Eustice v. Holmes

Citations

• 52 Miss. 305

Syllabus

<p>1. Trust SuND : Diversion. Case in judgment.</p> <p>C. borrowed from Mrs. H. $20,000, funds belonging to ber ward and daughter, and executed a deed in trust upon a plantation to secure its payment. After-wards C. and Mrs. H. adjusted the debt, by which O. conveyed to Mrs. H. the place and she surrendered his notes, and gave in addition her two notes of $5,000 each, secured by a vendor’s lien. The complainants, heirs of 0., filed their bill to forclose this lien, whereupon M., the only surviving heir of the ward, interposed his claim, setting forth the fact that the $20,000 loaned by Mrs. H. to O. was a trust fund belonging to his wife, the ward of Mrs. H., that said debt had never been extinguished, and that his claim was a superior equity, as against the land, to the vendor’s lien set up by the heirs of C. Held, that the transaction between Mrs. H. and C., by which «the latter’s notes were surrendered and conveyance of the land made to Mrs. H., was a diversion of a trust fund to the injury of the ward, in which O. participated, and does not operate to extinguish the debt; and a court of equity will treat it and the security as still subsisting and continuing for the benefit of the cestui que trust and those claiming under her.</p> <p>2. Nasr-JottíDEE of Parties.</p> <p>Objections for non-joinder will be considered waived unless urged before final hearing, unless the interest of the person not before the court be so complicated with the subject of the suit that justice cannot be done between the parties before the court.</p>