| Ill. | Apr 15, 1863
delivered the opinion of the Court:
The question presented by this record is, what relation did the defendant McCagg sustain to the complainants, and in what capacity did he interfere with the property in question. Can he be regarded, under the evidence, as agent or attorney, either employed by them, or a volunteer in their behalf? The solution of this question determines the controversy.
It is charged in the bill, that McCagg was informed by Yalliquette, one of the heirs, through his wife, of Oliver Dennis, deceased, the owner of the land by title bond, and who was an employee of J. Young Scammon, the law partner of McCagg, of the decree then existing against the heirs of Dennis, and was requested to advance the money to pay off the decree, and hold the land as security until he should be reimbursed principal and interest and expenses.
McCagg admits, in his answer, that Yalliquette did advise him of the decree, and asked him for a loan of money to discharge it, but denies that he desired to borrow it on the security of the mortgaged land, but that Yalliquette wished to borrow it on his own credit. He admits that Yalliquette spoke to 1dm more than once about the decree, and he told him that he was inclined to lend him the money, and would examine and see about the decree; that he was disposed to help Yalliquette if he could do so safely, but denies that he ever told Yalliquette he would loan him the money on the security of this land. He also denies having told Yalliquette that he had deposited the money, under the decree, or would deposit it, with the clerk.
These denials are not contradicted by any proof, and to that extent disprove the allegations in the bill, as to those facts, but they establish the fact that McOagg was incited to inquire into, the decree, and into the case, by one of the parties then interested in it, who was ostensibly acting for the other parties in interest, the complainants herein.
The testimony of Mr. Kimball, who was clerk of the court in which the decree was rendered, shows that within the thirty days limited by the decree for the payment of the money, the defendant McOagg was at the office, and made inquiries in relation to the payment of the money under the decree. Knowing that Mr. McOagg was not one of the parties to the suit, and was not engaged in it as solicitor, the clerk asked him what he had to do with it, and he told the clerk that he wished to protect the interest of Mrs. Dennis and the heirs, and wished to pay the amount of money decreed to be paid, some seven hundred and odd dollars. The clerk told him he had better go to Mr. Cornell, who was the complainant in the foreclosure suit, and settle the matter with him. The clerk’s impression is, that Mr. McOagg brought the money with him, in coin, in a handkerchief, but did not leave it; was in the office but a few minutes. He did not state the names of any parties except that he wished to protect the interests of Mrs.' Dennis and the heirs. This was but a very short time before the time for redemption expired.
The decree was entered April 6, 1852, and the time expired on the 6th of May, 1852.
Here is shown an unequivocal act of agency by McOagg, whether by actual employment by the parties interested or as a volunteer, can make no difference as to his responsibilities growing out of that relation. The presumption is a very strong, and a very natural one, that he was thus acting in consequence of the suggestions and by request of Valliquette, with whom, he admits, he had more than one conversation on the subject of the decree. If McCagg was not employed as an agent to investigate the case and to ascertain the rights of these complainants, he voluntary assumed to do so, and so represented himself to the clerk. He assumed a position of trust and confidence, and that relation imposed upon him the observance of the highest morality and integrity. He went to the office at the proper time, to protect the interests of Mrs. Dennis and the heirs, and under no other pretext, and for no other avowed purpose, and that could only be done, consistent with a high morality, by paying the redemption money, and holding the land thus redeemed, as security for his advances. It is evident, from the statements of the bill, and admissions of the answer, that a confidence was reposed in McCagg, that he would conduct this business for the benefit of the parties interested, the heirs of Dennis, and not for his own benefit. This would be an abuse of the confidence reposed, and it is this which courts of equity seize hold of, and rely upon, when they grant relief, in cases of this kind. How, as to his further conduct in the matter. When advised by the clerk, that he had better see Cornell, and settle the matter with him, he has an interview with that gentleman, who had been apprized by a letter from Mr. Barron, his partner, of the date of April 22, 1852, of movements in regard to the land. Mr. Barron wrote Cornell, under that date as follows: “I am afraid you will lose your Dennis land. Mr. E. B. McCagg has this morning called to see you, and said he intended to redeem it. He said that Judge Skinner told him that 30 days were given from the 13th of April, to do so. The decree gives 30 days. * * * * * Tour only resource is to buy out the heirs if you can, and it must be done quick, or McCagg will be before you.”
