187 N.W. 203 | S.D. | 1922
This action is brought to have the defendants Colombe declared trustees of certain lands in Charles Mix county for the 'benefit of plaintiff. The facts so far as material are: Christopher Colombe, husband of Emma Colombe, about March, 1919, entered into an oral agreement with plaintiff by which defendant C. Colombe agreed, for the payment to him of a reasonable commission, to act as plaintiff’s agent in the purchase of lands involved as soon as a patent in fee was received at the Indian agency at Greenwood. This land had been allotted to one Daniel Charging Whirlwind, a Yankton Sioux Indian. At that time plaintiff told Colombe that a patent in fee had been applied for by the Indian allottee, Whirlwind; that at said time Colombe, who is also an Indian, stated that he knew Whirlwind, and would use his efforts in procuring the land for plaintiff when the patent was received. At that time it was agreed and understood between Colombe and plaintiff that plaintiff should notify Colombe by telephone when the patent arrived at Greenwood, and that Colombe would immediately bring Whirlwind over to Dake Andes and close the purchase for plaintiff. Thereafter, and about April, 1919, Colombe brought Whirlwind to Lake Andes and telephoned plaintiff to come there to close up the deal; that he had Whirlwind there, and that he had taken a deed from Whirlwind running to plaintiff. When plaintiff arrived at Lake Andes he learned that the patent had not arrived, and the purchase of land could not then be completed. Thereafter, and on the suggestion of Colombe, plaintiff met him and Whirlwind at Tyndall, and on further suggestion of Colombe entered into a lease with Whirlwind for the land for a period of three years for a cash consideration of $300. Thereafter plaintiff entered into immediate possession of the lands. Before making the lease plaintiff received approval of the Indian agent. After this lease had been máde Colombe told plaintiff to notify him by telephone of the arrival of the patent, and he would immediately bring Whirlwind and close up the purchase of the land for plaintiff. Thereafter, about May 21, 1919, plaintiff notified Colombe that patent was at Greenwood, and Colombe promised to meet plaintiff at Lake Andes on Friday following, and that he would have with him Whirlwind for the purpose of «closing the land deal. Accordingly plaintiff met Colombe and
Appellant contends that between him and defendant Colombe there existed, at the time defendant Colombe procured from Whirlwind the deed for the land running to Colom'be’s wife, the confidential relation of principal and agent; that this relation was such that a conflict between defendant’s interest and his duty to plaintiff imputed to defendant Colombe constructive fraud. Morris v. Reigel, 19 S. D. 26, 101 N. W. 1086. Appellant urges that when defendant accepted the conditions of this agency he entered into a fiduciary relation with plaintiff in all matter pertaining to the subject of his agency. R. C. §§ 1194, 1195; R. C. § 1207.
“Everyone to whom property is transferred in violation of trust holds the same as -an involuntary trustee under such trust unless he purchased it in good faith and for a valuable consideration.”
The controlling question in this cáse is not whether the prim-■cipal advanced the purchase money, but it is whether in equity and good conscience the agent who in fact purchased the property with his own money in his own name, in violation of his agreement with his principal and in abuse of the confidence reposed in him •b}'- his principal, can be allowed to retain the fruits of his perfidy.
The soundness of this doctrine is attested by this court in Brookings Trust Co. v. Bertness, supra; Sanford v. Norris, 4 Abb. Dec. (N. Y.) 144; Wellford v. Chancellor, 5 Grat. (Va.) 39; Onson v. Cown, 22 Wis. 329; Snyder v. Wolford, 33 Minn. 175, 22 N. W. 255, 53 Am. Rep. 22. It is the universal policy of the law to hold a confidential agent to the highest degree of good faith. Boswell v. Cunningham, 32 Fla. 277, 13 South. 354, 21 L. R. A. 54. The Florida court says:
“Where an ag’ent employed to purchase for his principal purchases for himself, all the profits. and advantage gained in the transaction belong to the principal, and the agent will be' held to bave taken the property as trustee for the principal. Such a trust •comes within the exception provided for in the statute of frauds * * * as it arises out of the construction and operation of law, .•and may be established by parol”
1 Perry on Trusts, § 401:
“A trustee having accepted a trust cannot renounce it.; If any one undertakes an office for another he is bound to discharge his duties, and he cannot free himself from liabilities by mere renunciation He must be discharged by a court of equity, or by a special power in the instrument of trust, or by consent •of all parties interested in the estate if they are sui juris.”
It is urged in behalf of Colombe’s wife that she is an
It is urged by defendant Montgomery that his mortgage should be declared a valid first lien against the premises. This we deem doubtful, for the reason that his answer admits that he knew plaintiff had possession of the land at the time he took his mortgage. Such knowledge on his part^was sufficient to put -him on-inquiry which, if pursued would have revealed the true situation.
Erom the foregoing it is clear that the court erred in entering findings and judgment for defendants. The judgment and order appealed from are reversed, and a new trial granted.