73 Miss. 787 | Miss. | 1896
Lead Opinion
delivered the opinion of the court.
The appellant, as administrator of the 'estate of Mrs. Prances A. Jeffries, exhibited his bill against the appellee, asking to be subrogated to the security of a certain deed of trust executed by
The facts, chronologically stated, are as follows: In the year 1885, Patty sold to Hill a small tract of land, at the price of $450, for which he accepted the notes of Hill, payable at stated future times. On the eighteenth day of January, 1889, Hill, not having paid any part of the purchase price of said land, executed a deed of trust to Patty to secure the same. On the same day, Patty, acting as the agent of one Mrs. Gaston, loaned to Hill the sum of $264, and received from him, to secure its payment, a deed of trust on certain personal property. On the first day of January, 1890, Patty had in his hands, as the agent of Mrs. Jeffries, a sum of money which she had intrusted to him to lend, or otherwise invest, for her account. Hill had paid no part of the purchase price of the land, and not much of the amount due by him to Mrs. Gaston, and she desired to have the balance due her paid by him. Patty, acting for himself and Mrs. Gaston and Mrs. Jeffries, accepted from Hill his note for $650, payable to Mrs. Jeffries, in payment of the debt owing to him for the purchase money of the land, and in payment of the balance due to Mrs. Gaston. He delivered up to Hill the notes by which these debts were evidenced, and canceled the deeds of trust by which said notes had been secured, and accepted from Hill a deed of trust, upon the land and personalty, to secure the note then executed by him to Mrs. Jeffries. This note and deed Patty retained in his possession until his death, which occurred in December, 1890. Mrs. Jeffries died in August, 1890, not having been advised by Patty of the fact that he had made the investment of her money. After the death of Patty, the note and deed of trust were delivered by his representative to the administrator of Mrs. Jeffries. Hill had made some small payments to Patty on the note, and also paid two or three, small sums to the administrator of Mrs. Jef
It is said by counsel that the chancellor was controlled in his decision by the case of Howell v. Bush, 54 Miss., 437. In that case Howell, who owned an incumbered homestead, borrowed the money from Bush to pay off the debt, agreeing to give as security a deed of trust on the property. This deed he executed, but there, as here, the wife did not join in the deed, and Bush sought subrogation to the rights of the incumbrancer, whose debt the money he loaned had paid. The court held that, since Bush had carved out and selected his own security, and had canceled, and intended to cancel, the original incumbrance, and since neither fraud nor mistake of fact was alleged or proved, the original incumbrance could not be revived for his protection.
If Mrs. Jeffreys had loaned the money to Hill and taken the invalid security, the case of Howell v. Bush would have controlled. The reason of that case, however, was that the lender had carved out his own security, which failed of effect because of a mistake of law. It does not decide that there can be no subrogation, in any event, to a security which was discharged,
In the administration of relief by subrogation it will be found that the jurisdiction of equity rests largely upon the prevention of frauds and relief against mistakes, and the expansion of the rule has so nearly covered the field that it may now be said that wherever a court of equity will relieve against a transaction, it will do so by the remedy of subrogation if that be the most efficient and complete that can be afforded.
