Fisher v. GradyFisher v. Grady
*1 ux. dealer, Fisher, Grady, et F. a free Don B. 852. So. Division B.
Opinion Filed December 1937. Denied 1938. Rehearing January *2 Askew, Erie B. for Appellant; W. B. Dickenson and Sikes, Lambdin, F. J. Roberts and H. James Carl B. K. Wells, Appellees. H. suit will opinion this Chapman, J. appeared referred to as the court they below as plain 25, 1935,
tiff September and defendants. On filed plaintiff Circuit Court bill com- of Pinellas her County defendants, plaint against other things, alleging, among acquired Fisher title to February F.May the West 50 feet of the Hotel located in Poinsettia City Florida, St. Petersburg, April and on plaintiff’s title, predecessor chain Mrs. Roswell M. Marshall, executed a payment deed of trust secure $115,000.00 of bonds the property. Mrs. against Fisher Marshall, and Mrs. Minnie known Mrs. Alice also Marshall, Roswell M. are sisters. The 113 East feet lying part *3 the tract involved suit in the is a of land which stands, the Poinsettia Hotel the East feet likewise was encumbered a first to Metro- mortgage the politan Life Insurance on the Company Poinsettia Hotel $96,000.00. the sum of The hotel con- property structed to be operated as one unit. The East 83 con- feet tained, floor, on the ground part a the of lobby of said hotel rooms, and three store three floors guest above and 64 feet, rooms. The floor, 50West on the contained ground elevator, stairs, a part rooms, of the the men’s lobby, wash basement, rooms, the the two in- heating plant and store electric, the kitchen of cluding the Shop, Coffee the and steam lines. plumbing
It was the mutual to interest the of sisters to the preserve operation and maintain ownership hotel of the property. Don B. a Grady was of the nephew two sisters they whom brought to Florida from Pennsylvania in 1921 gave employment said hotel a Room Clerk until when Manager was made of the hotel at a salary $300.00 month, per October, and continued said until capacity average 1933. The hotel under normal produced, conditions income, annually, a with large exception the de- period. pression On December plaintiff became ill went to hospital a continued health bаd de- 1933. The
until early part sometime hotel, operated the fendant, Manager, B. Grady, Don hotel rents, income, profits collected revenue and con- houses, activities and these and commercial building “Fisher. F. health of May tinued bad during defendant, B. induced Sen- Grady, that Don alleged at necessary ator money buy N. U. Bond furnish to to $115,- amounting on the all dollar the bonds cents 50 feet the West involving 000.00 secured trust deed $30,000.00, amount aggregate the total sum of $130,000.00. It then due came the bonds and interest with agreement a written alleges further the existence of Bond, N. after the purchase the defendant U. deed, bonds, acquire trust foreclosure on the to institute a sale, convey at deed the Master’s property money purchase property to the defendant and receive re- was used in That mortgage. part plaintiff’s money (cid:127) (cid:127) said financing property. the Master’s deed dated agreement, Pursuant to June 1st July, Bond and day was taken in this N. involved U. conveyed Bond purchase took back mort- price suit the dеfendant and *4 The difference the sum $33,000.00. the sum of gage in of $33,000.00 $30,000.00 the face of paid of for the bonds and $3,000.00, the mortgage, the of purchase price money sum plaintiff N. in form of bonus. The went to U. Bond the a the agreement of the between defendant knowledge no had purchase U. Bond about of the mortgage and N. the Grady $30,000.00, or the of at of taking bonds for the sum title U, Bond, in a of the N. and conveyance foreclosure sale The Grady to defendant Grady. fact said property hotel, of plaintiff, of the and agent manager the was the plaintiff for the at the time de- the same and operating with Bond agreement entered the N. U. into Grady fendant hotel, the purchase the outstanding bonds time of in N. taking conveyance title U. Bond and the thereof to the defendant and the a executing defendant’s purchase $33,000.00, sum price to Bond in the of mortgage law, operation of the defendant to this suit held title to the 50West feet trustee The de- plaintiff. as for fendant Grady plaintiff moneys failed to account for collected belonging to her and he title and claims asserting of the lands in ownership and building right, his own and not as for The plaintiff. trustee defendant violating obligations duties agent plaintiff as her interest acting against title to taking the property under conditions and these circumstances is law a fraud.
