35 Kan. 106 | Kan. | 1886
The opinion of the court was delivered by
This was an action in the nature of ejectment, brought by Charles Hayden against E. D. Rose for the' recovery of lots numbered 100 and 102, on Wisconsin avenue, in the city of Holton. The case was tried before the court, without a jury, and the court made a general finding in favor of the plaintiff and against the defendant, and rendered judgment accordingly; and to reverse this judgment the defendant brings the case to this court.
In the court below the plaintiff claimed to hold the absolute title, legal and equitable, to lot No. 100, and claimed to hold the paramount equitable title todot No. 102, admitting that the defendant held the legal title to that lot, but claiming that the defendant held such title in trust for the plaintiff; on the other side the' defendant claimed to hold the entire title, legal and equitable, to both the lots. The facts of the case appear to be substantially as follows: In September, 1883, Mary_ Dihle owned the patent title to both the lots in controversy, and the plaintiff, desiring to purchase the same, employed as his agents in the negotiations therefor the defendant and J. H. Chrisman, who were partners doing business at Holton, Kansas, as real estate agents, under the firm-name of Rose & Chrisman. Pursuant to this employment, Rose & Chrisman wrote to Mrs. Hihle, and ascertained that her price for the
But can the statute of frauds make any difference? Under the authorities cited by the defendant, plaintiff in error, he claims that it not only can but does. Under such authorities he claims that the plaintiff has no remedy and is pot entitled to any relief. The following are the principal authorities cited by the defendant: 2 Sugden on Vendors, ch._21, § 1, ¶ 15, 8 Am. ed. from the 14 Eng. ed.; 2 Story on Eq. Jur., § 1201a; Bartlett v. Pickersgill, 1 Eden, 515; same case, 4 East, 577, in note to King v. Boston; Burden v. Sheridan, 36 Iowa, 125; Allen v. Richard, 83 Mo. 55; Botsford v. Burr, 2 Johns. Ch. 405; Nixon’s Appeal, 63 Pa. St. 279; Steere v. Steere, 5 Johns. Ch. 1; Perry v. McHenry, 13 Ill. 227; Walter v. Klock, 55 id. 362; Watson v. Erb, 33 Ohio St. 35; Pinnock v. Clough, 16 Vt. 500; Hidden v. Jordan, 21 Cal. 92.
The statute of frauds upon which the defendant relies will be found in §§ 5 and 6 of the act of the legislature of Kansas relating to frauds and perjuries. The statute, so far as it is necessary to quote it, reads as follows:
“Sec. 5. No leases, estates, or interests, of, in or out of lands, exceeding one year in duration, shall at any time hereafter be assigned or granted, unless it be by deed or note, in writing, signed by the party so assigning or granting the same, or their agents thereunto lawfully authorized, by writing, or by act and operation of law.
“Sec. 6. No action shall be- brought whereby to charge a party, . . . upon any contract for the sale of lands, ten*111 ements, or hereditaments, or any interest in or concerning them, . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof) shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.”
The statute relating to trusts and powers, so far as it is necessary to quote it, reads as follows:
“Sec. 1. No trust concerning lands, except such as may arise by implication of law, shall be created, unless in writing, signed by the party creating the same, or by his attorney thereto lawfully authorized in writing.”
The statute relating to conveyances, so far as it is necessary to quote it, reads as follows:
“Sec. 8. Declarations or creations of trust or powers, in relation of real estate, must be executed in the same manner as deeds of conveyance; but this provision does not apply to trusts resulting from the operation or construction of law.”
The principal defect, as we think, in the reasoning of the defendant, is in his not making any distinction between trusts or interests in real estate which are expressly created by the terms of the parol contract itself, and trusts or interests which arise from facts and circumstances which sometimes include a parol contract, but which arise from such facts and circumstances only by implication or operation of lawf and the authorities which he cites are, so far as they are applicable to this case, and so far as they maintain the doctrine which he urges, alike defective; and indeed, we do not think that they truly state the law. The defendant and his authorities also make the mistake of supposing that the statute of frauds may be used as an instrument of fraud. Such was not the intention of the legislature. The intention of the legislature in enacting the statute was to prevent fraud, and the statute should be enforced in its spirit and not merely as to its letter.
