238
FEDERAL REPORTER.
winding up its business, could be executed, and the seal of the corporation could be used, after the consolidation. It is true .that the statute did not, in terms, as is often done, continue the existence of the corporation to do the acts which are necessary and incident to the winding up of its business, but it did, in terms, declare that the corporation was not extinguished with respect to any demands upon it. The new corporation had a right to require a written assignment of the patents. The old corporation, recognizing this right, charged its officers with the duty of making the title of the new company perfect. and the deed was executed for the purpose of satisfying this just demand, and performing this duty. It would be a narrow adherence to technicalities to say that it was invalid. The facts in regard to patent No. 369,280 differ from those which have been recited in regard to patent No. 274,290, only in the following particulars: Thomas A. Edison, as the inventor, made application for No. 369,280 on February 5, 1880, and, pending the application in the patent-office, assigned his interest in the invention and the patent to the Edison Electric Light Company. On August 9, 1887, before the patent was granted, and after the consolidation, the president and secretary of said old company executed an assignment of said invention in the name of the old company to the new consolidated company. The facts in the two cases have no difference in any vital particular. 'fhe pleas are overruled.
I'TIt re STANGER.' (Di8triot (JO'U'f't,
w: D. Virginia.
September Term, 1887
TRUSTS-RESULTING TnusTs- EVIDENCE.
In 1870 the petitioner's husband surrendered certain land in his schedule of bankruptcy, setting up no claim therein on behalf of bis wife. In 1874 the land was sold for the benefit of the creditors, and she became the purchaser of part of it.· In 1876 he died, and in 1880 she claimed dower, and the same was assigned to her. In 1885 she asserted in this cause a claim to the property by way of a resulting trust, on the ground that the land was deeded to her husband in 1858 by her grandmother, with the distinct understanding that one-half thereof should belong to her, but there is no evidence of any payment by her out of her separate estate, and no of fraud or mistake or contemporaneous agreement is made. Held, not resting the decision upon the question of the admissibility of parol proof. that there is not evidence suffi· cient to show a resulting trust in favor of petitioner. 2
In Bankruptcy. Ohas. A. Rcmald and G. W. kL. Tho8. E. Sullivan, for defendants.
1 Reported by F. T. Barr, Esq., of the Abingdon bar. . ITo establish a resulting trust in realllstate by parol evidence, such evidence must be cleat', 'strong, and unmistakable. P'Pool v. Thomas, (Ky.) 8 S. W. Rep. 198, anll cases .cited in note. .
IN RE STAKGER.
2i>9
PAUL, J. On the petHionofEUen J. Stanger,'the widow of Henry S. Sta.nger,bankrupt. On the'30th day of December,' 1871, Henry S. Stanger, who th,en lived in Montgomery county, Va., was on his petition ,adjudged a bankrupt. In his schedules he surrendered a tract of land lying in Montgomery county, containing 183 acres, it being the moiety of a tract of land conveyed to said Henry S. Stanger and James L. Vaught by a deed made by Jane Barriger, or Barger, as she is called in this proceeding, on the 1st day of November, 1850. In 1874 a decree was entered in this court directing the sale of the 183 acres of land for the benefit of the creditors of the bankrupt, and inDecember, 1874, the land was sold in parcels to different purchasers, the petitioner being one. Under a subsequent order of the court the greater part of the purchasemoney bonds were assigned to persons holding liens against the estate Of the bankrupt. In 1876 Henry S. Stanger, the bankrupt, died. In 1880, his widow, Ellen J Stanger, the petitioner, filed her bill in the circuit court of Montgomery county, Va., praying ,to have dower decreed her in the 183-acretract of land, and on an agreement made with purchasers a decree was entered allowing her to take in 'satisfaction of her dowe:tfive' acres of land in fee-sirllple; and a special commissioner of that 'court, appointed for that made her a deed for the Same. In ,1885 the said Ellen J. Stanger filed her petition in this cause, alleging that she is entitled to one-half of the said tract of 183 acres of land, or the of sale thereof, by reason of a resulting trust therein accruing for her benefit. At the Septemb6r term, 1886, of this court she filed an amended petition, and to the original and amended .petitions the assignee and receiver, T. E. SUllivan, demurred, and filed his answer. The demurrer, being defective in form and substance, must be overruled. The petitioner, in her original petition, claims a resulting' trust in per favor in the tract of land on the ground that, it was the distinct understanding and agreement between the grantor, Mrs. Jane Barger, whG was the grandmother of petitioner,ana the said Henry S. Stanger and Jaimes L. Vaught, the grantee!! in the deed of