1 W. Va. 256 | W. Va. | 1866
delivered the opinion of the court.
The only question fairly arising in this case, is that of fraud on the part of the appellant. The appellee filed his bill of injunction in the circuit court of Tyler county. The facts in the case are in substance, that Morris, the appellant, in the year 1844 acted as the.general agent of one Lefever, (who left the country in 1843, and had not since been heard of) under whose title the appellee claimed: that in the same year the appellant rented to Varner the tract of 100 acres of land in controversy in this cause and received the rent; that the land was returned delinquent for non-payment of taxes thereon for the year 1845, amounting to 50 cents, and was sold in October, 1845, for that delinquency and purchased by the appellant for his own use and benefit; that he obtained a deed from the clerk and brought ejectment to recover of appellee the land; that judgment was rendered by default; that the land in controversy was sold in the year 1844 or 1845, under a decree of the circuit court of Tyler county, for the debts of Lefever, and the appellee held it as derivative purchaser under that sale. The appellee alleged in his bill, that the action of the appellant in the premises was fraudulent as to him, and therefore the purchase should be held to be for the benefit of Lefever and his alienees, and prayed an injunction to the judgment, which was granted and by subsequent decree, perpetuated.
A trustee de son tort is he, who of his own authority enters into the possession, or assumes the management of property which belongs beneficially to another: Iiill on Trustees, 246, and notes; and he is subject to the same rules and remedies as other constructive trustees; Ibid, 247.
The appellant in his answer states that he assumed the management of the property in controversy, being the relative of Lefever’s wife. lie told the witness, Varner, that he had authority to rent it. He received the rent and disposed of it; he managed, controlled and disposed of other property of Lefever. He said to the witness Doak, that he ■had all of Lefever’s business to adjust. The testimony of
We are of opinion that the appellant was the trustee and agent of Lefever. Having undertaken the management of Lefever’s property, we think he should not have neglected a matter so essential to the interests of his cestui que trust and principal, as the preservation of his right to the land by payment of taxes on it. He should have acted in relation to it with reasonable diligence. 2 Story’s Equity Juris § 1275.
Whether he would be liable in damages for this neglect or not, surely it would be inequitable to permit him to become the absolute owner of a tract of 100 acres of land for the sum of.55 cents, on a delinquency which occurred in the very year in which he was renting it and receiving the rents. Although the fiduciary relation may have ceased at the time of the delinquent sale, yet that sale was occasioned by his wrong, and.he at least should not be allowed to profit by it. 1 Story’s Eq. Juris, § 321-22.
We think the decree of the court below is right, and the same is affirmed.
Decree Affirmed with damages.