We* are of opinion that the complainant was and is entitled to the relief prayed in this cause, for the reason that the arrangement made between Patty, the agent of Mrs. Jeffries, and the defendant was one which Patty had no right to make, and because the defendant, by the very nature of the transaction, was bound to know, and did know, that the agent was, while professing to act for Mrs. Jeffries, directly interested in the negotiation, and could, therefore, only bind his principal by her consent, she being fully informed of what he was doing or had done. We need not cite authorities for the proposition that the agent must be loyal to his principal, and, like all other fiduciaries, is forbidden to make a profit by a breach of trust. An agent employed to sell cannot be a buyer, nor one employed to buy be a seller in the matters intrusted to him by his principal. Wharton on Agency, §§232, 239, 594, 760. “Where an agent, without knowledge of his principal, becomes engaged in an adverse interest, he is guilty of a gross breach of trust, making himself personally liable to his principal for the damage, and vitiating, at his, principal’s election, any contract made
In Ex parte James, 8 Ves., 337, Lord Eldon said that “the doctrine as to purchasers, assignees and persons having a confidential character, stands much more upion general principles than upon the circumstances of any individual case. It rests upon this: that the purchase is not permitted in any case, however honest the circumstances, the general interests of justice requiring it to be destroyed in every instance, as no court is equal to the examination and ascertainment of the truth in much the greater number of cases. ’ ’
The fact is apparent that in making the loan to Hill, Patty, the agent, was acting in a matter in which his interests were adverse to those of Mrs. Jeffries. He had sold the land to Hill years before, and no part of the purchase price had been paid. It is not unreasonable to assume that it was not to him a desirable investment of bis own funds, and that he took advantage of the opportunity afforded by the circumstance of having Mrs. Jeffries’ money in his hands to transfer his claim against a slow debtor to his principal. Whether this be true, however, is immaterial, for Mrs. Jeffries was entitled to the exercise of his j udgment, uninfluenced by bis personal interests, in making loans of her money, and this she did not have. Whether the investment in the particular case would have been a desirable one if the deed had been executed by both Hill and his wife, is not the question. That would be the “circumstance,” as Lord Eldon puts it, of the particular case. But the rule, as he says, rests, not upon the particular case, but upon general principles. The disqualification to make the arrangement, and thereby bind Mrs. Jeffries, arose from the fact that, in so doing, he was acting for-her and for himself.
Nor can it be doubted that Hill knew precisely what was being done — that Patty was to retain the money of "his princi
In the case of Panama Co. v. India Rubber Co., supra, the complainant had contracted with the defendant company to lay a submarine cable, payments to be made, as the work progressed, upon the estimates and certificates of Sir C. T. Bright, the complainant’s engineer. After the contract had been made, the defendant made a contract with Bright- to lay the cable. The complainant had paid to the defendant company £60,000 on the contract, when it discovered that its engineer had entered into the contract with the defendant, and thereupon exhibited its bill for cancellation of the contract and to recover the sum it had paid. Pull relief was afforded, the court holding that any surreptitious dealing between one principal and the agent of the other principal, is a fraud on such other principal, cognizable in equity. James, L. J., said: “That I take to be a clear proposition, and I take it, according to my view, to be equally clear that the defrauded principal, if he comes in time, is entitled, at his option, to have the contract rescinded, or, if he elects not to have it .rescinded, to have such other adequate relief as the court may think right to give him.”
In that case, as in this, the fraud- upon the principal did not consist in an actual purpose to cheat the principal. In that case the fault was in dealing with the agent in such manner as
So much of the decree as denies to complainant the right of subrogation is reversed, and a decree may be entered here directing a sale of the property described in complainant’s bill for- the amount agreed to be due and all costs.
So ordered.
Dissenting Opinion
dissenting.
In addition to the facts set out by my Brother Cooper, I deem it important, to a proper understanding of this case, that certain other facts, shown by this record, and fully set out in the very clear and fair abstract of the case made by the learned counsel for appellant, should be stated. In the opinion of the