November 1, 1853, tbat the petitioner was to have one-half of the land conveyed by her said dee<;l to her S. Stanger, and to sustain her claim makes this ,statement: " ,"Jane Barger, the grandmother of petitioner, was on the 1st day of November, U!53; and previous thereto, the owner of a very valuable tract of land lying near the town of BIackaburg,'-in the county of Montgomery. containing - - act'es. Tbe value of this land was estimated at $8.000 by Mrs. Barger; and (Iii the 1st day of November, 1853. she sold said tract of land to Henry S. Stanger. who was the husband of your petitioner, and James L. Vaught. who was the husband of her granddaughter, Virginia Peery, the land in her sale to them at $S,OOO, and conveyed the same to the said Henry Stanger and James L. Vaughtby'deed bearing date NoveII1ber 1, 1853, ofwhicb 8 ,copy !Si herewith flied as apart of this petition. It will be seen from said deed that the ampunt of purchase money to be paid to Mrs. Jane Barger-was by S.Stanger, and two thousll-nd by Henry S. Vaught. At the tIme of said sale the land was valued f:lt $8.000, and the expreSs agreement and understanding between' Mrs. Jane Barger, HenyS. Stanger, and James L, Vaught was that in addition to the $4,OOOexpresRed
240
on the face of the deed, that the sai4James L. Vaught was to pay Mrs. Har· riet Peery, his mother-in-law, and. daughter of Jane Barger, one thousand doUars; Mary Peery, daughter of said Harriet Peery, now the wife of John Lybrook, $500; and $500 to his (Vanght's) own wife, who was a daughter of .3aid Harriet Peery; aU of which the said Vaught paid, together with the two thousand dollars that he was to pay and did pay to Mrs. Jane Barger, making the sum of $4,000 which said paid for one moiety of the land in said deed mentioned. Your petitioner being the only Child of Saml. and Mary Webb, who were ,both dead, her grandmother, the said Jane Barger, at the time of ,the sale of said land had it expressly understood that she, your patiwas to have one-half of the moiety of the land'deeded to her husband in said deed, which the said Jane Barger considered of the value of two thousand dollars, thereby making your petitioner equal with Harriet, Peery and her two daughters, Mrs. Vaught and Mary Peery, now Mrs. Lybrook. Thus it will while James L. Vaught paid $4,000 for one moiety of the land be seen mentioned in said deed, Henry S. Stanger pays only $2,000, which was only half as much as the said Vaught paid, and only one-fourth value of the land; and by the terms of the agreement between the parties when Mrs. Jane Barger made the deed aforesaid, your petitioner was to have one-half of the land which her husband took possession of, to-wit, 183 acres, which was one moiety of the wh91e tract conveyed by Mrs. Jane Barger aforesaid; thereby making your petitioner, whu was the only child of Sam!. and Mary Webb, equal with Mrs. Harriet Peery and her two daughters, Mrs. Vaught and Mrs. Lybrook, thereby creating a l'esulting or express truflt in favor of your petitioner; and she is advisedthat for her protection it was not necessary for the same to be in writing." The, amended petition, after making substantially the same statement as just quoted from the original petition, says: "Thus having pr9vided that one-half of the unexpressed consideration, towit, $2,000, payable by Vaught, should belong to her said daughter Harriet Peery, and the latter's two daughters, Mrs. Lybrook and Mrs. Vaught, Mrs. Barger prOVided that the other half of the said unexpressed consideration, the $2,000 which Stanger was to pay, [in addition to the $2,000 payable by him to the grantor directly,] should belong to his (Stanger's) own wife, the peti· tioner, daughter rand only child] of Mrs. Webb, who was the other of the tWl> said daughters of Mrs. Barger, and this sum, thus having become the money of the petitioner, went to pay and did pay and satisfy to Mrs. Barger one-half of the $4,OUO, which was the actual consideration which was by the agreement of sale to pass from Stanger to Mrs. Barger, his vendor and grantor. for the moiety of said tract of land which was granted to him by Mrs. Barger. to-wit, the said 183 acres of land, with. the brick hOllse thereon; that is, the Slj,id 183 acres of land was purchased by Stanger as to one undivided half thereof with the petitioner's own money, Which was her separate estate, over Which her said husband had, and was intended by the dl>IlQr thereof, Mrs. Barger, her grandmother, to have, no control. . And the petitioner submits that the circumstances of the transaction created a resulting trust on said 183 acres of land in her separate behalf, and that, the legal title to said 183 acres being in her husband, he will. upon equItable principles, which are well settled, and which govern the decisions of this in such matters, be adjUdged to have beld one undivided half of said 183 acres as trustee, for her sole and separate uoe." \ Both in the original and amended petitions the petitioner bases her claim to one-half of the 183 acres of land on this well-established and familiar principle:
BE STANGER.
