12 Fla. 336 | Fla. | 1868
delivered the opinion of the court:
The'bill states that some time in 1866, the defendants obtained from complainants a conveyance to Sophia Fraser, of a lot in Fernandina known as lot 7, in block 46, and that said •conveyance was obtained by fraud.and covin. That complain•ants left Fernandina a short time before the war, having owned and possessed said property, and went to N.ew York, where they remained till the cessation of hostilities. During their .absence one S. N. Freeman obtained possession of the property under an alleged sale by the United States Tax Commissioners, or some other way, and they could not obtain possession, although they redeemed the same in accordance with the acts of Congress. That John Fraser offered to act as their agent in obtaining possession, and impressed them with the idea, and made them believe, that he had influence with Freeman sufficient to accomplish a satisfactory arrangement, by which they would recover their house and premises; and complainants accepted his services, and trusted and confided in him. Nevertheless he kept postponing and deceiving their hopes, pretending he was endeavoring to effect the desired object, until at last, being so often disappointed and deceived, and defendant offering to buy .the'lot, they concluded to sell to him on condition that he would enable them, to get a comfortable house in Fer
The answer of defendants admits that complainants did execute the deed of lot 1 as alleged, but denies that it was done under all the circumstances stated. That Fraser was not the agent of complainants; did not offer his services, but merely
Complainants filed a general replication.
The cause was heard before the judge of the Fourth Circuit, on the second day of January, 1869, upon the bill, answer and proofs, whereupon the judge rendered a decree dismissing the' bill with costs, from which decree the complainant appealed.
1. That an agency was proven in John Fraser in the premises, which involved confidence from said complainants in him, and of which he took advantage, which vitiated the sale and rendered it null and void ; and
2. “ That fraud is apparent in the whole transaction on the part of John Fraser.”
Agency is founded upon a contract, express or implied, by which one of the parties confides to the other the management of some business, to be transacted in his name, or on his account, and by which the other assumes to do the business and to render an account of it; and may be created by -writing or verbally. 2 Kent Com., 612.
The complainants allege in their bill that John Fraser offered to act as their agent to obtain possession of their premises; made them believe he had influence with Freeman, and could accomplish a satisfactory arrangement in the recovery of their premises; and that they accepted his services and trusted and confided in him. No particular instructions were given him, and he, it is inferred, undertook, voluntarily, to assist them. The complainant, James Harkness, testifies that after he had redeemed his property from the tax sale, Fraser wanted to hire the property in question; that he consented to rent it to him if he could find out the agent of the tax purchaser; and that “ Fraser suggested the necessity of having an agent there to obtain possession, and I appointed him; ” gave him no written power, but regarded him as his agent and friend. After several months he wrote to Fraser to find out the agent and get possession. Mrs. Fraser, in behalf of her husband, wrote Harkness that Fraser had not obtained possession, but that he had found “ that S. N. Freeman was the agent, but that he declined to give up possession unless the purchase money was refunded.” This letter was “ so unsatisfactory ” that Harkness “ remained in Savannah
John Fraser, in the answer, denies that he was an agent for Harkness-, or that he offered his services, but says he merely stated to him that he would use his influence with Freeman to induce him to release the property, and did his best to accomplish this purpose; and in his testimony says that he was not his agent, but acted simply as- his friend. This is all the case shows in reference to an “ agency.” .
It is conceived that an agency, considered in its ordinary or commercial sense, is not established; but there evidently was a confidential relation existing between the parties, involving trust and good faith, and in cases of this character, if one party takes advantage of the confidential relation to impose upon another, and by imposition, deception, or undue influence, does an injury to the other, a court of equity will lend its aid to remedy the wrong done. See Dunlap’s Paley on Agency, 11; and Hugenin vs. Basely, 14 Ves., jr., 299. The evidence of the abuse of this confidential relation, as alleged by complainants, is, that the defendant, Fraser, having undertaken to act in behalf of the complainants, neglected to bring about a satisfactory arrangement, failed to obtain possession of the property for the complainants, negotiated for the renting of the property from Freeman in his own behalf, purchased the property from the complainants, and soon afterwards obtained the possession, and has ever since occupied it. We fail to see any substantial evidence of fraud or imposition in' these circumstances. The inference that Fraser, while pretending to act for his Mend, was in reality taking advantage of his confidential relation, soothing him with fair promises and at the same time managing “to pre
All the facts which tended to excite the suspicion of fraud on the part of Harkness, Culminated with the taking possession by Fraser of the house, a few days after its purchase from Freeman ; and yet Harkness does not seem to have been aware of, or suspected, any fraud on unfairness, for several months after-wards. If any circumstance occurred subsequently to arouse any such suspicion, the evidence of it has not been placed in the record.
The complainants allege that Fraser “ kept postponing and deceiving their hopes, pretending he was endeavoring to effect the desired object, until at last, being so often disappointed and deceived, and defendant offering to buy the lot, they concluded
It is not discovered that the fraud was v&ry detrimental to Harkness, for the Rev. Mr. Baker testifies that Harkness agreed to sell him the property for two hundred dollars; and yet Fraser, soon after, bargained with him for it at one thousand dollars.
3. The third ground upon which the decree is sought to be reversed is, that “ the supposed or -attempted bargain and sale was nudum pactum, no adequate consideration having passed from John Fraser and wife to complainants.”
The appellants cite the case of the Southern Life Insurance Company vs. Cole, 4th Fla. Reports, in support of this position. That case was entirely unlike the present. There the plaintiff undertook to foreclose a mortgage given by Cole, and the court found that there had never been a delivery of the mortgage, and that there had been no consideration of benefit or advantage to the mortgagor, or detriment to the grantee, and declared the bond and mortgage mída pacta.
