35 F. 243 | U.S. Cir. Ct. | 1888
This is a bill in equity, brought by complainant, Morrell C. Keith, to set aside a sale and conveyance of a certain tract of land in the city of Topeka, made on the 28th day of August, 1886, to defendant Cyrus K. Holliday, and to have defendants adjudged as holding the legal title in trust for him. The contention of complainant is that defendant Edward P. Kellam was his agent; that he was a joint purchaser with defendant Holliday, and thatj while assuming to act as such agent, he withheld the information which he ought to have given, and thereby obtained a conveyance at less than the real value. The pivotal question is as to the relations of Kellam to the complainant. It is strenuously insisted by the defendants that whatever authority or agency he may have theretofore had in respect to the land was of a limited and special nature; that he was never an agent to sell; that complainant was advised that he expected to have an interest in the purchase, and therefore the parties dealt rightfully at arms-length. On the other hand, complainant insists that defendant Kellam had acted as his agent in respect to this land for a series of years, 'that he was the only agent that he had had, and that their relations were such that he had the right to rely upon him, and did so rely in ignorance that Kellam was to share in the purchase, and believing that he was caring for his interests. Now, the facts in reference to the relation between these parties are these: Complainant had owned the land from 18 to 20 years, but had not been in the city of Topeka, nor seen the land, during that time. Kellam had married the niece of his wife, and had visited in his family as a relative. Their personal relations were friendly and familiar; one addressing the other in their correspondence as “Dear Ed,” and the other, in response, as “Dear Morrell.” During all these years complainant had no one to look after this land in Topeka except defendant Kellam, and the latter had looked after his interests in the land in all things that have transpired to affect it up to this tinie. True, being unimproved land, there had not been many things requiring attention. He had paid the taxes on the land for complainant; he had informed complainant that the assessment was too high, and appeared before the county commissioners in behalf of complainant two or three times to have the assessment reduced. He accepted, in behalf of complainant, notice of the laying out of highways, and resisted applications therefor. He notified complainant that a railroad company was seeking a way through the land, and by his instructions made resistance thereto. He settled with the railroad company, signing the receipt for damages, “M. C. Keith, by E. P. Kellam, Agent.” About 1872 he suggested to complainant the fencing of the land, to which complainant assented. The fencing was done under his superintendence, but paid for by complainant; and thereafter he had the use of the land for the pasture of his own cows as well as of others, collecting pay for the latter, and appropriating the same to his own use in consideration for the care of the land. He sold a few tree tops cut on the land, and leased four acres for a base-ball ground. He spoke of himself to parties who inquired about the land as the agent; and discussed with them its value; received offers, and promised to forward them. He suggested to
“Wherever two persons stand in such a relation that, while it continues, confidence is naturally reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relation had existed.”
Now, can it be doubted that complainant, living at a distance, and for years never seeing this property or the city in which it was located, had a right to rely, and did rely, upon defendant, who knew the, property and its surroundings, its present value, and all the future prospects; who was his relative by marriage; who had paid his taxes for years, and had looked after every matter affecting the land that had arisen during those years, and who was annually receiving out of the rental of the land compensation ■ for such care and watchfulness,—can there be a doubt, I repeat, that he did rely, and had a right to rely, upon him as upon one who, having cared for his interests in the past, would do so in the present? Not only is this reliance deducible from and justified by their past relations; its, existence is evident also from the tenor of the letters during the negotiations for this sale. In May, 1886, complainant wrote to Kellam, and closed his letter with an inquiry as to what the land' could be sold for. Then-, on June 30th, Kellam, at the instance of his co-defendant, opens the correspondence which results in the sale. This correspondence continued, there being some 14 letters backward and forward, to the 20th of September, 1886. It is scarcely necessary to copy these various letters; the perusal of them shows that Keith was relying upon Kellam to protect his interests. Though situated only a day’s ride or such a matter from Topeka, and though the transaction was one amounting to $60,000, complainant does not go there, nor make any personal inquiries, but acts upon the offer communicated from Kellam.