241
"Where, upon a purchase of property, the conveyance of the legal title is taken in the name of one person, while the consideration is given or paid by another, the parties being strangers to each other, a resulting trust arises from the transar.tion, and the person named in the conveyance will be a trustee for the party from whom the consideration proceeds." Perry, Trusts, § 126. The amended petition was filed after all the depositions taken in the cause had been put in. No additional testimony has been produced. There is no proof to sustain the allegation in the amended petition to the effect that in the contract of sale Mrs. Barger provided that the other half of the unexpressed consideration, the $2,000 which Stanger was to pay, (in addition to the $2,000 payable by him to the grantor directly,) should belong to his (Stanger's) wife, the petitioner; and that this sum, thus having become the money of the petitioner, went to pay and did pay and satisfy to Mrs. Barger one-halfof the $4,000, which was the actual consideration which was by the agreement of sale to pass from Stanger to Mrs. Barger, and that the petitioner having paid for one undivided half of the 183 acres of land, out of money which was her separate estate, has a resulting trust therein to the extent of one-half of the land. This being the only material statement in the amended petition, which is not made in the original, and there being no evidence to sustain it, the amended petition need not be further considered. As to the original petition, the ground on which the petitioner claims a resulting trnst in her favor, is that in the contract of sale there was a distinct understanding and agreement between the grantor and the grantees in the deed of of the land November 1, 1855, that the petitioner was to have which was in said conveyance deeded to her husband. The first question that is presented to the court in this investigation is, can the court, where a deed is in the usual form, the consideration expressed, and tllere is no allegations in the bill of fraud, mistake, or accident, go behind the deed, and inquire whether there was other and additional consideration, to that expressed on the face of the deed? 2 Pom. Eq. Jur. § 1036. Is parol evidence admissible to prove a conside.ation where there is no allegation of fraud, or mistake, or antecedent or contemporaneous contract, different from that expressed in the deed? Parol evidence is clearly admissible to prove a resulting trust; to show from whom the consideration moved. It is clearly admissible where there is any ambiguity in the language of the deed; where there is no consideration, or a nominal consideration, expressed; where there is a charge of fraud, mistake, or accident,-to show the real consideration. But where none oftheaecircumstances occur, and, as in this case, there is no question raised as to who paid the consideration mentioned in the deed, the weight of ,authority is decidedly against the admission of parol evidence to prove a consideration different from that expressed in the conveyance. But the court is unwilling to rest the decision of the questions involved in this cause upon a rule of evidence that will exclude investigation of their merits. Parol evidence is only introduced to establish the claim of the petitioner to a resulting trust in the I83·acre tract of land. "It is settled by a complete unanimity of decision that such evidence must be v.35F.no.4-16
24.2
elear, strong) unequivocal, unmistakable; and must establish the fact of paytrient by the alleged beneficiary beyond a doubt." 2 Pom. Eq. Jur. § 1040. The evidence in,this cause was taken 32 years ,after the transaction which it purports to establish. Itis all taken by the petitioner. After such a lapse 'of time it must come with comparatively little weight. It is all to the same effectj and if we give it full credit it can onlyestablish this fact: that it was understood and agreed by the parties to the contract of sale that one-half of the land granted to the petitioner's husband was to belong to petitioner. There is no evidence that she paid any of the purchase money out of her separate estate; there is no evidence that ahe had any separate property; there is no evidence of any consideration moving from her by which a resulting trust was raised in her favor. "In order that this effect [resulting trust] may be produced, however, iUs absolutely indispensable that the payment should be actually made· by the beneficiary, or that an absolute obligation to pay should be incurred by him,aB part bf the original transaction of pur. chase, at or before the time of the conveyance. No subsequent entirely independent conduct, intervention, or payment on his part would raise any resulting trust." 2 POIn. Eq, Jur.