About the first of January, 1890, Patty had Hill to execute a note to Mrs. Jeffries for $650, and a trust deed to secure it, in which, as usual between Patty and Hill, Hill’s wife did not join. This sum was to pay Patty the balance of the purchase money on the land, and Mrs. Gaston a loan due her by Hill, Patty having also acted as the agent of Mrs. Gaston. Patty is dead and Hill did not testify, so that what took place between them is unknown. This sum of money ($650) was not actually, it seems, handed by Patty to Hill, and then handed back by Hill to Patty, as the agent of the two lenders — Mrs. Jeffries and Mrs. Gaston — but the transaction, so far as this record discloses, was, in effect, nothing but a mere loan by Patty to Hill, as agent of Mrs. Jeffries, and a payment out of that loan, by Hill to Patty, as such agent, of the unpaid purchase money of the land, and the debt due Mrs. Gaston. The actual manual handing back and forth of the money would have been a perfectly idle ceremony. The notes and trust deeds, executed by Hill to secure Patty and Mrs. Gaston, were canceled and
The learned counsel for appellant makes an ingenious argument to avoid the effect of Howell v. Bush, insisting earnestly that what took place was a renewal of the purchase money debt. But the parties were changed and a new creditor introduced, and I understand my brethren to concur with me that that contention cannot be maintained. I conclude, therefore, as to subrogation, first, that the vendor’s lien was paid off and discharged, when the trust deed to Patty, the vendor, was satisfied, canceled, and delivered up to Hill, and the trust deed to secure Mrs. Jeffries was given, and there was no vendor’s lien existing, when the bill was filed, to which complainant could be subrogated. Skaggs v. Nelson, supra, is conclusive of this. For, secondly, if it be said that the vendor’s lien can now be assigned, the perfect response is that the fact in this case is it was neither so assigned, nor intended by the parties to be so assigned. Had it been, the note and trust deed to Patty would not have been canceled and delivered to Hill, but assigned, as they might easily have been, to Mrs. Jeffries. And, thirdly, equity never enforces conventional subrogation against the proven intent of the parties. Because what Patty thought at
Turning now to the very clear statement of the feature of the law of agency discussed, as put by my Brother Cooper, I have to say that I heartily approve it. But I have searched the record in vain for any testimony to which that principle applies. The answer emphatically denies any fraud on Hill’s part — any co-operation on his part, with Patty to defraud Mrs. Jeffries — and avers that if there was any “fraud .on Patty’s part it lies between complainant and her agent.” And the testimony wholly fails to connect Hill with any fraud which Patty practiced on his principal, Mrs. Jeffries. I quite agree with my Brother Cooper’s statement of the abstract law, but I differ from him wholly as to its applicability to the concrete case before us. Says Mr. Mechem (Mechem on Agency, § 796): “A third person, however, who deals with an agent, is not liable to the principal for a fraud perpetrated by the agent upon his principal in that transaction, unless such third person was a party to the fraud. ’ ’ To this proposition he cites the cases of Mason v. Bauman, 62 Ill., 76, and Bacon v. Markley, 46 Ind., 116, both directly in point. In the former the court say, at page 81: “ It is, however, urged that Stackweather was appellee’s agent. . . . We are unable to comprehend how that fact could charge them with notice that Stackweather
The case cited by my learned brother (Panama Co. v. India Rubber Co., L. R., 10 Ch. App., 515, s.c. 14 Eng. Rep., Moak, 759) was a case of flagrant fraud, clearly proved to have been shared in by the third party — a case of one party, in effect, bribing the agent of the other party, falling under the cases classed by Mechem (§ 797, where it is cited), “ where the third person conspires with the agent. ’ ’ Nor must this case be confounded with that other and wholly different category, where the agent pays his own debt with the principal’s money, the creditor of the agent knowing it was the principal’s money —finely illustrated by the cases cited in the note to Gerard v. McCormick, 14 Law. Rep. Ann., 234 — a category in which, as stated in Smith v. James, 53 Ark., 137, “it is only necessary that the third party should know that the party with whom he dealt was an agent, in order to be apprised that the transaction was beyond the scope of his authority. ’ ’ Here Hill knew that Patty was Mrs. Jeffries’ agent, and that the money of Mrs. Jeffries was loaned to him, and that, with that money, made his, Hill’s, own by the borrowing, he paid off Patty’s trust deed. How is it possible to safely say that, from these meager facts alone, the court below should have found that Patty had, in the dealing, an individual interest adverse to his principal, within the knowledge of Hill, and that Hill conspired with Patty to defraud his principal, Mrs. Jeffries, especially in view of the settled rule that fraud must be established
I sympathize deeply with the feeling that Hill should not keep a home he has not paid for, but I am restrained from yielding to this prompting by the reflection that a general rule for the administration of justice, according to the established principles of law, though not availing against the injustice of a particular instance, is better than the judicial chaos which would result from its nonobservance. Human equity corrects the defects of human law, arising by means of its universality. That equity which is administered by the Omniscient alone, is alone equal to meting out absolute right in every case.
I regret that I am forced to dissent from my brothers, but, as the difference of opinion entertained by me amounts to conviction, no other course is open to me.