8 Mich. 433 | Mich. | 1860
The evidence offered by the plaintiff was improjjerly refused by the court. It appeared inferentially from the evidence which had already been given, that the defendant had accepted and recognized the power of attorney, and that he had, in effect, assumed to act as the agent of the plaintiff; and the plaintiff offered to show that he had fully and in fact recognized the agency, and induced the plaintiff to place confidence in him, as such. In that confidential relation he was bound to the utmost degree of good faith, - and had no right, while professing to act in that capacity, to make himself the agent of other parties for the purchase of the lands he was authorized by the plaintiff to sell; nor to take any advantage of the confidence his position inspired, to obtain the title himself. Nor could he make a valid purchase from his principal, while that confidential relation existed, without fully and fairly disclosing to his principal all the propositions he had received, and all the facts and circumstances within his knowledge, in any way calculated to enable his principal to judge of the propriety of such sale.
By his agreement with Wilkins and others in London, which appears to have been read in evidence without objection, it clearly appears that the defendant violated his
The deed being thus obtained, the land in equity and good conscience, as between the plaintiff and the defendant, still belonged to the plaintiff; or, to express the same idea in the more formal and technical language of a court of equity, the effect of the transaction was to place these lands in the hands of the defendant, subject to a trust in favor of the plaintiff, by operation of law; such being
This species of trust may always be proved by parol, notwithstanding the statute of frauds. Ii this could not be done, the statute, which was intended to prevent fraud, would itself become the most efficient protection to fraud ever contrived by human ingenuity: — See Hill on Trustees, 166; 1 Hovenden on Frauds, 471, and cases cited; Jenkins v. Eldredge, 3 Story, 181; Cox v. Cox, 5 Rich. Eq. R. 365.
But the plaintiff is not here seeking strictly to enforce a trust, and I refer to this doctrine of trusts only for the purpose of showing that the land in equity and good conscience still belonged to the plaintiff, after the execution of the deed; and if so, the money which the defendant afterwards received on the sale of it must also belong to him ex equo et hono.
But the plaintiff, to sustain his count for money had •and received, and to show that money had come to the hands of the defendant which, of right, belonged to the plaintiff, further offered to show that the London parties, having failed to carry out their written agreement with the defendant, he, the defendant, in August, 1853, with, out the knowledge or consent of the plaintiff, actually sold these lands to one Henry Weld Fuller, subject to the mortgage from defendant to plaintiff, for the sum of fifteen thousand dollars in cash, which was 'paid to the defendant; the purchaser undertaking to pay off the plaintiff’s mortgage of twenty thousand dollars; thus making the real purchase price thirty - five thousand dollars, of which, -putting the transaction upon the ground of an agency on the part of the defendant, the plaintiff had received two thousand, and a mortgage for twenty thousand, leaving a balance due him of thirteen thousand dollars.
As the plaintiff, therefore, could not avoid the sale by a bill in chancery, and as his only remedy there, upon the facts offered to be shown, must be confined to the purchase money, he brings his action for money had and received for the balance of the purchase money, thirteen thousand dollars, in the hands of the defendant; thus affirming the deed to Fuller, the defendant’s agency in the sale, and- his own deed to the defendant. But this no more affirms or admits that the money received for the property belongs to the defendant, than a plaintiff admits the same thing in the ordinary case of waiving a tort and suing for the proceeds of the property wrongfully sold.
The plaintiff, therefore, does not seek to show the fraud of the defendant for the purpose of avoiding any deed: and the cases cited from New York and some other states, to the effect that fraud of this kind can not be shoAvn at law to avoid a deed — a doctrine which I think may well be doubted under our statute (Comp. L. §4327; see 2 Pars. on Cont. 280) — have no application to the present case.
The plaintiff does not sue upon any parol contract required by the statute to be in Avriting, nor upon any express contract whatever; but upon one which the law implies from the equities of the whole case; or rather, upon a duty on the part of the defendant, which the law recognizes as springing from the whole transaction. Nor is the action brought to recover back the consideration
The statute relied upon, and which requires certain estates and interests in lands, and express trusts relating thereto, to be created or declared by deed, was fully complied with in the present case: — Van Alstine v. Wimple, 5 Cow. 162. This statute has no reference to an action brought for the price of land, nor does it in any way operate to exclude parol evidence in support of such action, which may still be maintained by such evidence, though the deed acknowledge the receipt of the consideration : it is in this respect but a receipt, and only prima facie proof of payment of the consideration: — 1 Phil. Ev. by Cowen, Hill & Edwards, 477, n. 131, and cases cited. The legal effect of the deed as a conveyance, which is its real purpose, is not altered by parol proof in such cases; nor is it any more altered or- affected by the like proof in the case before us.
We must consider this case, upon the evidence offered by the plaintiff, as falling substantially within the ordinary rules applicable to actions brought by a principal against his agent for money received by him on the sale of his principal’s property. To hold otherwise would be to sanction the doctrine that an agent may, at any time, get rid of his obligations to his principal by his own fraud, and that he may set up this fraud in bar of his principal’s right to the proceeds of his own property.
We understand the law to be well settled, that the action of assumpsit for money had and received is essentially an equitable action, founded upon all the equitable circumstances of the case between the parties; and if it appear, from the whole case, that the defendant has in his hands money which, according to the rules of equity and good conscience, belongs, or ought to be paid, to the plaintiff, he is entitled to recover. And that, as a general rule, where money has been received by a defendant under any state of facts which would, in a 'court of equity, entitle the plaintiff to a decree for the money, when that is the specific relief sought, the same state of facts will entitle him to recover the money in this action. We do not mean to say there are no exceptions to this rule, standing upon some rule of policy or strict law, in peculiar cases; such as money wrongfully recovered upon a judgment which remains unreversed (as in the case of Moses v. Macpherlan, 2 Burr. 1005), or where there is a special agreement still open and unperformed. But we are aware of no such exception applicable to a case like the present: nor can we discover any plausible reason why it is
That such is still held to bo the equitable nature of this action, might be shown by a very long list of authorities both in England and in this country; but we cite only the following as illustrating what may be considered an almost unbroken series of judicial decisions: — Abbotts v. Barry, 2 B. & B. 369; Hill v. Perrott, 3 Taunt. 274; Kelley v. Solari, 9 M. & W. 54; Wiseman v. Lyman, 7 Mass; 288, 289, (where the nature of the action is very fully explained) Hess v. Fox, 10 Wend. 436; Eddy v. Smith, 13 Wend. 488; Mowatt v. Wright, 1 Wend. 360 (which like Hess v. Fox, confirms Moses v. Macpherlan as to the equitable nature of the action); Weeks v. Hunt, 13 Vt. 144; Scott v. Williamson, 11 Shep. 343; Beardslee v. Horton, 3 Mich. 560.
That this action lies, and all these equitable considerations apply, as well where the money has been obtained by fraud as by other means, see Litt v. Martindale, 36 E. L. & Eq. 424, and Abbotts v. Barry, above cited: and even where money has been received, as here, by the fraudulent procurement of a deed, which is affirmed by the action: — Bliss v. Thompson, 4 Mass. 488; and see Penemore v. United States, 3 Dall. 357.
And the same equitable considerations apply to any defense set up in this action: — Eddy v. Smith, ut supra.
In Wright v. Butler, 6 Wend. 284, it is expressly held
We think all the evidence offered by the plaintiff was clearly admissible. The judgment of the Circuit Court must therefore be reversed, and a new trial granted.