Cornell returned to Chicago in two or three days after the date of this letter, and consulted Mr. Barron. That gentleman told him that McCagg had been there, and had the money, and that he would probably find it in Mr. Kimball’s office, and he concluded to go and get it. When there, Kimball told him that Mr. McOagg had been there with the money, and that he had better see McCagg. He then went to McCagg and told McCagg he, McCagg, had caught him in a trap, and offered to divide the profits with him, and would give him the benefit of his decree. McCagg said he would consult Mr. Scammon about it, and let Cornell know in two or three days. In the course of a few days they again met, and McCagg stated he had concluded not to do so (divide the profits), giving as a reason why, that Mi’. Scammon wanted to benefit Valliquette, a protege of his. McCagg stated he had been interested ’in the matter, through Mr. Scammon, who was acting for, or was trying to protect Valliquette, his ward; he thinks McCagg said something of this kind at each interview. By these pretenses, Cornell surrendered the’ land ■ to McCagg, receiving some fifty or eighty dollars more than the amount of the decree, for his deed, supposing, as he says, it was to aid Valliquette, Seammon’s protege / he (McCagg). said so at the time.
The first check for four hundred dollars, drawn by Scammon & McCagg, and payable to Cornell, is dated May 10,1852, and Cornell’s deed bears the same date; but yet, the evidence is quite satisfactory that the contract was made before the time of redemption had expired. McCagg, in his answer, avers that the time of redemption had expired when he made the arrangement with Cornell, and thereby the heirs" of Dennis had lost all interest in the premises. The decree was passed April 6tli, and thirty days allowed from that date, within which to redeem, yet Barron wrote Cornell that McCagg informed him the judge of the court had told him that the parties had thirty days from the 13th of April, for that purpose. How, it may be that these parties were contracting with that day in view, yet it is not improbable that some mistake in the date of the cheek and of the deed, has been made, for Cornell says, in two or three days after the date of Barron’s letter, he was at his office in Chicago, and consulted about this matter. This would bring the time to the 25th of April. “ In a few days ” after this, he had the interview with McCagg, and as five days or ten days are but “ a few days,” this interview must have taken place on or before the fifth day of May, one day before the time of redemption expired. This must be so from Cornell’s testimony, for he gives us distinctly to understand that he made the arrangement with McCagg, under the pressure of the decree; that he considered himself obliged to receive the money under the decree. If it were not so, is it reasonable to suppose, the time of redemption having expired, that he would have accepted eight hundred and seventy-seven dollars for his right to property, which could not be impeached, worth fifteen hundred dollars. This is not reasonable or probable. Had Cornell supposed the time of redemption had expired, he would never have accepted that sum for property he estimated to be worth, at that very time, nearly twice as much. He states distinctly, he should not have sold the land, at the price he received, if he had not considered himself compelled to take the money. But we think it immaterial whether the time of redemption had or not expired. If McCagg was acting for the complainants, they are as fully entitled to the benefit of his acts, no matter whether he secured the land after or before the expiration of the time of redemption. The conveyance made by him to McCagg, instead of being made directly to the complainants here, is explained by him, that he supposed the conveyance was to aid Yalliquette, Mr. Scammon’s protege, and that McCagg told him so at the time. Here then, is the most abundant proof of the relation in which McCagg stood to these parties, as a confidential agent, intrusted with the conduct of business, claiming, the highest exhibition of morality and integrity ; a volunteer, if you please, but still professing to act not for himself, but for others who had placed their confidence in him. In equity he was disabled from dealing m the matter of Ms agency, on his own account, 1 Leading Cases in Eq. ( White v. Tudor's) 75, and the agency being established, he will be compelled to transfer the benefit of his contract, although he may swear he purchased on his own account. 1 Sug. on Vend., 51.
