Johnston v. Little

141 Ala. 382 | Ala. | 1904

SHARPE, J.

As alleged in the bill the facts material to be considered on this appeal are substantially these: Complainant and the defendants, R. D. Johnston and H. M. Hartón, agreed that through Hartón a-tract of land belonging to Hawkins and others should be bought by complainant and Johnston, each of whom was. to have half interest in the land and to pay twenty-five dollars per acre for his interest, making fifty dollars per acre for the whole, which price-Johnston and Horton had told complainant and induced him to believe was the least at which the land could be bought. Complainant through Hartón paid according to that agreement and by procurement of Johnston and Hartón, the vendors, by a deed reciting a consideration equal to fifty dollar's per acre conveyed the whole land to another person as trustee and the trustee conveyed the title to complainant and defendant Lizzie J. Johnston, who was the wife of R. 1). Johnston, avIio thereafter, by a deed reciting a. monied consideration, conveyed her interest. to defendant, Lula B. Hartón, wife of H. M. Har-tón. The price at which the laud was bought from Hawkins and others did not exceed twenty-five dollar's per acre and the money complainant invested paid for the entire land, neither R. I): or Lizzie J. Johnston- having paid -anything for the half interest conveyed to the latter.

The bill in effect charges that R. I). Johnston and H. M. Hartón conspired to and did deceive him by their misrepresentations; as to the price of thei land to the end of acquiring a half interest therein without paying for it and that knowledge of this came to him within a month before suit was brought. It also in effect alleges in the; alternative that Lula B. Hartón paid nothing for the interest conveyed to her, or that she is chargeable with notice of the fraud, or that in furtherance of a fraud she took the same for the1 benefit of H. M. I-Iarton, or that the consideration paid by him to Lizzie J. John-ton equitably belongs to complainant, and the prayer is that complainant be invested with the title of Lula B. Hartón, or that Lizzie J. Johnston be held to account .to him for the purchase money received by her, or that the defendants be held to account to him'for half the purchase money invested in the land.

The court did not err in refusing to dismiss the bill. By the agreement to purchase, there was established as between complainant and H. M. Hartón the relation of principal and agent, and as between complainant and R. I). Johnston a relation analogous to that which exists between partners. These relations- were each confidential, and being so-, each party to the agreement was by law and equity forbidden to make a profit for himself at the expense of another of the parties by deceiving him as to the purchase price. — King v. White, 119 Ala. 129; Wheeler v. Huge, 1 Wall. 518; Short v. Stevenson, 63 Penn. St. 95; Page v. Parker, 43 N. H. 368. The acquisition of property in this way by a. party standing in such relation is an act of fraud, and subjects the guilty party not only to an action at law but to accountability in equity as upon a trust constructively raised for the benefit of the injured party. — Perry on Trusts, §166; Pomeroy’s Eq. § 1044; Bispliani’s Eq. § 235; Wheeler v. Sage, supra.

For the establishment and enforcement of such a trust this hill lias equity. “A motion, to dismiss for want of equity, is not the equivalent' of a demurrer; nor is it sufficient to reach mere defects or insufficiencies curable by amendment.’’ — Seals v. Robinson, 75 Ala. 363.

To the rule which in general prohibits the joinder of parties having no interest in the suit- there is an exception, which in a suit attaching a transaction as fraudulent renders permissible the joinder as defendant of a party to the fraud, and by the averments of the bill, independent of those which seek to charge him personally, R. D. Johnston is brought within this exception. — Bee Story’s Eq. Pl. § 232; Daniel’s Eq. Pl. & Pr. p. 298; Robinson v. Davis, 11 N. J. Eq. 302; Miller v. Jamison, 24 N. J. Eq. 41.

Complainant's equity as against all the defendants rests primarily upon the same ground, viz: the alleged fraud practiced upon him in the purchase of the land. As against Mrs. Hartón and Mrs. Johnston the relief sought is of the same kind, viz: the establishment of a constructive trust in the land or its proceeds, and its enforcement for the satisfaction of a single demand. Being thus connected in ground of equity and in purpose, the bill is saved from multifariousness and other objections raised by the several demurrers to the bill as a whole. -

Such right as complainant may have to recover for half the money invested by him in the land depends not upon the existence of any trust, or other equitable ground, but exists, if at all, at law. Tlie incorporation into a, bill of a purely legal demand does not make it multifariousness. — Yarborough, Admr. v. Arant, 66 Ala. 526; Baines v. Barnes, 64 Ala. 375; Morris v. Morris, 58 Ala. 443; Carpenter v. Hall, 18 Ala. 439.

That part of the bill which seeks an accounting for and a recovery of half the. money so invested was subject to the demurrers thereto interposed, and the decree in so far* as it overruled those demurrers must be reversed, and a. decree will be here rendered sustaining said demurrers. In all other respects the decree will be affirmed.

■ Let three-fourths of the cost of appeal be taxed against appellants, and the remainder thereof against the ap-pellee.