§ 1037. The cases cited in the argument>bycounsel for petitioner, with a view to establishing a resUlting trust in her-favor, are all cases where the consideration was paid bya,person other than the grantee in the deed. Such was the case in Bank v. Carrington, 7 Leigh, 566; Borat v. Nalle, 28 Grat. 435; Smith v. Flint, 6 Grat. 40; 42; Norman v.Cunningham, 5 Grat. 72; Countz v.Geiger, 1 Call, 190;- Be 23 Fed. Rep. 482, (decided in this court· by Judge HUGHES, at the'March termj 1885:) The last case is especially relied bn in the' petition and' by counsel in argument.· The decision in that case restsuppn the broadprlIlCiple that where the consideration moves from one person 'and the legal title is conveyed to another, the person taking the title holds the property intrust for the benefit of the perSon whose money or estate paid for it. In that case it was 'Mrs. Anderson's separate property, her interest in the landed estate of her father, Jacob Kent, deceased, which had been conveyed by her co-heirs,her brothers' and sisters, to GeorgeW. Anderson, her husband. It cannot be pretended that the petitional'" had any separate estate, property, or interest of any kind in the 183' acres of land conveyed to her husband, from which, by operation of the law,a resulting trust arises in her favor. There isno pretense that she was invested with surh separate estate by will, deed, or descent. Such must have been the view of the petitioner .and her husband. ' The husband surrendered the land in bankruptcy in 1870. He surrendered this land in his schedules, and set up no claim on behalf ofhis wl1e to an interest in it. In 1874 the land was sold, and the petitioner became the purchaser of part of it. In 1876 the husband died: In 1880 the petitioner, his widow ,claimed dower in the land, and hadit'Bssigned to her. In 1885, nine years after the disability of coverture is removed, the petitioner asserts herclaim to an interest in the land by way bf a resulting trust. The testimony of the attorney;Charles A.Ronald, who wrote the deed, may here be adverted
:KEITH
v.
KELLAM.
243
to as showing that if an agreement ever existed between the grantor and the grantee, Henry S. Stanger, that the petitioner was tn have onehalf of the 183 acres ofland, such agreement was. by the mutual consent of the grantor and grantee annulled. In answer to the question, "was there anything said at the time of making the said deed about ing this understanding in the deed?" he says, "Yes, sir; I suggested it myself, but Henry S. Stanger rather objected to it, upon the ground that it might injure his credit.. " To this objection the grantor must have yielded, and abandoned the understanding that the petitioner was to have one-half the land, and agreed to the request or demand of Stanger that the deed be made to him absolutely for the whole of the land. It is not at all probable that the scrivener, after what he says about the understanding and agreement that the petitioner was to have half of.the.land. would have neglected to make proper provision in the deed for securing this interest to the petitioner, and have drawn a deed conveying the whole property to her husband,without the consent and direction of the grantor. After a careful investigation of the claim of the petitioner the court is of opinion that there is no resulting trust in her favor in the tract of 183 acres of land surrendered in bankruptcy. by Henry S. Stanger; that the creditors of Henry S. Stanger, bankrupt, are entitled to the proceeds of the the sale of said landj and the petition of Ellen J. Stanger must be di.&missed.
KEITH "'. KELJ.AM
et al.
(Olreuit Oourt, D. KanIa,. June G, 1888.) TBtJST9-CONSrnt1CTIVE-CONFIDENTIAL RELATIONS-PRINCIPAL AND AGENT.
The owner of land, who lived ata distance and had never seen it, left the Iteneral control of it t.o an II-gent for many years, who did everything neces· sary for its management and preservation, but did not have power to sell. the relation of intimacy and confidence existing. The agent. through correspond· ence, procured a sale for the benefit of himself and another, who had knowl· edge of the. facts, without disclosing all the facts calculated to enhance the value then and iu the near future. Held, that the relation was sufficient to charge the agent with full disclosure of all facts touchinA' the land. and. not having.done so. the vendor was entitled to have the sale rescinded, and the title declared to be held in trust for him.!
In Equity. Bill to set aside a Quinton <to Quinton and A. Ber.gen, for plaintiff. Boaaington, Smith &: Dallaa and John T. Morton, for defendant. ,1,A party will not De permitted to purchase property, Bnd hold it for his own benefit, when he has a duty to perform in relation thereto which is inconsistent with his acter as a purchaser on his own account. King v. Remington, (Minn.) 29 N. W. Rep. 1152, and note.· Where an agent takes title to property of his pnncipal, of which he has charge for the . fraud is presumed, and, in order to maintain h1S title!".the agent must show that he has Dot abused the trust reposed in him. I.e Gendre v. Byroee,(N. J.)'14 AU. Rep. 621, and note.