We have no hesitation in saying, that McCagg occupied such a position toward the parties, as to forbid him turning to his own advantage any of the accidents of the case he had undertaken to manage and conduct. The policy of the law, from its earliest records, has been to set its face most sternly against such conduct, and to deprive a party from reaping the least benefit from its results. The rule is well established, that trustees and others, sustaining a fiduciary and confidential relation, cannot deal on their own account with the thing or the persons falling within that trust or relationship. This rule is applied to all persons in whom there is a trust and confidence reposed, which would bring in conflict the interest of the trustee and eesimñ que trust. Davoue v. Fanning, 2 Johns. Ch. 261. The temptation of self interest is too powerful and insinuating to be trusted; and it must be removed by taking away the right to hold the property purchased. Thorp et al. v. McCullum et al., 1 Gilm. 626; Switzer et al. v. Skiles et al., 3 id. 529.
Where, as in this case, there is a voluntary assumption of an agency, the rule is the same, and is elaborately discussed and explained in the case of Casey v. Casey, 14 Ill. 112" date_filed="1852-12-15" court="Ill." case_name="Casey v. Casey">14 Ill. 112, to which reference is made, in support of the view we have taken of this case. The payment of this money by McCagg we must hold, under the proofs in the record, was in virtue of his assumed agency, and for the benefit of the complainants, whose trustee he made himself. There can be no escape from-this conclusion.
The subsequent purchase from the complainants, or a part of them, by McCagg, of the land in controversy, was made of them in ignorance of their rights, and which had become perfect by the payment of the decree, and of which the knowledge was concealed. They have never, with a knowledge of then* rights, which McCagg alone possessed, parted with their interest in this property, and they must be restored to it. Such is the dictate of justice and equity. It is insisted by McCagg, that they had no rights to this land, or any equity in it, as time was of the essence of their contract, and they had forfeited the contract by non-performance. . This might have been so, but when they were impleaded by Cornell in chaneery, they were rehabilitated to all their rights, and time given them, by a decree of the court, to perform the contract which had not expired, when McCagg, as their agent, interfered for them and completely reinstated them.
His purchase from them, without informing them of the payment of the redemption money, was a suppression of a fact they were entitled to know from him, and which, if known, it is not at all probable they would have accepted the trifling sum paid them. The very fact of his purchase from them, if he believed he had purchased the entire right from Cornell, as he claims he did, bears upon its face a bad appearance. Why should he take the trouble to hunt up these heirs, separated as they were, procure deeds from them, and pay them money, when all their rights had been forfeited, and his own title was perfect by the purchase from Cornell? Was it, could it be, a genuine impulse which prompted him, or may it not, most reasonably, be referred to the fact that they were poor and _ ignorant, and would never, probably, cause the transaction to be overhauled, and get the knowledge that they were reinstated in their rights by the payment of the redemption money ?
As to the other defendants, who are innocent purchasers of this land, without notice of any equities or claims of complainants, and who have paid a valuable consideration therefor, they must be secure in their title, and cannot be disturbed by any decree we can pass; but it is in our power to compel the principal defendant, McCagg, to indemnify the complainants for the loss and injury they have sustained by his having placed the title beyond their reach, either by requiring him to pay over the purchase-money he received for the land, with interest thereon, or the present value of the land, as may seem most equitable. To enable this to be done, it becomes necessary a reference should be made to the master in chancery, to ascertain the facts, and for this purpose the decree is reversed, and the suit remanded to the Circuit Court, with instructions to enter a decree for complainants, and for farther proceedings consistent with this opinion.
Decree reversed.