The possession defendants claim of ownership West feet the property and at the time of the filing bill, were hotel an operating arrangement under with the Metropolitan Life Insurance Company East feet; that he has collected profits, revenues income from the hotel and commercial houses asserts dominion lessee, rights his own owner and while in truth and in fact he been at all has times agent the plaintiff, appropriated and he has large a sum from these money sources, different $25,000.00, approximating has been paid per plaintiff week as a for salary $45.00 sev- eral and that years, all accounting received moneys by the defendant should the plaintiff. made to The bill prayer (a) complete is for: accounting; (b) that Don B. be decreed Grady to hold the property as trustee receiver; plaintiff; appointment (c) (d) additional equity. relief conformity with appeared defendants filed motion to dismiss complaint bill of and the record here fails to recite an court on dismiss, order made lower motion to *5 6
' been as having but consider same and counsel overruled and denied. 1, 1935, wife,
On B. Mary November Don and Grady their oath the bill of Grady, complaint. filed answer under The answer denied the owner of the West plaintiff was Hotel, 50 her but it was feet of the Poinsettia owned by sister, Marshall, operated Minnie Alice and that had hotel a Minnie agreement under between co-partnership 1922; Alice November Marshall and F. Fisher dated May Marshall, thereto, prior that Alice in was Minnie 1928 and involved; pending, judg- with numerous suits and heavily on against ments been entered or would entered her had her then these obligations under circumstances outstanding conditions, 24, 1928, conveyed and on October she the West day 50 20th Holding Cоmpany, feet to the S. & F. and F. Company conveyed S. & February, Holding Fisher, made May conveyance F. so property consideration, as a matter law plaintiff without held in the use and the title thereto trust for benefit Marshall; Alice F. Fisher Minnie admitted holding others the of the title involved in this suit trustee The at the sister. time had property conveyance her $115,000.00, the sum of in- outstanding bearing bonds in 1932. maturing terest at That East 83 feet f0 $90,000.00 were encumbered and that fore- mortgage court, closure was Federal receiver ap- instituted under pointed, placed charge the suit East feet on the foreclose thereof. mortgage plaintiff operated answer denied the hotel operated but right, co-part- own averred was aby her writing signed by plaintiff nership agreement her managed the defendant business from when sister $3,600.00 salary until October received answer The- admitted the plaintiff became ill per year.
n 7 went hospital December, in that she to but denies unable, illness, was of after because look her business to affairs; interest, she not or that did taxes insurance pay upon the the dissipated and otherwise income and property assets, the and no ever to retire sinking provided fund was plaintiff indebtedness bad financial bonded and that was insolvent; condition reside plaintiff and that continued to hotel until Federal the receiver the appointed was courts, when she advised defendant she had interest no the and had intention no the property, mortgage defend or make the any property, foreclosure effort refinance same, or the and the only hold defendant was at liberty, hotel, to operate the but he could have whatever or amount interest of the from mort- mortgaged salvaged the property gaged pursuant defendant property, agreement the receiver feet obtained lease from the 83 as to East for the season October beginning ending $2,000.00; rental the for a value of that he owned 50 feet hotel and with leasing agreement Metropolitan Life Insurance had manage- Company October, 1933, ment right in his after property own he was not the agent manager plaintiff that has no claim or interest said mortgaged she legal equitable. property,
The answer recites the effect of the economic depression hotel upon the business in the vicinity of St. Petersburg, December, at a meeting attended Mrs. Fisher, defendant, Mrs. Marshall and the it was agreed property lost irretrievably Don Grady make an effort up would buy bonds covering feet and secure an West extension of the mortgage feet, East 83 when pieces two' would corporation into a wherein conveyed defendant own would sisters, stock capital them, between 51% 49% de- terms, conditions circumstances and under these pur- for the raising money fendant undertook the extension feet and an chase the bonds on the West *7 East 83 feet. mortgage on the time of payment of and conserva- The resourceful alleges competent, answer on tive abandonment property; of the management an estoppel; in lаw to part plaintiff, of the which amounts expenditures hotel with heavy on the repairs extensive defendant, efforts hard work constant therefor by which, basis, with coupled place to paying a conditions, hotel property converted the business changed enterprise. a losing profitable a part thereof made a The answer had attached to and recite. certain exhibits unnecessary 7, Hobson, a 1935, Frank On December Honorable T. 4561, Section Circuit, under Judge the Sixth Judicial Florida, M. A. Comp. Honorable appointed Gen. Laws of referee, under with conferred Sec- McMullen all authority heard tion that the referee supra. record shows The F. plaintiff, May of Florence Rossiter and testimony Fisher, entered March the referee made and and on Ex- Mitchell as Special Mrs. Maude B. order appointing all aminer, by the testimony with take offered directions to Referee. report the same parties and stipulation record shows of counsel filed record 15, 1937, dated Hon. January designating cause M. A. Mullen, power hac vice with full Judge pro hear Esq., fact, all questions and determine law and with all Circuit and for this powers Judge, case the A. said M. Judge place McMullen act of one of shall the Judges On of the Circuit. Sixth Hon. February Judicial McMullen, vice, Referee and Judge pro M. A. hac on final plaintiff that the held failed to establish ma- hearing, of the bill of allegations complaint terial said and that proof of the material answer B. allegations of the of Don Grady been had sustained and that there evidence suf- legal nowas ficient in to support law decree in of the plaintiff; favor “that the defendant,” of the with the equities cause were of complaint bill was cost dismissed at the plaintiff. From final decree an appeal this was taken to Court, supersedeas order entered and bond given perfected, the record and on the final decree eight assign- ments of error are for a argued here reversal of the cause.
