31 Ky. 391 | Ky. Ct. App. | 1833
delivered the Opinion of the Court.
Colonel Knox, as patentee, owned two tracts of land in the state of Ohio — one of two thousand, the other of seven hundred acres. He was entitled to one thousand six hundred twenty eight acres and two thirds, in land warrants, as a balance due him for bis services in the revolutionary army. He employed Taylor, the plaintiff in error, to take care of the two tracts, to pay taxes on them, and on other lands which he owned in Ohio.
In 1821, Knox filed his bill against Taylor, praying for an account of all his transactions as agent, and claiming the moiety of the two warrants, or the half of the proceeds of the sale of the land which had been secured in virtue of said warrants.
Taylor, in his answer, claimed the whole of the warrants, or land secured by them; and exhibited his accounts of the sales of the two tracts aforesaid, from which it appears, that he owes a balance to the representatives of Knox.
There are but two questions of consequence presented by the record.
First. Is Taylor entitled to the whole of the two land warrants ?
Second. Is Taylor chargeable with interest on the funds of Knox in his hands ? and if he is, from what time should interest run ?
The circuit court settled both these, questions most unfavorably to Taylor, and he prosecutes a writ of error.
The parties differ very widely in their statements, and much is left to be determined by inference from facts, there being very little direct evidence bearing upon the controversy.
As to the first point — Knox alleges, that he assigned the land warrants to Taylor, to hold a moiety for his own use, and the other moiety in trust for the use of the assignor. Taylor denies this, and says he was entitled to a moiety of the warrants for his services in procuring them, and that he purchased the other moiety at thirty three and one third cents per acre, and paid for them in money advanced to discharge taxes.
Knox moreover contends, that the transfer and assignment of the whole of the warrants ought not to
The following facts are indisputable, and upon them the right of Knox to an interest in the warrants must depend, if he has any.
On the 28th of March, 1807, Knox ássigned to Taylor half the warrant for eight. hundred eighty pight acres and two thirds. On the 6th of January, 1833, he assigned the other half. On the 13th of January, 1818, he assigned the whole of the warrant for seven hundred and forty acres.
Tiie entry qn the warrant for -eight hundred eighty eighfand two thirds acres was made on the 16th of May, 1808. A survey was executed thereon, on the 11th of June, 1808; but this survey was not examined and recorded in the principal surveyor’s office, until the -3d of July, 1820.
The assignment of each warrant purports to be for value received, and is without any condition upon the face. The assignment of the half of the warrant for eight hundred eighty eight and two thirds acres, dated 28th of March, 1807, is for an equal, moiety of the warrant “with an equal interest in any survey that shall or may bq made on the said warrant, and-requests that a patent, or patents, may issue in the-joint names of myself and said Taylor.” TJie assignment of the other half is in these words : “ I do assign over to James Taylor, within mentioned, the other half of the within mentioned warrant, and request that a patent may issue to him, his heirs or assigns, for the whole, amount of the said Warrant, for value received.” To which there are two subscribing
It remains to enquire into the alleged fraud ; and upon this ground it seems the circuit court based its decree.
If, as Taylor states, he made a verbal contract for Knox’s half of the warrant of eight hundred and eighty eight acres and two thirds, in the latter part of 1801, or early in the vear 1808, which was afterwards consummated by the assignment dated 6th of January 1813, there is no foundation for the imputed fraud. But of the existence of any such verbal contract there is no proof, other than the statement of Taylor. It is true, at that time Knox was indebted to Taylor, for advances in paying taxes, and it is probable that he might have discharged the debt by selling the warrant, as Taylor avers that lie did. This however, is mere conjecture, and will not authorize us to conclude, that the assignment of half the warrant, in 1813, was the consummation of a previous verbal contract. In determining, therefore, whether a fraud was practised bv Tavlor, the circumstances existing on the 6th of January, 1813, must be considered, and the parties must be looked upon as contracting on that day. Tavlor admits that his agent, Eubank, in 1810 and 1812, sold one or two small tracts out of the survey of eight hundred and eighty eight acres and two thirds, for about two dollars per acre, in property, upon long credits ; but lie does riot admit or deny, that he was informed of those sales before the assignment of
We think tiie circuit court erred as to the measure of Tax lor’s liability for the half of the warrant for eight hundred eighty eight- and two thirds acres. That court took two dollars per acre as the criterion-, because Taylor sold the land for that in trade. Wé know it has been decided by this court, that if a vendee loses land which he lias paid for, in trade, he shall recover of the warranting vendor, not the cash value of the property paid, but .the estimated price of the property.. This rule, if invariably applied, may work great injustice. Á- is willing-to give B a horse for a hundred acres of land. B is willing to take the horse for the land, and lets A price the horse at a hundred, or a thousand dollars, provided the land is estimated as high. Such a‘bargain is in truth an exchange of one thing for another, and in which the estimated price is a matter of no importance. In case the title fails, A should only recover the true value of his horse, or of the land lost ;■ and there would be no propriety in estopping the parties by the agreed price, if it had not been so decided.. Now parties may fix prices with a view to the decision. If that is done, the rule is fair ; but where that is not done, the rule may operate very unjustly. This rule, however, does not apply be
