MURRAY v. RAY, 251 F. 866

GILBERT, Circuit Judge (after stating the facts as above). The appeal presents the question whether the evidence is sufficient to sustain the finding and the decree of the court below. The trust agreement which was set forth in the appellant's answer herein is but feebly supported by testimony.

The testimony of the appellant is thus reviewed in the opinion of the court below: “After stating that he had no particular agreement with the bankrupt at the time the properly was conveyed, and that there was nothing said about holding the title in trnst, only some general understanding, he was asked by his counsel the question, ‘At the time you conveyed, it (the property) to him (the bankrupt), did you have any understanding that he was to convey it to you, or to any one else you might designate?’ To which he replied, ‘No; no agreement.’ Then to the extremely leading question, ‘You had an oral agreement, did you not? he responded, ‘Yes, sir; I did not think we needed anything more.’ And upon cross-examination he stated that there was no distinct agreement, just a general understanding, lie does not testify as to what, if anything, he said, or what, if anything, the bankrupt said, nor does he explain how or why he got such a general understanding, or attempt to give any reason for having the transfer made by the Monidah Trust Company.” There was no other testimony on the subject, except that of James E.

Murray, a nephew of and attorney for the appellant, who testified that the appellant said: “He would convey the property to him (the bankrupt), and it should stand in Ms name; but, at any time he wanted the property reconveyed, he would expect him to do so.” It was shown that in 1906 the appellant purchased the property in controversy at sheriff’s sale, and caused the title to be taken in the name of E. L.

Chapman, who was his employé; that Chapman thereafter conveyed the same to the Monidah Trust, a corporation, of which substantially all the stock was owned by the appellant; that on January 5, 1912, at the appellant’s instance, the Monidah Trust conveyed the property to the bankrupt by a deed which was recorded on June 8, 1912; that on June 12, 1912, the bankrupt conveyed to George Winter an undivided one-half interest in the property, which interest Winter reconveyed to the bankrupt on December 29, 1914; and that on March 5, 1917, the bankrupt conveyed the property to the appellant.

Prior to the first conveyance to the bankrupt the appellant^ who owned the Pocatello waterworks, and conducted the same under the name of the Pocatello Water Company, was the defendant in a suit brought by the city of Pocatello to compel him to appoint two commissioners, under the provisions of

section 2839, Revised Codes of Idaho of 1909, to confer and act with two commissioners appointed by the city to fix and determine rates to be charged for water. City of Pocatello v. Murray, 21 Idaho, 180, 120 Pac. 812; Murray v. Pocatello, 226 U. S. 318, 33 Sup. Ct. 107, 57 L. Ed. 239; City of Pocatello v. Murray, 23 Idaho, 444, 130 Pac. 383, Ann. Cas. 1914C, 1050. To qualify one to act as a commissioner under the statute, it was necessary that he should be a taxpayer of the city.-' Winter and the bankrupt became taxpayers through the conveyance to them of the property in controversy.

The appellant made them his commissioners to act with the commissioners appointed by the city. The fact that .they were employés of the water company was held not to disqualify them. City of Pocatello v. Murray, 23 Idaho, 444, 130 Pac. 383, Ann. Cas. 1914C, 1050. The case in which that was held was a proceeding brought to require the appellant herein to show cause why he should not be punished for contempt for his failure and neglect to appoint commissioners, as required by a prior peremptory writ.

The appellant, in his answer to the order to show cause, alleged that Winter and the bankrupt were residents and taxpayers of the city of Pocatello, and that they were joint owners'in fee simple of the property so conveyed, and his answer was accompanied by the affidavit of the bankrupt, in which the latter stated that he owned an undivided one-half interest in the Auditorium property in fee simple, and that he had paid the taxes thereon assessed for the year 1912. A similar affidavit, made by Winter, accompanied the answer.

The court in that proceeding found that the facts so alleged in the answer were “clearly supported by the evidence.” The appellant points to the fact that the laws of Idaho contain no requirement that a taxpayer shall be the owner of a perfect, unincumbered title, or that he must be the owner of the equitable, as well as the legal1, estate. Conceding this to be true, it does not meet the situation which the case presents.

Here the appellant and the bankrupt have by answer and by affidavit deposed that the conveyance to the bankrupt was a grant of an estate in fee simple, an estate which is the highest known to the law, and which necessarily implies absolute dominion over the land. Coexistent with the fee-simple estate there could be no equitable estate. There was no evidence that the bankrupt ever agreed to convey the property to the appellant, or that he acknowledged that he was holding the same in trust for the appellant.

Such a construction of the' transaction is expressly negatived by the bankrupt’s affidavit in the suit in the state court, and the appellant’s answer to the contempt proceeding; and it is significant that the bankrupt’ was not called, to testify in the present case, and that no reason or excuse was offered for the appellant’s failure to call him as a witness. In view of all the evidence, we think the court below committed no error in finding that the conveyance to the bankrupt was a gift.

As the court said: “It still remains true that he gave the property to the bankrupt without any reservations, conditions, or qualifications. It is immaterial that he hoped" to get the property back. The giving of a gift, with the hope that the donee will at some time return it, or its value, does not operate to create a trust or charge the donee with a trusteeship. For his own purposes the defendant was under the necessity of making ah absolute transfer.

To have put the property in trust would have been futile.” The conveyance by the bankrupt to the appellant having been made without consideration and as a gift, it was voidable at the suit of the trustee in bankruptcy. The decree is affirmed.