It is Fisher F. contended the defendants Alice never Minnie West 50 feet owned conveyed Marshall & to S. F. on February Holding Company S. & plaintiff Holding into F. conveyed Company. surrounding The financial conditions circumstances Minnie Alice Marshall at conveyance the time amounted law made conveyance to voluntary *8 creditors. only purpose of the claims of defrauding is Secretary Company It true that the defendant was of the at of think con- legal the time this conveyance. We one, is with conveyance clusion a but we are a dealing sound a sister to a and from the to corporation corporation it conform to parties and as between the appears sister to law, complaining. there no here being creditors that as between the support holding authorities seem to parties it meets the requirements to these conveyances, two 27, Corpus is treated in Volume question law. This 407, Juris, viz.: page par. Relatives:—The fact
“Transfers Between parties to conveyance a are related each to othеr either by or blood does not itself marriage establish fraud in the invalid, transfer it nor render but the fact of relationship be considered in connection may with other properly evi- transaction; tending impeach dence it is very stated that transactions between generally relatives will IQ scrutinized, easily practiced because fraud is so
closely * *”* circumstances. concealed under such L. viz.: par. R. C. page Also “Relationship trans- Generally.—Although of Parties regarded fer their have been insolvent relatives debtors unquestion- is relationship the fact of suspicion, with some se, con- held a per ably generally, fraud and is a preferring faith good veyance or transfer property sustained, relation where creditor the debtor’s will be who is * *” * debt. the value does not exceed the of the property Marshall It of Minnie Alice appears that creditors evidence, ob- bill, a creditor’s adduce right had to file con- tain a involved in these against decree pur- they can be shown were made for the veyances, if it whether pose questionable creditors. defrauding to contend position or not defendants to this suit are Section conveyances that these were void ab initio. here 5771, C. L.G. Southerland, Corp.
In the case of Estates Bay View said: Rep. 114 Fla. Sou. another
“The fact that indebted to person mere be may a fraud law property does not render a of his conveyance real creditors. The owner whether property his or absolute of all personal possesses right dispose fit. The restriction sees any part only law transfer shall be made which will imposed is that no other If the rights persons. interfere with existing disposition injury prejudice is exercised right *9 will then interfere and the ques- other persons courts tion whether the circumstances constituted ipso arises facto al- complaining 'a whether the fraud creditors fraud.” presumption raise a facts leged Wilkins, Kahn in the case of v. this Court held Likewise 434, 584, 428, Rep. text 18 when it Sou. Fla. said: p. 36
11 * * “* deeds, is an rule that аll established of law conveyances sale, purpose' and bills of entered into parties, between defrauding creditors are valid such fraudulent title conveyances absolutely vest estate, grantees except and secure to them perfect a to those transaction. persons actually defrauded 62; Thomas, Bellamy v. 6 Fla. Whitworth v. 83 Bellamy, 308, 781; 725, Ala. 3 Am. Rep. South. C. 3 St. Rep. S. notes; Wait on and Creditors’ Conveyances Fraudulent Bills, Sec. 395.” Wilkins, 428,
The rule in Kahn v. enunciated 36 Fla. 584, 18 Sou. reaffirmed in Rep. was Volusia Bank County 638, 645, 45 Fla. Bigelow, 704, text Rep. 33 Sou. p. v. when the Court said:
*“* * between As the claimant and the defendant ex- ecution former, right might be while at the time might same the property subject to execution against the defendant execution. A grantee in a con- veyance designed to defraud acquires creditors title good as against grantor, title such is yet good against Wilkins, execution former. Kahn against v. 584; 428, 36 18 Fla. South. Rep. Bellamy Bellamy, v. 6 62; Wilkins, 244, Fla. v. 37 Fla. Mayer 19 Rep. South. 632.” expression
A similar made case of Watkins Watkins, text 123 Fla. p. South. Rep. said: when this Court suit to establish a
“This title already vested in the complainant as distinguished one which recon- veyance Wilkins, is sought. In Kahn v. Fla.
So. this Court held a conveyance between a fraud- grantor grantee ulent good as between grantee, title in the vests except as to persons those *10 creditor before no In the us
actually defrauded. case here the parties between complain. involved and none As the transfer complain can be to involved none heard D. Watkins to Sue Barr and Carrie Watkins John. to Sue D. Barr conveyance Barr alleged and the John Watkins, creditors.” fraud Barr Jr., in Minnie Alice Mar- shows The record this case estate boom during real shall and husband had dealt creditors their pressing and were and losses period sustained her she nor husband and obligations payment claims otherwise or money had owned the property pay claims, realized that in- they ultimately these settle Marshall in the West 50 feet of the terest of Minnie Alice called out- satisfy .Poinsettia Hotel be these would existеd, no obligations. insolvency Her standing day boom doubt, 24, 1928, warranty she executed a on October when corporation, F. and her Company, the & Holding deed to S. affairs, improved had not financial evidence according F. the & Holding Company when S. on February May Mrs. involved this suit to conveyed the West feet activity Fisher. There is here nothing showing F. Minnie reach the Alice Marshall to creditors of part suit suit or otherwise. Close involved this they appear existed between the sisters relationship from Minnie rather than individuals. deed family as a sister, Mrs. Corporation Marshall her Alice through Fisher, can for all intents F. considered pur- another. as a from one sister to poses conveyance directly It will be above observed authorities that as between these claim on the sisters absence of asserted creditor, creditors, Marshall, Minnie part of Alice conveyed all then conveyance good interest into plaintiff owned possessed by grantor here. *11 con- of creditors express opinion rights We no as to conveyance. cerning said
