Tbe opinion of the court was delivered by
McIver, A. J.The facts of this case are so fully and clearly stated in the report of the referee, that it is only necessary to advert to the precise question raised by this appeal. The fundamental allegation upon which this appeal is based is, that funds used to make the cash payment on the land mortgaged, were trust funds. It was incumbent upon the appellant to establish this allegation by proof, and this he has wholly failed to do, while on the other hand the testimony adduced by the respondent goes falto show the contrary. The referee having found the fact to be that the funds so used were not trust funds, and such finding-having been confirmed by the decision of the Circuit judge, under the well-established rule of this court, it will be regarded as conclusive, unless it is without any evidence to sustain it, or is against the manifest weight of the evidence. So far from this being the ease, it is very obvious, from the most casual reading of the testimony, that the finding of the referee is fully supported by the evidence.
It is argued, however, that while there was no evidence introduced in the usual way to establish this essential allegation on *34the part of the appellant, yet that, inasmuch as such allegation was distinctly made in the answer of appellant, setting' up a counter claim, and not denied in the reply filed by the respondent, Cochran, it must be taken as admitted. This argument rests upon two assumptions. 1st. That the portion of the answer in which this allegation was made, sets up a counter claim. 2d. That such allegation is not properly denied in the reply. It may admit of very serious doubt whether such portion of the appellant’s answer can be regarded as setting up a counter claim.
It is manifest that the appellant could not have so intended it at the time the answer was prepared, for, after stating in the first five paragraphs the facts upon which he relied as constituting his defence, growing out of the assumption of the trust character of the funds used in making the cash payment on the land, he proceeds in the sixth paragraph to say: “ This defendant further alleges, by way of counter claim,” certain facts upon which he bases a charge of fraud, of which not a tittle of evidence was offered, and which was, therefore, very properly abandoned; and in the seventh paragraph he says: “ That as a further counter claim,” &c., setting up a misrepresentation in the quantity of the land sold, which was likewise abandoned. This mode of setting up defences was well calculated to induce the respondent, Cochran, to suppose that the appellant did not regard the allegations contained in the first five paragraphs of his answer as setting up a counter claim, for, when he sets up further defences of this character in the sixth and seventh paragraphs of his answer, he distinctly says that he sets up such defences by way of counter claim, plainly implying that his first defence was not of that character. Hence, we think that the appellant must be regarded as not intending the first five paragraphs of his answer as a counter claim, as, otherwise, the conclusion would be that he intended to mislead the respondeat. But as we are satisfied that, even though the defence set up in the first five paragraphs of the answer be regarded as a counter claim, the allegations upon which such defence rests are sufficiently denied by the reply, we deem it unnecessary to enter upon the inquiry whether such defence can properly be regarded as a counter claim.
The appellant, for the purpose of showing that the funds used *35in making the cash payment on the land were trust funds, relies also upon the fact that the land was conveyed to W. C. Barrett as trustee, and the mortgage given by him in that character. No •copy of the deed or mortgage is set out in the “case” presented here, but on the argument we were referred to thé “ case” presented on a former hearing of this cause, when it came up in one of its earlier stages as Ex parte John M. Machay, Jr.; In re W. G. Barrett, Trustee, v. James N. Gochran, where the deed and mortgage are set out. The deed was to W. C. Barrett, trustee of Mrs. Jane M. Mackay, and not to him as such trustee, and the mortgage was given in the same way. No trusts whatever are declared or recited, and under the usual rule the words “trustee, Ac.,” appended to Barrett’s name, might be regarded as mere descriptio personae. It is true that in that part of the mortgage where the condition of the bond is recited, these words are used: Conditioned for the payment of seven thousand six hundred and three dollars, out of the estate which may be held by me as such trustee,” Ac. These words, so far from going to show that any such trust estate previously existed, tend to show exactly the contrary. And, as was held by this court on the former hearing of this cause under the title above stated, it differs in this respect from the case of Mathews v. Heyward, 2 8. 0. 239. For even if the addition of the word “trustee” to the name of Barrett should be regarded as sufficient to create a trust, this would be no evidence of the previous existence of such trust, as it might then, for the first time, have been raised; and such would be the natural inference if, as in the case now before the court, there was no evidence that such trust had previously existed. This inference is strengthened by the words used in reciting the condition of the bond, which are quoted above; the words “ may be held,” implying thabno such estate was then held by the trustee.
The appellant having failed to establish the allegation upon which this whole appeal rests — in fact, having offered no evidence whatever to sustain it — can take nothing by his appeal.
The judgment of the Circuit Court is affirmed.
Judgment affirmed.
Willard, C. J., and Haskell, A. J., concurred.