege that plaintiffs were the owners of the fund loaned by the defendant Myer to the defendants Lucero.</p> <p>2. Questions not presented to the court below in the proper way nor to this court by assignment of error are not the subjects of review by this court.</p> <p>3. The equitable remedy, given a cestui que trust to follow trust funds into property in which they may have been fraudulently invested by his trustee is not taken away by statutory provisions affording a remedy by attachment or garnishment, but the legal and equitable remedies are to be considered concurrent.</p> <p>4. Nor is such equitable remedy defeated by the fact that the cestui que trust might sue the trustee and his bondsmen and enforce his claim by levy, the rule being well settled that the defrauded party has his option either to -hold the trustee personally reliable, or to follow his money into the property in which it has been invested.</p> <p>5. Nor is the remedy of the defrauded cestui que trust to realize out of such property purchased with his funds affected by the fact that the agreement between the trustee and the owner of such property which led up to the diversion of such funds, was an illegal one, the cestui que trust having been no party to such agreement.</p>