Wait on Edition, Fraudulent Third treats Conveyance, question relatives, of conveyances par. to and at 434-7, pages says:
“242. Effect of upon Debtor’s Transac- Relationship tions.—The cases to of of relating proof the effect relation- ship of with A dealing the debtor are numerous. clearly formulated rule on subject not is possible. is It said Supreme Court of is Pennsylvania that ‘there no law prohibiting persons, relations in near of standing business or other; affinity, from each re- buying or them to quiring their conduct business with other each special form.’ son, The of sale a father to property by his father, the son to cannot itself be considered as fraud, a badge and sometimes strongest considera- tions of duty prompt a may son to claim of a prefer the widowed mother. The a may require court mother to show that she had the make means to as her advances claimed to son. ‘The relationship asssignor assignee,’ says Finch, their J., friendship, ‘and intimaсy and the pref- erence to latter as given prove a creditor nothing by themselves. are consistent They with inno- honesty cence, and become only important when other circumstances fraud, invest indicative them with a new character and transform purpose, them from equivocal ambig- uous facts positive into of fraud.’ badges majority that however, cases hold relationship parties, is suspicion, to awaken calculated and the transaction will be scrutinized, if there any facts which closely are tend to fraud, though indicate relationship is suf- itself presumption ficient raise a fraud. con- may be sidered, facts, with the other jury, and rather tends creditors, regarded aid the for highly probable. look a a would party intending perpetrate fraud stranger. rather than
aid and connivance a relative given to an instruction Still deed jury to a erro- fraudulent is debt prima brother to secure a neous, facie with coupled secrecy When relationship is transaction, be re- explained' justified, it may, unless when the applies fraudulent. rule garded The same estate, badges and other transfer debtor’s conveys the entire *12 it in transactions it. In held that accompany some cases faith is good required between relatives no clearer proof of It strangers. may than in transactions between be observed judgments that the obtained here that fact creditors who debtors, de- to the confession intimate relations bore execution, time the usual and order lay of the levy possession, assignee agency under took and the which the though, in the proceedings, perhaps, all attorney of the same not in them- suspicion proceedings, are upon casting of bad imputation sustain selves to strong sufficiently faith, here fraudulent We preference. may or a charge of law a has the common debtor a to the rule of advert another, to that it one class of and right prefer to creditors to consideration a take into encourage jury is error to suspicion in circumstance of de- right ‘a of this exercise the transfer.’ the fairness of ciding upon Bennett in- potent has exerted case of Salmon “The concerning voluntary in this country fluence over decisions opinion course of the C. J., In the conveyances. Swift, not, cases, in will at time all ‘mere indebtedness said: creditors, void as where to conveyance voluntary render a in consideration of love for a child it provision is a affection; children, settlement to all gifts by way for if circumstances, affluent were to be prosperous men fortune, reverse of would involve upon void rendered parents, their ruin of cases many children rem- intended to be evil than that might produce a greater wives, to conveyances edied.’ This rule been applied has other near rela- children, grandchildren, as well as to tives.”
In in con- previous line with decisions of Court and this we with high jurisdictions, authorities other formity were that as between the conveyances hold sisters the said prop- all to said arе sufficient interest convey F. Mrs. Fisher. erty May
Defendants September, contend that from part- he was Poinsettia Hotel for the manager nership. existed between alleged that the partnership estab- Fisher Minnie Alice Marshall and F. The partnership lished under date of 1922. November suit, with agreement involved embraces other there no as to the bind- can be property, question effect of articles ing of partnership thereto. There dispute operation is no about employment hotel under or the agreement, partnership exist the defendant but does partnership, there the partnership conflict as of termination of *13 to the date 1, 1922. It the contention dated November agreement the defendant manager that his as employment 1st, Hotel ceased in or October 1933. September Poinsettia of his entire during period The defendant asserts that he of his dealt employment gave ability, fairly the best favoritism, best honestly, applied showed no very operation known him in principles business partnership hotel. The to the were untrained investments, business, provision indifferent made no as to in the retirement obligations, extravagant- of their it was the busi- expenditure get difficult moneys, determined, financial basis. been having ness on sound Minnie Marshall the interests owned by that all Alice supra, 16 conveyed suit in this were
in and involved property to the on February F. Fisher Mrs. through corporation therefrom, and 20, 1929, Marshall retired Minnie Alice part- dissolved the as a matter of law said conveyance 1, fails 1922. record established November nership interest that Minnie Alice Marshall ever claimed to show interest, of her Hotel conveyance the Poinsettia after the dissolved as partnership existing this theory as between conveyance law on date of the matter of sisters, cause defendant to this contends while the September 1924 until from partnership worked for the October, 1933.