The first and leading case upou which the doctrine of the defendant rests is the case of Bartlett v. Pickersgill, reported in 1 Eden, 515, and 4 East, 577; but the authority of that case has been denied, and we think overruled, even in Eng-'-^’ land. It was decided in 1760, and in 1829 it was held, in the case of1 Russ. & M. Ch. 53, that “if an agent employed to purchase an estate becomes the purchaser for himself, he is to be considered as a trustee for his principal.” And this case was affirmed in 1834, in Lees v. Nuttall, 2 Myl. & K. Ch. 819; and this was a case where the agency was created wholly and entirely by parol. In the case of Heard v. Pilley, 4 Ch. Ap., L. R., 548, 552, which was decided in 1869, it was held that'“a contract for the purchase of land made by an agent will be enforced, although the agent be appointed merely by parol;” and in that case Lord Justice Selwyn used the following language:
“I cannot at all accede to the argument urged in reply, that under these circumstances when the agent goes to the principal and says, ‘ I will go' and buy an estate for you/ it is not a*114 fraudulent act on his part afterward to buy the estate for himself and to deny the agency. I think that would be an attempt to make the statute of frauds an instrument of fraud.”
In the same case Lord Justice Gifford used the following-language :
“I cannot help adding, as regards the case of Bartlettv. Piokersgill, that it seems to be inconsistent with all the authorities of this court which proceed on the footing that it will not allow the statute of frauds to be made an instrument of fraud.”
In the case' of Bond v. Hopkins, 1 Schoales & L. 433, which was decided in 1802, the Lord Chancellor uses the following language :
“ The statute of frauds says that no action or suit shall be maintained on an agreement relating to lands which is not in writing, signed by the party to be charged with it, and yet the court is in the daily habit of relieving, where the party seeking relief has been put into a situation which makes it against conscience in the other party to insist on the want of writing so signed, as a bar to his relief.” »
In the case of Cave v. Mackensie, above cited, which was decided in 1877, it was held that—
“A contract for the purchase of land made by an agent in his own name, vests the equitable estate in the principal, and may be established by him against the agent and persons claiming under him, although the agent is appointed merely by parol.”
See also the other English and Irish cases above cited. On the other hand, Mr. Sugden, in his work on Vendors, vol. 2, ch. 21, § 1, ¶ 15, 8th Am. ed., from-the 14th Eng. ed., follows the case of Bartlett v. Pickersgill, and uses the following language :
“Where a man merely employs another person by' parol as an agent to buy an estate, who buys it for himself and denies the trust, and no part of the purchase-money is paid by the principal, and there is no written agreement, he cannot- compel the agent to convey the estate to him, as that would be directly in the teeth of the statute of frauds.”
Upon the authority of Mr. Sugden, and the case of Bartlett v. Pickersgill, Mr. Story, in his work on Equity Jurispru
“It appears to me that here a confidential relation of principal and agent did exist; and that being once shown, it disables the party from insisting upon the objection, that the trust is void, as being by parol. The very confidential relation of principal and agent has been treated as for this purpose, a ease sui generis. It is deemed a fraud for an agent to avail himself of his confidential relation to "drive a bargain,' or create an interest adverse to that of his principal in the transaction; and that fraud creates a trust, even when the agency itself may be, nay, must be, proved only by parol.' Bartlett v. Pickersgill, (1 Eden, R. 515;) S. C. 1 Cox R. 15; 4 East, R. 577n, and Leman v. Whitley, 4 Russ. R. 423, are, I admit, against this doctrine,—not wholly, but to a limited extent; for the latter case excludes a case of fraud. Butthen Lees v. Nuttall (1 Russ and Mylue, R. 53) expressly decides, that if an agent employed to purchase an estate, purchase for himself, and on his own account, he becomes a trustee for the principal. In that case the whole agency and trust was made out b)T parol, and the purchase was from a third person? Carter v. Palmer (11 Bligh, R. 397, 418, 419) goes the full length of the same proposition.”
