Wright . Smith.

named in the two deeds from Ackerson and Howell. This sum of $11,000 was paid to Smith by Wright, as follows: $3000 in previous cash payments, as already stated; $2000 by assuming a mortgage of that amount on the Howell farm, and the balance, of $6000, by bond and mortgage to Smith, payable in installments of $2000 each, the first to be due May 5th, 1871.

Wright had not seen or in any way communicated with either Howell or Ackerson, but relied upon Smith to make the best terms he could, both as to prices and cash payments, and believed that he had done so, and that he had paid the sums named in the deeds, till in May, 1871, when he learned from Howell that instead of $7000 for his farm, Smith had paid him but the value of $5500, and none of it in cash. This led him to Ackerson, from whom he learned that instead of $4000 for his land, Smith had paid him but $1178, onehalf of it in cash and the other half by a note payable in one year and eleven months. The consideration of $5500 was made up by executing a mortgage on the premises for $2000, and by conveying two lots in Newton which Smith had been seeking to sell. These lots he claims to have been worth $1500 over and above their encumbrance, but it is proved that the lots were taken by Howell, through his agents, for $3500, and it is further proved that the latter sum was a large price. The result of the whole is this: Smith received from Wright, in cash, $3000, and paid out in cash $589. He bought both properties for $6678, and passed them over to Wright for $11,000.

The object of the bill is to bring Smith to account, and to have the mortgage adjusted to what shall be found due. It calls for an answer without oath. The answer, though under oath, must therefore be treated as if it were not. But if it were evidence, its allegations so far as they deny the material matters of the bill would not be of the slightest avail. The evidence that Smith acted in a fiduciary capacity in making the purchases is superabundant and overwhelming. His letters, of which seventeen were produced, establish it beyond VOL. VIII.

Wright v. Sn ith.

doubt. They carefully avoid any statements of what he was to pay, and are evidently drawn with studied care, evincing a purpose to make Wright believe he was buying for him as advantageously as he could, without saying so in terms. He received letters from Wright in large numbers, which upon the hearing he declined to produce, though requested and duly notified to do so. Their contents, as otherwise proved, are of the strongest character possible to show the relation of confidence existing between the parties. The whole conduct of Smith in originally proffering his services as a friend when informed by Wright of his wishes; imposing reticence on Ackerson and on Wright; causing fictitious considerations to be inserted in the deeds which he took; the fact that no arrangement or bargain was made, or is pretended to have been made, between Smith and Wright as to the price between them; and the manifest assumption on Wright's part that he was giving what Smith gave-an assumption which Smith knew Wright was acting on as certainly as he knew it to be false; are all in keeping with the letters and other facts of the case. It is true that the complainant was aware that in dealing with Howell, Smith was to turn in the two Newton lots, and was willing it should be done, but they were to be appraised at a just and reasonable price. He trusted implicitly in the defendant, because he had previously known him and done business with him while filling an honorable official position. But one view, I think, can be taken of this case. It is an instance of singular confidence on the one side and flagrant abuse of it on the other.

It is admitted in the answer that the complainant made known his wishes and plans to the defendant, and told him how far he would be ready to go as to prices, but it is denied that the defendant agreed to act as agent or to buy the premises in trust. He says he may have told the complainant, and he thinks he did, that he could buy for less money than complainant could, but he did not agree to act for him or incur any responsibility on his account; that the complainant was a stranger, of whose pecuniary means he had no assur

Wright v. Smith.

ance, and that he looked upon him as a sort of adventurer of doubtful responsibility; that as he had named the prices he was willing to pay, the defendant had made up his mind to ascertain from the owners what the lands could be obtained for, and concluded (if he could purchase them at prices which in his opinion it would do to hold them, and could turn in, in exchange, the town lots he held,) to obtain the same, and take his chances of selling to the complainant, and of getting payment enough to justify him in letting him into possession.