244
BREWER, J. This is a bill in equity, brought by complainant, Morrell C. Keith, to set aside a sale and conveyance of a certain tract of land in the city of Topeka. made on the 28th day of August, 1886, to defendant Cyrus K. Holliday, and to have defendants adjudged as holding the legal title in trust for him. The contention of complainant is that defendant Edward P. Kenam was his agent; that he was a joint purchaser with defendant Holliday, and that, while assuming to act as such agent, he withheld the information which he ought to have given, and thereby obtained a conveyance at less than the real value. The pivotal question is as to the relations of Kellam to the complainant. It is strenuously insisted by the defendants that whatever authority or agency he may have theretofore had in respect to the land was of a limited and special nature; that he was never all agent to sell; that complainant was advised that he expected to have an interest in the purchase, and therefore the parties dealt· rightfully at arms-length. On the other hand, complainant insists that defendant Kellam had acted as his agent in respect to this land for a series of years, that he was the only agent that he had had, and that their relations were such that he had the right to rely upon him, and did sorely in ignorance that Kellam was to shate in the purchase, and believing that he was caring for his interests. Now, the facts in reference to the relation between these parties are these: Complainant had owned the land from 18 to 20 years, but had not been in the city of Topeka, nor seen the land, during that time. Kellam had married the niece of his wife, and had visited in his family as a relative. rrheir personal relations were friendly and Jamiliar; one addressing the other in their correspondence as "Dear Ed," aud the other, in response, as "Dear Morrell." During all these years complainant had no one to look after this land in Topeka except defendant Kellam, and the latter had looked after his interests in the land in all things that have transpired to affect it up to this time. True, being unimproved land, there had not been many things requiring attention. He had paid the taxes on the land for complainant; he had informed complainant that the assessment was too high, and appeared before the county commissioners in behalf of complainant two or three times to have the assessment reduced. He accepted, in behalf of complainant, notice of the laying out of highways, and resisted applications therefor. He notified complainant that a railroad company was seeking a way through the land, and by his instructions made resistance thereto. He settled with the railroad company, signing the receipt for damages, "M. C. KEITH, by E. P. KELLAM, Agent." About 1872 he suggested to complainant the fencing of the land, to which complainant assented. The fencing was done under his superintendence, but paid for by complainant; and thereafter he had the use of the land for the pasture of his own cows as well as of others, collecting pay for .the latter, and appropriating the saIDe to his own use in consideration for the care of the land. He sold a few tree tops cut on the land, and leased four acres for a base-ball ground. He spoke of himself to parties who inquired about the land as the agent, and discussed with them its valuej received offers, and promised to forward them. He suggested to
KEITH V. KELLAM.
245
complainant the propriety of platting the ground, and putting it in his hands for sale. He forwarded a plat of a subdivision that had been laid off immediately adjoining the tract. Now, these things were transpiring from time to time during a series of years. The only person in Topeka to whom complainant looked for the care of this land was defendant Kellam, and the only party there who assumed or appeared to have any control or authority to act for the owner was defendant Kellam. True, he had no authority to fix a price or make a sale, and in the narrow sense of the term he was not an agent to sell, and yet one cannot read the testimony of the relationship of these parties in respect to this land continuing through these many years without being impressed with the conviction that out of that there justly sprang a confidence which imposed special obligations on defendant Kellam. It will notdo to separate these different transactions and say that no one of them by itself was sufficient to establish a confidential relation. Cases are cited by defendants' connsel in which a party was employed to do a special act, as, for instance, the payment of taxes, in which it was properly held that from that alone no confidential relation sprang. The only fair way to'look at it is to take all these transactions in the aggregate, and determine therefrom how each must have rElgarded the other. No one can doubt a moment that complainant looked upon Kellam as his agent in respect to the land, as one who was caring for his interests, as one upon whom he had a right to rely; nor can there be much doubt on the other hand that Kellam during these years felt that he was acting for Keith in the