Let ex- us examine authorities and determine istence of for whom claims partnership the defendant have after until February workеd October, 1933. (cid:127)September generally It is conceded interests partner where one transfers or sells his entire sale, withdraws, in the after partnership property Court, is dissolved. This partnership as a matter law the Schleicher, Walker, Co. v. 28 Fla. the case of Schuum & Rep. text said: Sou. p. “It is also settled that where one his partner transfers entire interest partnership concerns to co-partner so vest him as to the partnership assets as his sole prop- dissolution of erty, a the partnership results the pur- partner may against creditor chasing any simple partnership, in him his assign property thus vested sole for the payment his individual indebted- can ness. exercise the saíne Fie dominion over it that he ** *” other individual might over any property. Likewise, principle the same law was reaffirmed Edwards, Durham v. Fla. p. text Rep. Sou. *14 said: when this Court “* * * Where his partner one transfers entire interest to his so as to partnership co-partner concerns vest latter dis- partnership property, assets as his sole a *” * * solution the partnership results. principle The same law 20 R. C. appears Volume L., par. page 954:
“Withdrawal of principle Partner.—It is a fundamental change personnel firm of a a dis- every works solution, and that an existing partnership terminated retires, a new partner is formed partnership whenever a a A one admitted. contract new con- partnership stipulations no taining to the time during which it shall continue force not endure for the life does of the part- ners, them, either or of or for time longer than their any mutual consent. Such a be partnership may by dissolved members, act agreement by partner any alone proceeding in accordance with own will and pleas- * *”* ure, a moment’s and at notice. 47 Corpus Juris,
Also 1116: par. page Partner His by “Sale Interest.—The dissolution aof about partnership the sale of may brought partner’s interest to a co-partner, or to a person, third other- unless agreement, wise provided by there is con- although some * * *” trary authority; on Modern Law of Partnership, Rowley Volume par. 769: page “* * * rule, But as a general any change the member- firm operates of a dissolution of the ship same the formation of a new And partnership. weight transfer of a authority, partner’s interest dis- works partnership, ipso solution of the if a facto, at partnership ground will furnishes for dissolution ap- decree on purchaser of a partner or plication where partner- *15 when such a term, perhaps, for except, was a fixed ship but agreement, the contemplated transfer is partnership of formation that the it has been held while in some cases all assets the the business which over corporation takes au- partnership, the firm dissolution of of works a voice one as with not, speak first glance, thorities do at subject.” Alice Minnie the interest of transfer of It seems law, dis- of a matter Marshall as February the sisters between partnership solved said from 1924 until working was defendant claims whom the October, a decree true that оf 1933. It September or dis- legal have effected court been necessary have may said partnership to the solution, the parties but as between de- far it affects the as tO' and function so exist ceased 20, 1929. employment February fendant his said as now consider the evidence to de- necessary becomes relationship termine the F. Fisher Mrs. defendant 1929. Mrs. Fisher testified after February hotel, rooms, managed the rented col- Grady defendant rents, checks, lected deposited money, signed charge had business, supervised of the had bookkeeping, full control money, general was after agent “he and looked my affairs, affairs.” “He I yes, all handled all my my him to them.” trusted handle Defendant testified Grady October, he worked until partnership for the was Poinsettia manager Hotel during period, but was not an Mrs. position agent Fisher—“my manager relationship—I confidential helped the hotel was at them times, I I never felt that acting different but was con- I all helped fidential members at agent. family dif- tried to treat thеm both same ferent times. I way I agent, service. but them best give manager expenses I operating the hotel. I paid did what $1,000.00 was told to He do.” received week and per $50.00 *16 October, 1933, per annum but had and drew until salary his not he received in full. He twelve salary years; was there “I negotiated Mrs. Fisher. and closed business items for trades, was them”—“they of all I for all might say, of Jack fire, called on me from a a lawsuit for flood to anything else, or it mem- anything did not make difference which any ber it me out see if I of was would seek they family could “I be of some assistance.” add if one might any of I into trouble seemed to be the first indi- family got vidual looked for.” they
Defendant of stripped stated he power Grady when Mrs. Fisher her power agent gave t'o attorney brother. fails to support The this statement. evidence Counsel for both the hotel Grady managed admitted October, from 1924 until 1933. Defendant man- asserts he she, agent while aged partnership,- plaintiff, it for her. That managed principal contends relation of Mrs. F. Fisher agent еxisted between and the de- fendant, Don is the evidence. Grady, sustained fully evidence that defendant been established having let us his un- duty was the determine agent plaintiff, par. der the law. page Corpus Volume Juris Secundum, it was said: principle
“This applied is sedulously agent’s and an acts which tend to violate fiduciary duty his are considered the light upon bestowed, of fraud confidence and are invalid as to the but only principal, are against public also In the policy. proof however, absence contrary, the presumption arises that an has agent performed his duty faith, and the until notice good principal, is of a. received duties, breach of relational agent’s his may rely faith- fulness.”
n 203-4, American Volume pages par. Juris- prudence, it was said: Loyalty. Faith and of Good Fiduciary; Duty as a
“Agent respect with fiduciary —It well settled that an is a agent is re- very agency. to the within of his scope matters or trust some principal reposed has implies lation Therefore, or employee agent confidence agent. faith and loyalty utmost good is bound the exercise not to He bound is employer. duty or principal toward his serving employer by his to the interest of act adversely own in-antagonism private interest of acquiring any for the solely benefit thereto. His to act opposition duty his agency. connected with in all principal matters as well as sense honesty a rule of common This *17 be must of principle custom subversive this law. Any law, of unreasonable, opposed policy to be deemed to 1Indeed, in that it been stated has and hence of no effect. case, prin- to further his agent of the usual it is the duty his own in matters expense of interests even at the cipal’s fraud But of presumption no agency. with the connected unless it appears an agent arise against deemed to will be with those of conflicting interests personal that he has principal.” Florida the case City Court of Supreme Inc., 30, al., 119 Fla. text Gables, p. et Coral Gables v.
Coral 476, agency, said: treating 37, Rеp. 160 Sou. is than of law better settled that the same principle
“No himself at time the same with re cannot act for person of another matter as the in agent the same whose to spect conflicting. positions impose The two different terests are at their union would once raise a conflict obligations and, is, constituted as interest and duty humanity between would be overborne in the duty cases majority Whitmore, 21 (U. 178, March v. Wall. 22 S.) struggle.
21
462;
Co.,
L. Ed.
R.
Angeles
San
& Los
Diego
v. San
Diego
106;
Burr,
315,
44 Cal.
Lainhart v.