It is plain, from the answer itself, that the parties were not dealing at arm's length. But without holding that the answer alone shows the defendant to have been incapacitated from buying at all, except in trust for complainant, it is sufficient. that whatever the answer alleges at variance with the gist of the bill, is thoroughly refuted by the defendant's letters, by his conduct, and by the testimony in the cause. From the evidence generally, as well as from his letters, he clearly appears to have understood that the true particulars of the transaction would not bear the light. His apparent mistake was in supposing it at all more defensible on legal grounds than on moral. That he was not formally constituted an agent, with authority to bind the complainant, or that his agreement to act for him was not formally made, are points which, if true, are of no sort of importance. Nor is it important that no agreement was made to compensate him for his services. It is sufficient that he accepted and held a situation of trust in reference to procuring the lands. Every man has a trust to whom a business is committed by another. Every man is a trustee whose office is to advise or to operate, not for himself, but for others. The principle is general that a trustee, so far as the trust extends, can never be a purchaser of the property embraced under the trust without the consent of all the persons interested. The rule extends to all cases in which confidence has been reposed, and applies as strongly to those who have gratuitously or officiously undertaken the management of another's property, as to those who are

Wright . Smith.

engaged for that purpose, and paid for it. Rankin v. Porter, 7 Watts 387, 390; Fox v. Mackreth, 1 Lead. Cas. in Eq. 92; Keech v. Sandford, Ibid. 36.

It is superfluous to cite authorities for these familiar and salutary doctrines. They stand on the plainest dictates of conscience, and are essential to the maintenance of honorable business and of society among men. The transaction in this case is one not to be endured. It must be regarded as fraudulent, and be decreed to be reformed.

The complainant, before bringing his suit, made a tender to defendant of $2000, in satisfaction of the mortgage. This amount was in considerable excess of what was thought to be due upon an accurate accounting, but the excess was volunteered to meet any claims for commissions or services. This tender was refused. The complainant now proffers in his bill to pay defendant all moneys expended by him in the purchase of the lands, and all interest accrued, together with a reasonable compensation (if it should be deemed equitable and just that he should be paid anything) for his services in making such purchases. In view of all the facts of the case, the defendant is entitled, in my judgment, to no allowance for commissions or services. The advantages he derived from a sale of his lands at a large price, and for cash, he has already secured. These he can keep, but no others can be properly allowed. The net value of the lots conveyed by him to Howell, over and above the encumbrance, must be allowed at $3500. To this must be added the $1178 which he paid, or is bound for, to Ackerson, together with his actual disbursements for conveyances, or other expenses for work done or materials furnished in the business. Interest to be also allowed upon the several items from their dates. He is to be charged with the sum of $3000, paid him at different times by the complainant on account of the purchases, with interest from the delivery of the deed of conveyance from the defendant to Howell. The resulting balance will be the true amount due the defendant on complainant's mortgage. Upon pay

Jones v. Adams.

ment of this balance the mortgage and bond secured by it should be given up to be canceled.

In accordance with the above, I respectfully advise a decree, with costs to be taxed.

JONES vs. ADAMS and others.

1. The evidence in this case held not sufficient to show fraud and avoid certain assignments charged to be without consideration, and fraudulent and void as against the complainant.

2. But one of the mortgages assigned being for a greater amount than was given for it by the assignee, and the circumstances being suspicious as to the fairness of the transaction, the assignee was decreed to assign it to the complainant on his paying the amount of the securities given in exchange for it.

The cause was heard upon the pleadings and proofs, before the Vice-Chancellor.

Mr. Coult, for complainant.

Mr. Hamilton, for defendant.

THE VICE-CHANCELLOR.

The complainant is a judgment creditor of the defendant, John B. Adams, holding against him two judgments, amounting together to about $1000, and has filed this bill to have the judgments satisfied out of two certain mortgages made to Adams, and now held by his assigns. The leading facts are these: Adams purchased, in 1866, a hotel property in Branchville, in the county of Sussex, and kept an inn there till January, 1870, when he sold and conveyed the premises and furniture for the sum of $7500, being then indebted to complainant. Part of this price was settled by promissory notes, part by the assuming of encumbrances on the property, and