Pilkington v. Trigg, 28 Mo. 95

Pilkington v. Trigg

28 Mo. 95 | Mo. | 1859

Soott, Judge,

delivered the opinion of the court.

This case is not affected by the principle that money or property obtained under color of a fraudulent contract may be reclaimed upon the rescisión of the contract by the injured party. We must have an eye to the form of the action in considering the plaintiff’s right to a recovery. The petition alleges that the plaintiff is the owner of and is entitled to the possession of the following specific personal property, viz. : Nine hundred and fifty dollars in specie of the value of $950, which said property is in a bag marked “ B. Pilking-ton or W. T. Phillips.” It is. alleged for the plaintiff Pilk-ington that he was induced by the fraudulent misrepresentations of the defendant Phillips to purchase a book, which was supposed to contain valuable information in relation to the officers of the Virginia line who were entitled to bounty lands from Congress, but which was in reality altogether useless. The plaintiff paid Phillips for the book by drafts on bankers in St. Louis, which were delivered to the defendant Trigg by Phillips for collection, which being collected were placed to the credit of Phillips on the books of Trigg. Pillc-ington, conceiving that he was defrauded, gave notice to Trigg not to pay over the money. At this stage of the transaction, the plaintiff sued the defendants, alleging that he was-entitled to the following specific property, viz., one thousand dollars in gold, of the value of one thousand dollars, which the defendants wrongfully detain from him. The petition having been held bad on demurrer, it was amended as it is first above stated: the plaintiff’s counsel, after the demurrer and before the amendment, having induced Trigg to put nine hundred and fifty dollars in a bag and mark it as is stated in the amended petition.

It would be remarkable if the rights of parties could be made to depend upon contrivances of this kind. This is *99evidently an attempt to sue a debtor of the creditor’s debtor in an ordinary action at law. It is clear from the testimony that neither the plaintiff nor the defendant Phillips had any right to the specific money for which this suit was instituted. Trigg could not make it the money of Phillips by putting it into a bag without his consent; and if he could even do so, on no principle could it be done after the suit was brought, thereby creating a cause of action after the institution of the suit. The doctrine of courts of equity which sanctions the pursuit of a security or its proceeds in the hands of every one affected with notice of the fraud or trust, has nothing to do with this case. The plaintiff has sued to recover specific personal property, and it is clearly shown that he has no title to it. How then can he expect to recover ? The suit was not brought in a manner which admitted the application of any equitable doctrines, even if the case had been one to which such doctrines had been applicable. The action was in such a form that an inquiry into the validity of the sale on the ground of fraud was altogether irrelevant, for even admitting the sale was void for fraud, that would give no title to the specific property sued for. Affirmed;

Judge Richardson concurs. Judge Napton absent.