The bill charges that the complainants agreed to take 81000, in addition to the payment of the incumbrances (something over 8200), and made and executed their deed of conveyance, “but which 8.1000 the defendants never paid them, in lieii of which Fraser undertook to turn over to them, without executing any good and sufficient title in fee simple to the same, a lot in Fernandina of less size, together with a small quantity of lumber,” and that after complainants had attempted to build, and used up the building material, leaving the house unfinished, “ they abandoned the work, and informed Fraser that he must pay the
The answer denies the allegation of non-payment of the consideration, and says that full consideration has been paid ; that the defendants assigned their right, title and interest, in a lease for 99 years, of lot 10, square 29, with improvements thereon, valued by both parties at $600, which was taken by complainants as part consideration for said lot 7, which assignment was written by Harkness; that complainants took possession of lot 10 and commenced building on it (and had offered it for sale); that Fraser delivered lumber of the value of $220, also as part consideration; that he did carpenter work amounting to 840, and that Harkness was otherwise indebted to him in the sum of 8120; that defendant paid Freeman 8200, to get possession of the house, and “bought off” the persons in possession; that he has paid Finnegan $211, principal and interest, of the mortgage thereon.
The lease, in evidence, is dated 20th February, 1858, executed by the Trustees of the Florida R. R. Co., to Sophia Fraser, for the term of ninety-nine years, at an annual rent of sixteen dollars,, payable annually, and provides that the lessee will be entitled to a title from the R. R. Co., at anytime, on payment of two hundred dollars and all arrears of rent, taxes, &c. An assignment is indorsed, signed by John Fraser and Sophia Fraser to-(erased.)
The testimony discloses a sale and conveyance by the complainants, to the defendants, of their lot, for the consideration of one thousand dollars and the payment of certain incumbrances ; the possession at the time being in other parties, who made some sort of claim thereto, and whom the complainants found it difficult to dispossess, and they were unwilling to pay the amount required to obtain possession. The complainant James Harkness drew up the deed, and the complainants execu
"-Oft-the-'other hand', -■ Fraser- gave possession of the leased-lot -arid house,'Which Harkness-occupied•Tiom'May-'t'o^-J'anuafy, p'aid 'itp'-Hafkhéss*' mortgage-to;Finnegári of $21'l¿"let complainants have'' abóui 420,0' wóíth-of! lumber, paid Ffeeman-$2po and upwards to get possession, of tfib house'purchased^ arid'so-far :Us . chh-'be discovered;‘Éas-'done^añ'd-is willhig to-do.'all!-thait can he ''rightfully1- demanded' of 'him in the premises.1 'The-'-preeise stat.e
4. The fourth ground of reversal is, “that Sophia Fraser never acknowledged her act in signing, sealing, and delivering the lease referred to in said bill of complaint, to the complainants, as required by the statutes made and provided for the conveyance of the separate property of married women; and otherwise John Fraser and -wife did not execute a valid and legal title-deed in said lease lot to complainants or either of them.”
This ground is, in the main, disposed of above. The reasons why the defendants have not completed the transfer of the lease are fully explained by the testimony of the complainant, Ilarkness, and there has been no refusal to complete such transfer. There is no allegation in the bill of complaint that the defendants agreed to make a perfect title to the leased lot. On the contrary, the testimony shows rather conclusively that the com* plainants bargained for the lease itself, and the estate it carries. They do not pretend to have been deceived or seduced into taking • a lease when a deed was called for, and the testimony indicates that they are persons of fair intelligence. The bill, so far as it relates to this leased lot, simply alleges that the defendants agreed to give $1000 for complainants’ lot, “ but which defendants never paid them; in lieu of which John Fraser undertook to turn over to them, without executing any good and sufficient title in fee simple,” a lot and a quantity of lumber, &c. There is no proof that there was any fraud in the matter, and the whole case referring to the lease is contained in the testimony. The bill does not mention the lease. Neither is there any charge in the bill that the property sold by defendants was tbe separate projDerty of Mrs. Fraser.
5. The fifth ground is that “Margaret M. Harkness, being a femme eovert, and the property in controversy having been her
There is no allegation in the bill that the property sold by the complainants was the separate property of Mrs. Harkness, nor is there any competent proof of that fact. The mention of it in her acknowledgment does not put the question before the court for its consideration, nor is this recital of it very good evidence of the fact.
The bill alleges that the deed was executed by the complainants. The deed introduced in evidence in the case has appended to it what purports to be an acknowledgment, signed by Mrs. Harkness, and it recites that the acknowledgment is made before one Johnston, a justice of the peace, and that he attests the same; but instead of this, Justice Johnston’s signature is not affixed,'and it is signed “ H. Timanus, justice of the peace.” If in fact she did sign and acknowledge in presence of Timanus, as a justice, the recital in the body of the paper that it is made before another justice, may pi-esent a question to bo determined in some other form of proceeding. It is not in the issue in this case. It is somewhat anomalous, that a party should come into a court of equity and demand that his deed be set aside because of his own blunder, or his imperfect execution of the instrument. If it be true that the property was her separate estate, and that she has not executed a conveyance of it in such manner as to convey the title, her remedy, if she lias any, is by some other proceeding.
These suggestions are made only because the matter was dwelt upon in the argument with some earnestness, before this court.
- The hill prays that the defendants may be decreed to bring into court and deliver up-the deed executed by the complainants-to he cancelled; that the title and the right of possession may he decreed in the complainants, and that the sheriff eject the defendants,, and put the complainants in possession, and for further relief, &e. We cannot find that the complainants are entitled to -the decree here .prayed.
The decree of the-Circuit Court must he affirmed, with costs.