Roller v. Spilmore
13 Wis. 26
Wis.
1860
Check Treatment

By the Court,

Cole, J.

This is an appeal from .an order overruling a demurrer to the complaint. On the argument *30we were given to understand, by the counsel for the respon- . dent, that notwithstanding the circuit court was with him, and adjudged the complaint good, yet the complaint had been so amended as to make our decision upon this demurrer, even if adverse to him, of but little practical importance, and therefore he declined arguing the case here. Under these circumstances, since our decision will mainly affect only the costs upon the appeal, we do not feel called upon to enter upon any particular examination of the various allegations of the complaint. We will simply state that in our judgment the demurrer was properly overruled. The. complaint does allege that the appellant obtained the land mentioned therein while acting as agent and trustee for and on behalf of the infant children of Michael Spilmore. If such is the case, he cannot be permitted to retain the avails of that property obtained thus in a fiduciary capacity, for his own use and benefit. Eor “ it is a settled principle of equity, that where a person undertakes to act as an agent for another, he cannot be permitted to deal in the matter of that agency upon his. own account and for his own benefit. And if he takes a conveyance in his own name, -of an estate which he undertakes to obtain for another, he will in equity be considered as holding it in trust for his principal. Parkist vs. Alexander, 1 Johns., Ch. R., 394; Lees vs. Nuttall, Taml. Rep., 282; same case, 2 Mylne & Keen, 819. More especially in a case where he assumes to act as the agent and protector of the rights of infants, and in that character obtains a conveyance in his own name, which was intended for their benefit, will he be considered as holding the legal title in trust for them.” Sweet vs. Jacoclcs, 6 Paige, 364. We cannot perceive why the above remarks of the chancellor are not strictly and precisely applicable to the case disclosed in this complaint. The counsel for the appellant attempted to distinguish this case from that of Sweet vs. Jacoclcs, but the principle of that case applies fully and squarely to the facts of the case at bar, and is decisive of it.

The order of the circuit court overruling the demurrer is affirmed.