“Likewise had been held be considered may that when the re- jurisdiction established doctrine lation of is entitled principal agent principal exists the skill, all the of which the agent ability industry his capable principal’s interest the exercise of the utmost faith on his good part agent toward principal principal, agent, may the end accomplished. benefit Boswell v. by the See work 354; 32 Fla. Cunningham, City So. R. Burnham Rannie, Lumber Co. 59 Fla. v. So. R. 617.
“The existence of such a relation as that of fiduciary principal agent precludes the latter from advan- taking tage his or to use employer any knowledge acquired such relation the personal ad- pecuniary injury * * *” expense. at his vantage agent employer’s
Likewise, Special & District Bridge Road Connelly No. Rep. 99 Fla. said: Sou. “ well ‘The settled and principle salutary person not, *18 act for another who undertakes to shall in the same matter, himself, act for results also the other rule that' all made profits advantage gained the by agent in the to agency belong execution the the principal. And matters not whether such profit advantage be the result or of the violation performance of the duty of ” fruit agent, if it be the of the agency.’ has, time,
This Court time to considered and de- 22 trust. resulting amount to a which
termined in law facts entered into Grady defendant evidence here shows towas wherein N. U. Bond a written with agreement the West covering furnish bonds buy to necessaiy money were feet, the bonds and, agreement, pursuant 50 foreclosed mortgage and the purchased price a reduced at at Master’s sale U. bought property and N. Bond defendant conveyed the day property on following sum of mortgage took purchase price back a $33,000.00 Grady time the defendant the same and at no knowl- for the she had plaintiff, hotel managing the was around about the transaction'—she information edge or health, and de- widow—in bad age, seventy years defendant, for her care nephew, her pended interest, twelve he had doing approximately which been circumstances, defend- Under these what was years. Quinn Phipps, In? to the case of duty plaintiff ant’s 813-14, Rep. Court Fla. Sou. p. text said: respect by equity
“A one raised constructive trust is where, fraud, or has acquired which been fraud, it is against equity without though acquired originally him holds it. Construc- who that it should be retained construction of inde- equity trusts arise tive purely intention presumed actual pendently any оn trustee for generally a trust are thrust to create remedy. out the are said purpose working They fraud, fraud and from some actual constructive arise from independent of the existence pxdnciple any equitable L. 1232. fraud. R. C.
“In discussing give circumstances rise con- to a trust, Perry, (6th structive Trusts Edition) par. pertinent the following has comment: page “ person legal ‘If a obtains title to property by such *19 circumvention, imposition, arts or or acts or circumstances relation, fraud, or if he confidential virtue of a obtains not, ought and influence under such circumstances that as ad- conscience according good to the equity rules of in- ministered the beneficial chancery, enjoy to hold and terest of order to admin- courts of property, equity trust complete ister will raise a justice, between the parties, relations; construction out of such circumstances or the of- this trust will fasten the conscience of they legal him fending party and will convert into a trustee of title, such and ordеr hold it execute trust in him to or to manner party as to defrauded protect rights promote Such trusts and interests of safety society. are called constructive trusts. differ from trusts other They in that contemplation are within intention they the parties they at the the contract from which time is made court, are thrust upon construed but are they party his intention'and consent. The rea- contrary against son is that jurisdiction have a over equity large courts of all matters of confidence. control and They trusts in certain direct their administration and annul they cases an them put convey end to the trustee to by directing the trust interested.’ person to the beneficially
“From examination many Eng- text-books and lish and American cases the law touching question, well settled will a con- equity seems that a court raise compel structive trust restoration where one through fraud, actual of confidence reposed accepted, abuse other for him- through questionable gains something means which in conscienсe self he should not be equity good permitted to hold.” Johnson,
Likewise in Clark v. 91 Fla. text page Rep. 107 Sou. it was said: position
“One who assumes the owner agent *20 24
for owner cannot while the for the purpose paying of taxes taxes sell for such the status allow occupying sale, made, tax a certificate deed under of so acquire his will owner or against which the convey a valid title fraud against successors in title. A deed so obtained is the owner his in title.” or successor 243, 234, text p.
In 90 Fla. Jennings, the case of Dale v. 175, con- of a court were Rep. equity powers Sou. it when was said: sidered
“The jurisdiction exercised by equity over courts persons certain relations dealings standing fiduciary always has been one of a de- regarded salutary most The scription. principles applicable to familiar more relations this character have many been long settled by decisions, always well-known but been courts have jurisdiction careful not fetter this useful defining by exact exercise. Whenever persons limits its two stand thatj continues, in such relation it confidence nec- while one, reposed essarily naturally influence which other, confidence is possessed out of that grows abused, confidence is the influence this to ob- exerted at the advantage expense tain an confiding party, himself of position will person availing per- so not be advantage, retain the although mitted to the transaction impeached been if could not have no such confidential re- lation had existed.” Goodbread, similar rule Thomas v.
There is a 78 Fla. Rep. 82 Sou. where this Court said: p. text to these Court decisions the adjudi- “In.addition hold where generally cases one cated land at a buys a parol agreement under sale to purchase for judicial an- other fails convey according agreement, a con- trust arises where promisee structive pur- Jurnished
.25 estate, interest in or a chase an actual money, had * * *” bona claim thereto. fide sufficiency for weight rule determining the evidence in trust has been settled resulting establishing in this Cоurt case of In the fifty years. approximately Loftin Sterrett, was held Rep. Fla. Sou. that a resulting proved parol trust in real estate may *21 testimony, but full clear. Likewise proof such must be and Simmons, 423, Rep. the Geter 57 Fla. case of v. 49 Sou. 131, it was said: clear, establish trust must resulting
“Evidence to be so unequivocal and from the mind of the strong as to remove Chancellor every reasonable the doubt as to existence of trust.” al., Brown, Brown, 423,
Also in case the et v. 106 Fla. 426, 737, text p. 143 Sou. Court said: Rep.