Also, Mr. Browne, in his work on Frauds, § 96, uses the following language:
“ It seems to have been held that where, in a' case of trust arising upon an agency, the defendant’s answer denied the fact of agency, parol evidence was inadmissible to prove it; but the later English cases favor a contrary doctrine.”
(See also Browne on Frauds, § 84.)
“ Where one person agrees, as agent, to buy land for another as his principal, and does buy it, but takes the title in his own name, this title in his hands stands affected with a resulting trust for the benefit of the principal by operation of law, and the case is not within the statute of frauds, resulting trusts being expressly excepted from the operation of the statute.^
. And Mr. Justice Stephens, in delivering the opiniou of the court, uses the following language:
“The only question presented in this case is, whether or not the statute of frauds is in the way of the specific performance prayed by Mr. Chastain. In the first place, this case was never within the statute of frauds. Thesubstance of the agreement, so far as that particular part of the land to which Mr. Chastain seeks a title is concerned, is that the Smiths would, as his agent, buy it for him. They did, in fact, buy it, but took a title to themselves. This title in their hands was immediately affected with a resulting trust for his benefit by operation of law. Now, a trust raised, or resulting by operation of law, is expressly excepted from the operation of the statute, and this case therefore was not within the statute from the beginning.”
In the case of Wood v.Rabe, 96 N. Y. 414, 425, 426, Judge Andrews, in delivering the opinion of the court, uses the following language:
“There are two principles upon which a court of equity acts in exercising its remedial jurisdiction, which taken together, in our opinion, entitle the plaintiff to maintain this action. One is that it will not permit the statute of frauds to be used as an instrument of fraud; and the other, that when a person through the influence of a confidential relation acquires title to property, or obtains an advantage which he cannot conscientiously retain, the court, to prevent the abuse of confidence, will grant relief. .... The principle, that when one uses a confidential relation to acquire an advantage which he ought not in equity and good conscience to retain, the court will convert him into a trustee, and compel him to restore what he has unjustly acquired, or seeks unjustly to retain, has frequently been applied to transactions within the statute of frauds.”
The defendant also urges, in connection with the statute of frauds and the fact that the plaintiff did not advance the purchase-money, the further facts that the plaintiff has never had the possession of the property in controversy and has never made any improvements thereon. We do not think that these further facts can make any difference. The plaintiff could not have taken the possession of the property until after he had purchased Mrs. Dihle’s title thereto, and he employed the defendant for no other purpose than to assist him in purchasing such title; and it was solely the defendant’s fault that he never obtained the possession of the property. We think that the other facts upon which the resulting trust is claimed are, aside from possession and'improvements, amply sufficient. Even the defendant himself and his authorities would not consider possession and improvements asjof any importance if the plaintiff had advancedNthe purchase-money. The facts that the defendant was the agent of the. plaintiff for the purpose of negotiating for the purchase of the property; that in violation of his agency he purchased the property for himself and took the title thereto in his own name; and the further facts that the plaintiff has elected to treat the defendant as a trustee holding the property for the plaintiff, and has tendered to the defendant the full amount which the defendant paid for the property, and an additional amount sufficient to compensate the defendant for all his services as agent, are, we think, sufficient to entitle the plaintiff to recover. But besides these facts, the plaintiff, as before stated, also had an
Under the facts of this case, as heretofore stated, we think the plaintiff holds the paramount equitable title to the property in controversy, and that the defendant merely holds the naked legal title, and that he holds the same in trust for the plaintiff. Therefore we think the plaintiff is entitled to recover in this action. This renders it unnecessary to consider any of the other questions supposed to be involved in this case. We might, however, say that from a hasty examination of the plaintiff’s tax title, we are inclined to think that it is also good, and with reference to lot 100 is a better title than that procured from Mrs. Dihle.
The judgment of the court below will be affirmed.