(dissenting). As I am of the opinion that the evidence in this case establishes the fact that Graham’s money paid for the Merrick property, and that Miller therefore held the legal title to the same in trust for Graham, I am unable to concur in the conclusions reached by my associates. On November 22, 1888, Miller wrote Graham: “I will close the $5,000 [deal] tomorrow, and draw for same.” This evidently refers to the Merrick property, as Mr. Coe, Mr. Miller’s confidential clerk, testifies that he knew of no other $5,000 property bought by Miller for Graham. On the 28th of the same month Mfiler wired Graham: “Have drawn for $5,000 account of Merrick property.” This draft was paid, and the proceeds were used by Miller for a year or more, but were ultimately applied, as I view the evidence, to the payment for the Merrick property, and the Merrick deed taken out ,of escrow, and recorded. The fact that Miller used the proceeds of the draft until the money was required to take from escrow the Merrick deed does not, in my view of the law, affect the nature of the transaction, so long as the money was in fact applied to the payment of the consideration for that property.
The fair inference from the evidence is, it seems to me, that Miller had negotiated for this property, and had taken a deed to himself in escrow, and then arranged with Graham to take the property, and pay for the same, but with the understanding that Miller should have a share in the profits for his services in purchasing and looking after the same, when the property should be disposed of by Graham. It seems also quite clear from the evidence that, owing to difficulties in perfecting the title and various delays, the escrow was not taken up until March, 1890, and that in the meantime Miller, who seems to have been a large operator, kept the money of Graham with his general account at the bank, and treated it as any other deposit, until he required the money to take the deed from escrow, when the Graham money, it seems to me, was used for that purpose. It does not occur to me that the fact *615that tbe proceeds of tbe Graham draft were retained and used by Miller for over a year in bis business affects the. question as to whose funds actually paid tbe consideration for tbe property. It will be noticed that tbe property was not paid for until tbe deed was taken from escrow, in March, 1890, except some small amounts to retain tbe deed in escrow; and then tbe balance of tbe #5,000 was drawn and paid upon the property. As I view tbe transaction, that payment was made with tbe Grabam money or proceeds of tbe Grabam draft. Suppose Miller bad sealed up tbe proceeds received from the Graham draft, and made a special deposit of it in some bank, until be was ready to take tbe Merrick deed from escrow, and then had opened and taken from the package this $5,000, and paid for tbe property; could there be any doubt that Graham’s money paid for tbe property, and that Miller would hold tbe legal title as trustee for Grabam? We apprehend not. Then, why would tbe fact that Miller kept tbe money with bis own on deposit, and used it, until be required it to pay for tbe property, make any difference? The money received by Miller, and credited to him on bis account at tbe Deadwood bank, on bis draft drawn on Grabam, was no more tbe identical money furnished by Gra-bam than the money be eventually paid for tbe property, in March, 1890. Miller bad in his hands, in contemplation of law, from November, 1888, to March, 1890, this $5,000 advanced by Graham to pay for this property; and, when be paid tbe $5,000 for tbe property, it was as much Graham’s money as though be bad paid it on tbe very day be received credit for it at tbe bank. This seems to me to be the proper view to take of this transaction. If I am correct, and tbe consideration for the property was in fact paid by Gra-bam or fox him, the case comes clearly within tbe provisions of Sec. 2796, Comp. Laws, copied in the opinion of tbe court.
Respondent contends that the contract between Miller and Grabam should have a controlling influence in determiningtbis case, and such seems to have been tbe view of my associates. *616But whether that contract was or was not executed so as to make it a binding contract in Miller’s lifetime, it does not seem to me to materially affect this case. By this contract, Miller distinctly admits that the property belonged to Graham, and the contract seems to have been drawn upon the theory that the legal title was actually vested in him. Undoubtedly, Miller expected, when the contract was prepared, that the Merrick deed would be taken out of escrow at once, and the title transferred by him to Graham. But, as we have seen, delays occurred in order to enable Merrick to perfect his titie, and the transaction was not closed up until March, 1890. Possibly, if the contract was in fact executed, Miller’s representatives may have a claim against Graham, when the property is finally disposed of for a share of the profits of the transaction, as was held by the supreme court of the United States, in constructing a similar contract in Seymour v. Freer, 8 Wall. 202. But that question is not involved in this case, as the issue under the pleadings is, was the $5,000 received by Miller from Graham applied to the payment of the Merrick property? I think it was, and that Miller held the naked title trust for Graham, and that Graham is entitled to a conveyance of the property. Holding this view, I am of the opinion that the judgment of the court below should be reversed.