“When a trust is sought by to be resulting established parol the person evidence burden asserting rests of the trust existence to remove reasonable doubt every clear, strong to its existence evi- unequivocal Kimball, 465; dence. v. 92 Fox Fla. 109 Sou. Rep. 836; McGill 71 71 Chappelle, Fla. South. Rep. v. 134; 90 105 Semple Semple, Rep. v. Fla. South. Johnson Sherehouse, Rep. 61 Fla. 54 South. 892.” Plaintiff 50 acquired title to feet on February the West defendant since been Grady, had Mrs. Fisher’s health worse charge property. grew hospital until 1931 she to the later went to the moun- Carolina, North whence she during tains returned late Fall of 1932. was then early Summer dis- they feet, 50 all refinancing of the agreed cussed a West $40,000.00 it to out their require carry plans. would plaintiff assisted an working agreement out defendant rents acceptance with the Bondholders’ Committee were feet, negotiations all the when to East individual Plaintiff contacted handled defendant. $40,- furnish thought whom she and believed would to think feet, reasons had 000.00 to finance West en- defendant and believe she could but the get money, N. U. Bond written with Senator agreement tered into a be in- foreclosure to money, arranged furnish October, 1933, defendant in August prior stituted and Mrs. Fisher as sent statement release to Grady feet signature West 50 her to same requested $2,899.27 The sum of de- presence of two witnesses. the defendant at the Viney livered to while time was Judge It seems that all plaintiff. acting agent Fisher, Mrs. business with her having dealings contacted about the through defendant Grady question. Defendant told Mrs. Fisher was “to run Grady necessary these bonds through wringer,” them at mеaning buy discount, foreclose obtain a Master’s deed to the *22 The at no time or property. defendant occasion Grady by instrument action appropriate writing advised that Mrs. F. Fisher he was not in her in re- employ for property, arranging financing foreclosure and property. title to the taking It he is true that defendant stated that had a Grady joint Mrs. Fisher Mrs. Marshall he conference with when not continue management advised them that he could hotel same lost and the sisters and the was consented loss, he from the and from the something date salvage conference asserts that the relation of principal regrettable terminated. It is there some agent is not instrument in the terms of the writing expressing agreement, wherein signed, witnessed and each detail about properly set The forth. verbal fully agreement property
27 relied acts contrary the defendant was doings dispose of the all plaintiff at times and of valuable in such of the average a manner is not the custom business man set in this impossible or woman. out opinion all the evidence as the record is with large, adduced exhibits, hundred with and able one approximately lengthy filed on part parties. briefs of counsel for have We overlooked authorities cited the many counsel defendant to that an court appellate the effect cannot Chancellor facts unless findings reverse of a it has been appear findings clearly made to that the are erroneous when all evidence. Hol- See: considering Evans, land 839, 623, v. Rep. 113 Fla. 152 Sou. appearing in defendant’s brief as follows:
“‘(1) presents case question sufficiency the evidence support the chancellor’s findings. A rule which this Court has earliest observed its history that a and conclusion finding chancellor’s on facts will hot be disturbed the evidence unless shows clearly that such finding conclusions are erroneous. See Waterman v. 660, 97; 28 Fla. 10 Higgins, Fuller, So. Fuller v. Fla. 23 236, 426; Price, 2 Lewter 439; So. v. 25 574, Fla. 6 So. 396, 415; Queal, v. 58 Bothamly Fla. 50 So. Viser Wil- v. 395, lard, 501; 60 Fla. So. 53 Theisen Whiddon, v. 60 Fla. 372, 642; Tuten, 53 So. Bank of v. Jasper 423, 62 Fla. 238; 57 So. Dixon Lumbеr v. Jennings, 405, Co. 63 Fla. 615; 57 So. Terra Ceia Estates v. 261, 68 Taylor, Fla. 169; 479, 67 So. McGill v. 71 836; Chappelle, Fla. 71 So. Co., Farrell Forest 216; v.. Inv. 73 Fla. 74 So. 1 A. L. Beacham, 25; R. Hill 147; v. 79 Fla. 85 So. Sandlin Hunter, 553; v. Fla. Smith, So. Shad v. Fla. 897; Stinson, 76 So. Edney 90 Fla. 105 So. *23 821. Where
‘“(2) evidence is conflicting, finding finding such unless the chancellor will be disturbed erroneous, corollary is mere shown be clearly con- above, must the chancellor because rule announced value, evidence, and determine weigh sider the its probative docu- and such of the witnesses spoken words truth of the given as in ments offered evidence are him. If the finding proposition under consideration by of wit- statements he makes from the conflicting which disturbed, the evidence it must because nesses is to be be irreconcilable with clearly considered in its entirety him.’’” conclusion reached by duty In law it the administration of the becomes from we the decree as do appealed this Court reverse not think justice or substantial was awarded believe Rights Declaration of Consti- court below. The Florida, 4, reads: tution in Section provided рer- open, every “All shall so courts this State lands, goods, person for him in any son done injury law, due reputation shall course of remedy, have without, sale, administered, right and shall be denial justice (Emphasis supplied.) delay.” feel the entire record we that substantial Considering supra, require justice right, provided granting with final decree accordance prayer of a entry the lower decree complaint court. The of the bill from is reversed further appealed hereby proceedings with opinion. lower not inconsistent court this ordered. is so Brown, J., P. 'Whitfield, J., concur.
