The plaintiff received the whole sum of $2,000, as trustee, for the use of the defendant and himself. By the agreement, it was all to be invested in land in the names and for the joint benefit of both parties. The plaintiff could derive no benefit to himself alone. Whatever benefits he received he was bound to share with the defendant. The statement in the contract, that the money was to be used in locating government lands at government price, cannot be regarded as anything more than fixing the limit beyond which the plaintiff should not go in paying for them. If he had purchased them for twenty-five cents per acre, the plaintiff would not have had the right to retain the balance after purchasing the number of acres which the money put into his hands would pay for at the government price. According to the agreement, the whole of the $2,000 should have been invested in lands in the joint names of both. Instead of this, the plaintiff invested $200 in lands in his own name; but this did not make the lands so located exclusively his own. He held the title to them, as he did the money, in trust for the joint benefit of both parties, and the defendant, if he had so elected, would be entitled to one half the proceeds and avails of the same; but he has not; — on the contrary, he has elected to recover the money, and this he may do.
He may also recover the interest on the $1,800 invested in the lands. The true construction of the contract on this point is, that the interest is payable annually, that is, at the end of each year. It is like a note where the interest is payable annually. The payee may call for it at the end of each year. The plaintiff agreed to pay five per cent. on the $2,000 annually, not from the proceeds of the land, but from his own funds. When the lands are sold, the amount paid for them is to be first deducted, and the balance equally divided. The plaintiff is chargeable with the $200 paid by *Page 229 him for lands located in his own name, and six per cent. interest thereon, and should not be charged with five per cent. interest on more than he paid for lands located on joint account.
Case discharged.
ALLEN, J., did not sit: the others concurred.