As it respects the warrant for seven hundred and forty acres, assigned in 1818, we have been unable to find in the record, any fact or circumstance from which it can be inferred, that Taylor took advantage of the ignorance of Knox, and concealed important facts which he ought to have made known, for the purpose of procuring the assignment. The contract for that warrant must be regarded as made in 1818, and is unimpeached by any thing exhibited. Consequently, it should be permitted to stand, and Taylor should be compelled to account for one half of the value of the warrant, with interest there
We think it sufficiently appears, from all the circumstances, that Taylor was to have half the two warrants for his services in procuring them. This seems to follow from the fact that Knox, in 1807, assigned Taylor half the warrant for eight hundred eighty eight acres and two thirds, while he retained the residue; thereby shewing that Taylor’s title to the half was then complete. As it does not appear, except from Knox’s statement, denied by Taylor., that the latter was bound to incur the expense of locating, surveying and carrying into grant the amount of both warrants, in consideration of the half assigned to him, we have deemed it right to charge Knox for these things so far as the half of-the warrant for eight hundred eighty eight and two thirds acres is concerned. But no such expense must be charged against Knox for the warrant of seven hundred and forty acres, the assignment of that being permitted to stand. It is obvious that Knox, when he assigned his interest in these warrants, was desirous to dispose of his lands in Ohio by sale. It is therefore highly probable, that he would be anxious to sell his warrants, without incurring the expense of locating, surveying &c. We look upon the transfers as absolute sales, and so intended to be, and have only thought proper to interfere to set aside the assignment of 1813, because Taylor did not make known the facts, which we are bound to presume were within his knowledge, and which, if communicated, would, or might have had an important influence over the conduct of Knox in making the contract.
Upon the point relative to interest, it is our opinion, that Taylor should be compelled to pay it, but, that it ought not to be compounded upon him. As a mere depository, Taylor would not be answerable for interest. As an agent, selling land and receiving money for his principal, he would not be answerable for interest, provided he had made no use of his principal’s money. But here Taylor acknowledges, that although he made no particular loan or purchase with 'the money of Knox, “ he may have sometimes used the money as his own.
Taylor made advances for Knox in paying taxes. He should be allowed interest on his advances from the times they were made up to the time when the funds of Knox, received by him, were sufficient to extinguish the advances so made and the interest thereon.
Taylor’s reasonable charges and commissions should be deducted from the- amount of money collected for the sales of Knox’s lands, and the balance left should carry interest. This was not attended to in the adjustment of the accounts which was made the basis of the decree. We see no proof in the record which shews how much Taylor ought to be allowed for his services.
It may be asked, why we allow interest on the value of Knox’s half of the eight hundred eighty eight acres and two thirds of land and seven hundred and forty acres warrant, seeing that the value has never been liquidate! between the parties by any ascertained contract? The principle on which it is allowed may be found in Sanders vs. Vance, 7 Mon. 213. There it is said that the jury may, in trover, give damages- “equal to the value of the thing converted and interest.” Now, as the assignment of the half of the eight hundred eighty eight acres and two thirds, executed in 1813, has been disregarded upon the principle of svppressio veri, and Taylor had no right under that contract to appropriate the land to his use, but did it, we see no reason why the measure of bis responsibility should not be the same as if it had been a chattel which he had converted. - According to the evidence, thirty three cents and a third was a fair price, per acre, for the half of the warrant for seven hundred and forty acres Taylor says the price was liquidated at that. We shall so take it, and direct interest to he allowed on one hundred twenty three dollars thirtv three cents afid a third, from the 13th of January, 1818, when the warrant was assigned, up to the time of rendering the decree, as the measure of recovery for Knox’s half of the seven hundred and forty acres warrant.
On the return of the cause, the circuit court will appoint a commissioner to state the accounts, and to receive proof; and will take such other steps as may be proper to decide the controversy in conformity to the principles of the foregoing opinion.
Decree reversed, with costs.