Terrell, J., opinion judgment concurs Buford, J., dissents. not participating.
Ellis, C. J., much impressed (dissenting).—I am with Buford, very J. Chapman Mr. prepared by opinion the able Justice
29 reflected the case and court below if decree of the had of this majority conclusion been which has reached Court, I hesitancy agreeing should have had no affirmance.
In decrees such cases orders and findings, as this consideration, weight referee entitled аre to the same decrees findings, orders and dignity standing as are the aof Chancellor. prior can to and during
There be no doubt that long here involved period of time transactions which the during relation with transpired occupied fiduciary Mr. Grady loyalty' his absolute complainant required which in law prop- interest in the preclued her and his acquiring any full knowl- without her against involved her interest erty 93 Quinn Phipps, so do. See v. Fla. edge and consent 805, 113 419. Sou. title property Mr. to the acquiring
If acted in Grady and con- knowledge in his full right involved own with the no then should do complainant sent of the so result the title to which would relation existed fiduciary him trust for the being involved vested complainant. use benefit of the trusts existence of constructive presumption of shall have I think relations fiduciary be rebutted when may of a resulting the existence been shown exist just rebutted. trust as a of law presumption may Kimbal, In Fox v. Fla. Sou. it was held: dem, Feller, “In ex Feller N. Y. Wendell Jackson, 2nd held, ‘A resulting trust by parol be rebutted may that the lands which estate proof were claiming purchased to the and were grantee, and advancement gift party paying money’ for the benefit of the the consideration view Courts in this and this to be the continues country. Edition, Trusts, page *25 Eighth
“In Vol. Lewis ascertained that been ‘When it has once says: the writer purchase the at time the understanding of the owner, the also be beneficial was that the owner should legal the paid money the who competent person it is not for any the instrument at construction put a different his inten- claim the estate against subsequent period, ; circumstances the under such (a) tions at time and even if conveyance execute a afterwards to legal agreed tenant would en- Court paid money, who person to the contract, (b).’ if voluntary merely force Bosworth, “In Tenn. 9-51 Am. Dudley Humphreys Conveyance 690, the Dec. Court says: “Whether' Taken Paying the Name of Another Than the Person other, re- advancement to such or a is Consideration created, depends upon trust is the character of thе sulting inception.’ transaction its at trusts be-rebutted
“Resulting may by parol declarations favor it otherwise be persons whose would raised.” or not Mr. conflicting evidence whether as in the transaction Grady involved acted in his own behalf with the full and consent of knowledge complainant. that that he appears theory to me on the so acted only referee reached the which could the have conclusion he did reach. it made
I that clearly appear am not convinced the referee committed error. Rehearing.
On Per Curiam. for it made to On petition rehearing at the conclusion appear judgment appearing December opinion filed this cau’feeon should be as to read follows: amended so the entire we feel that substantial Considering record justice and right, provided supra, require granting entry a final decree in accordance with the prayer court, complaint bill of the lower the said by requiring make full, render Grady to the said Fisher true and correct for which all have come into accounting moneys his hands reason of his control of possession and suit, property involved in this to take credit being allowed for such reasonable Chan- be allowed may sums as expenses, cellor as own operating including just compensation, reasonable for all sums have .and shown to been expended reasonably Grady said prudently betterment, permanent improvements, furnishings *26 him requiring over balance of such funds pay Fisher; to the said and that decree adjudicate that the note and B. N. mortgage Grady executed Don U. $33,000.00 Bond for the sum the obligation, note and Fisher, mortgage of Fisher said the said requiring off and such note pay discharge mortgage and all interest thereon as and the payments when thereof shall become due if or sooner to the holder payable, agreeable of such mortgage. note and appealed
The decree from is reversed for further- hereby proceedings the lower court inconsistent with this opinion.
So ordered. denied.
Rehearing Chap- C. J., Ellis, Whitfield, Brown, Buford J., concur. man, J. examination of the
Terrell, J. record the light On petition I rehearing, agree per to curiam order herein, I filed but think equity it should go further and provide an or interest equal right for the appellant and ap- ac- after the the res remains of in and to whatever
pellee counting. et ux.
Ray Realty Corporation H. F. Kettman, 563. 178 So. B.
Division 5, 1938. Opinion January Filed 14, 1938. February Denied Rehearing & for Appellant; Morrow Mayes, Colson, Jr., for Appellees. W. W. suit in to this this opinion
Chapman, J. will be plaintiffs referred to as ap and defendant as they peared court below. On May plaintiffs Florida, filed Circuit Court of Dade their County, *27 complaint alleged, things, bill other among 18, 1927, defendant was indebted to January plain $20,000.00 in the sum of and in consideration thereof tiffs its delivered note said sum due promissory executed and thereof, whji interest after date at the rate year one cent, note per annum. The said was secured per eight Gables, Bank of Coral for the use and .the delivering securities, viz.: plaintiffs, described (a) benefit of August notes dated three the sum promissory