
    RECOVERY FOR TRUST STOCK CONVERTED TO HIS OWN USE BY THE TRUSTEE.
    [Circuit Court of Hamilton County.]
    Mabel Howard Martin v. Austin Gunnison and Julia G. Porter.
    Decided, February 2, 1903.
    
      Attachment — Parties—Trust Stock Converted to His Own Use by the Trustee —Action on Contract.
    
    1. A petition which alleges that the plaintiff acquired by devise a one-half interest in certain stock held in trust, which stock was converted to his own use by the trustee, states a good cause of action against the trustee founded on contract.
    2. Where the plaintiff’s interest in the said stock was one-half, there is no defect of parties, because she sues without joining any one with her.
    3. The action being an contract, on attachment was properly issued under the allegations in the attachment proceedings.
    Swing, J.; Jelke, J., concurs.
   This ease is in this court on error. In the court of common pleas, a general demurrer to the petition was sustained, and the court' also dismissed an 'attachment which had previously been issued against the property of the defendant.

In brief the petition set out that' the defendant had in 1875 assigned to one Howe one hundred shares of stock of a railroad company in trust for the use of the mother of the plaintiff during her life, and after her death to be divided between the children surviving her; that the mother had died leaving the plaintiff and a sister, her only children surviving; that the defendant had been appointed trustee in succession to said Howe, and had taken possession of said one hundred shares of stock as said trustee; that he had received six per cent, interest annually on said stock for several years, and had converted both interest and the said stock to his own use; and she prayed judgment against said defendant for one-half of the value of said stock and interest.

Theodore Rorstman, for plaintiff in error.

Joseph Cox, Jr., contra.

In our opinion the petition states a good cause of action, and that while defendant was guilty of a wrong in converting to his own use the stock which he had agreed to hold in trust for the plaintiff, still the right of action of plaintiff against the defendant was founded on the implied promise of the defendant to pay over to the plaintiff the stock which he had agreed to hold in trust, and while the action sounds in tort, it rests in contract. There was no defect in parties plaintiff. The portion belonging t'o plaintiff had been fixed — it was one-half — and the whole was to be divided, and her portion given to her. Her only interest was in the one-half, and no other person had any interest with her in this one-half, and the action was rightfully brought by her without joining anyone with her. The action being on a contract, an attachment was properly issued under the allegations in the attachment proceedings. When defendant filed his answer, he entered his appearance to the action as effectually as if he had been served with summons; and the statement that he did so only for the purpose of filing the demurrer amounted to nothing.

The court erred in sustaining the demurrer and dismissing the attachment, and the judgment will be reversed for these reasons, and the cause remanded for further proceedings.  