care of this land, and was looking after the protection of Keith's interests. The fact that Kellam had no authority to make a sale, or bind Keith by the acceptance ,of any terms, in no manner dil;lproves the confidential relations which subsisted between the parties. Now, whal is the rule of law applicable to a case of that kind? Suppose a sale is accomplished through the instrumentality of one occupying such confidential relation. Happily the law speaks with no uncertain sound in answer to this question. In letters that are golden, and that shine upon every page, it affirms that one who has established such confidential relations must be absolutely loyal to that confidence. It is not enough that direct misrepre.sentation is avoided. Concealment and silence are fraudulent, and that, too, although they may not be with conscious intent to defraud,-a silence from carelessness and neglect. In the leading case of Miclwud v. Girod, 4 How. 503, the supreme court of the United States discussed at ,some length the matter of transactions by one having confidential relations with a party for whom heaets. I quote from that opinion: "And the rule of equity is, in every code of jurisprudence with which we are :acquainted,that a purchase by a trustee or agent of the particular prop,erty of which he has the sale, or in which he represents another, whether he has an interest in it or not, [per interpositam personam,] carries fraud ·on the face of it." And again: "The general rule stands upon our great moral obligation to refrain from placing ourselves in relations which ordinarily excite a conflict between self-interest and integrity. It restrains ::all agents, public and private; but the value of the prohibition is most
246
felt, and its application is more frequent, in the private relations in which the vendor and purohaser may stand towards each other. The disability to purchase is a consequence of that relation between them which imposes on the one a duty to protect the interest of the other, from the faithful discharge of which duty his own personalinterest may withdra \V him. In this conflict of interest,the law wisely interposes. It does not fict on the possibility that in some cases the sense of that duty may prevail over the motives of self-interest, but it provides against the probability in many cases,and the danger in all cases, that the dictates of self-interest will predominant influence and supersede that of duty." And, once again: "The inquiry in such a case is not whether there was or not fraud in fact. The purchase is void, and will be set aside at the instance of the ceatui qtt(l t1'U8t, and a resale ordered, on the ground of the temptation to abuse, and of the danger of imposition inaccessible to the eye of the court." See, also, 1 Story, Eq.Jur. § 383; 2 Porn. Eq. Jur. § 955 and following. In section 956 the author quotes with approval the language of Lord CHELMSFORD, Tate v. Williamson, L. R. 2 Oh. 55, as follows: · "Wherever two persons stand in such R relation that. while it continUes. confidence is naturally reposed by one, and the inliuence which naturally growl! out of that confidence is possessed by the other. and this confidence is abusl'd. or the influence is exerted to obtain an advantage at the expense of tht! confiding party, the person so availing himself of his position will not be permitted to retain the advantage. althougll the transaction could not have been impeached ifno such confidential relation had existed." Now, can it be doubted that complainant,living at a distance, and for years never seeing this property or the city in which it was located, had a right to rely, and did relJ ,upon defendant, who knew the property and its surroundings, its present value, and all the future prospects; who was his relative by marriage; who had paid his taxes for years, and had looked after every matter affecting the land that had arisen during those years, and who was annually receiving out of the rental of tht- land compensation for such care and watchfulness,-can there be a doubt, I ra'peat, that he did rely, and had a right to rely, upon him as upon one who, having cared for his interests in the past, would do so in the present? Not only is this reliance deducible from and justified by their past relations; its existence is evident also from the tenor of the letters during the negotiations for this sale. In May, 1886, complainant wrote to Kellam, and closed his letter with an inquiry as to what the land could be sold tor. Then, on June 30th, Kellam, at the instance of his co-defendant, opens the correspondence which results in the sale. This correspondence continued, there being some 14 letters backward and forward, to the 20th of September, 1886. It is scarcely necessary to copy these various letters; the perusal of them shows that Keith was relying upon Kellam to protect his interests. Though situated only a day's ride or such a matter from Topeka, and though the transaction was one amounting to 660,000. complainant does not go there, nor make any personal inquiries, but acts upon the ofter communicated from Kellam.
247
The very carelessness in which some of the letters are expressed, and the manner in which the negotiations were ca,rried on, make it apparent that complainant supposed that Kellam was looking after his interests. This, as I said, is the pivota.l question; and yet I think it unnecessary to comment on these facts further. It seems to me clear that complainant did rely, and had arig,ht to rely, upon Kellam as one who was looking after his interests, and that Kellam must have felt conscious of that trust, or, irnot actually conscious of it, was at least bound by it. While at the inception oOhe negotiations he ma.y not have been interested with Hday in the purchase, yet before the contract was finally closed he did become interested, and the purchase was on the joint account of Kellam and Holliday; and while Holliday may not have been possessed with knowledge of all of the relations between Keith and Kellam, yet he knew enough to put him upon inquiry, and that is equivalent to knowledge. So)4e purchase was in fact made by those who stood in confidentialre.lations to the complainant. ,It goes without question, under the testimoriy, that. Kellam did not disclose all the facts within his knowlE!dge 'which would tend to affect complainant's willingness to sell, or the mat.ter of price. Hence, whether the price paid was: adequate or not, colllplainant has a right to rescind the contract. Without entering ticulars, it is enough to say that Kellam did notdiaclose wp,ich were made to him, prices which were put upOlithe land, the bullding o{railroadsinto Tqpeka, which would naturally telld to affect the growth and prosperity of the place, or the speculationiu real estate, which was rapidly devetopirg during that summer. It be t4at, if these facts had beenreporteli, complainant might have declined to sell, or, at least named price. It is certainly suggestive within less that than one mO:t;lth; the purchl,tSers who had paid $60,OOOnallled as selling price. In conclusion let me say that, while I think a rig4t to rescind this contract by reason of the failure 9n, the, part of,his agent, a joint purchaser, to diS'close all facts material to the matter of sale and the question of price, it is also due to the de,feudants that it does pot appear that there was any conllpirac)j between them to defraud complainant, or that they were seeking, to obtain land at than its then real value. They s.tood in the early days of a remarkable real-estate speculation, and they offered and. gave. what was probably an adequate price, seeking only the chances of tliatgrowing sp,eculati()nj but.even that complainant was entitled to, and should have been advised Qfall facta that were known to Kellam throwingUght upon presentvalue or future prospects. Complainant IS entitled to a de.cree in ac.cordance with the terms of his bill. .
248
HUGHES fl. CAWTlIORN. (01,'rcuu Oourt, 8. D. Oalifornia.
January 9,1888.:
BOUND A.n 1Es.:-MONUMENTS-CoURSES AND DISTANCES.
Where there are wclJ-estubl.shed monuments of a boundary, and the line run from the point of beginning by courses and distances does not COD form to one of the natural calis, whereas by starting from the other point all the natural calls are answered. the firb( course and distance from the point of beginning must give way, espeCially when by following it the line is taken out in an open valley w....ere there is DO apparent reason for its frequent chanl!cs of course, but taken tae otborway it runs along the base of mountains, WhlCh render such cl:anges necessarv. 1 .
Ejectment to recover designated lots of land situated in Los Angeles e<;>unty, Cal. Plaintiff relied upon the land being found to be within the boundares of the Tujunga rancho; and defendant resisted plaintiff's elaim on the theory that the land was public land ot Lhe United States, lying norta of the northerly line of the rancho, according to the courses and distancesgi.ven in the patent thereto. Wells, Van Dyke & Lee, for plaintiff. Williams··& McKinley, for defendant.
At Law.
J. There is but a single question in this case, and that relates to the boundaries of the Rancho Tujunga, a Mexican grant, confirmed and patented by the government of the United States. At the trial it was conceded by the respective partie::! that if the land in controversy is to the south of the northerly line oj the rancho, the plaintiff is entitled to recoverj otherwise not. There is no dispute in respect to the starting point of the Tujunga, which is also the third station of the adjoining Rancho Ex-Mission of San Fernando, and is situated at the mouth of a canada on the south base of the San Fernando mountains. From this point of beginning, the line, to the patent, runs along the base of the San Fernaodo mounta:ns a given couri;le and distance to 8 stake station; thence a certain other course. and d:stance to a stake station; Llence a certain other course and distance t,) a stake station; thence a certain other course and distance to a stake station j thence a certain other course and distance to a stake station; thence a certain other course and distance to Ii stake station 011 the south base of a mountain, which point, it is declared, the Tujunga valley, bearing east and west, is about 50 chainswidej thence a certain other course and distance to a stake station; thence a certain other course and distance to "a sycamore six inches in diameter, marked 'T 8 station;'" thence" south 11 0 45' east, eleven chains, to Tujunga creek, 20 links wide, course west, thirtythree chains to a stake station;" thence "south 47 0 30' east, at seven chains, across a dry arroyo, 30 links wide, course west, thirty-seven lTba1i monuments govern courses and distances, see Beaubien v. Kellogg, (Mich.) 37 N. w. Rep. 691, and note.