Jamison v. Glascock

• Decision Date: 31 October 1859
• Citation: 29 Mo. 191
• Parties: JAMISON, Plaintiff in Error, v. GLASCOCK, Defendant in Error.
• Court: Missouri Supreme Court

29 Mo. 191

JAMISON, Plaintiff in Error,

v.GLASCOCK, Defendant in Error.

Supreme Court of Missouri.

October Term, 1859.

1. A person standing in a fiduciary relation to another will not be permitted, in the management of the property committed to his charge, to derive an advantage at the expense of his cestui que trust.

2. This rule applies to the case where a person, in whose favor another has confessed a judgment, accepts a power of attorney constituting him an agent of the latter to dispose of certain lots and parcels of land, and then has an execution issued upon the judgment by confession and levied upon those lots, and purchases the same himself at the sheriff's sale.

Error to Ralls Circuit Court.

This was a suit in the nature of a bill for the redemption of mortgaged property. The plaintiff, John Jamison, prays an account and a decree for a reconveyance of the property alleged to have been acquired and held in trust. The facts as they appeared in evidence are substantially as follows: John Jamison, plaintiff in this suit, was collector of the county of Ralls. French Glascock, the defendant, was one of the securities on the official bond of said Jamison. Jamison being a defaulter, Glascock assumed the indebtedness of Jamison to the county, amounting to $608.82, and gave his own bond, with securities, to the county for that sum, the county releasing Jamison. This bond or note of Glascock was dated August 27, 1849. On the 28th of August, 1849, Jamison confessed a judgment in the Ralls circuit court in favor of Glascock for $608.82. The written statement made by Jamison upon which judgment by confession was rendered stated the indebtedness to be “for so much money by the said Glascock assumed for me to the county of Ralls, and paid off by his bond and security, which the said county accepted, and discharged the judgment held by said county against me.” The bond given to Ralls county has been fully paid and satisfied--Glascock paying one hundred dollars on August 30, 1849, two hundred dollars on January 1, 1850--and Jamison paying the balance, three hundred and twenty-six dollars, on June 6, 1850. Jamison went to Texas in the year 1850. Before he left, he executed a power of attorney dated June 12, 1850, to the defendant Glascock and others, constituting them attorneys in fact to collect and receive all debts, dues and demands due to said Jamison, and empowering them or any one of them to sell and convey certain real estate, therein described, situate in Ralls and Marion counties. On the 16th of September, 1850, at the instance of said Glascock, an execution was issued upon the judgment confessed in the Ralls circuit court. This execution was directed to the sheriff of Marion county. This execution was levied on the 8th of February, 1851, upon certain lots belonging to said Jamison in the city of Hannibal. These lots were embraced within the power of attorney given by Jamison to Glascock and others. At the sheriff's sale, March 12, 1851, Glascock became the purchaser of said lots, seven in number, for the sum of one hundred and seventy-five dollars, of which one hundred and sixty-five dollars and eighty-eight cents were credited on the judgment. In the year 1850, one Losey, under a judgment before a justice of the peace in favor of said Losey and against said Jamison, had levied upon five of said lots, and had bid off the same for three dollars and fifty-five cents. On the 21st of September, 1850, Losey, upon receiving the amount of his judgment from Glascock, relinquished his bid. This relinquishment was made to Jamison. Glascock stated to Losey that he was Jamison's agent. One Abner Smith had a mortgage upon the lots in Hannibal for two hundred and six dollars and sixty cents. This mortgage Glascock paid off October 7, 1851, and it was released by entry of record. The transactions had by Smith with Glascock were had with him, as Smith testified, in the capacity of agent of Jamison. Glascock had sold all but one of said lots.

The plaintiff asked the court to declare the law of the case as follows: “1. If it appears from the evidence in the cause that the plaintiff (Jamison) gave to the defendant (Glascock) the judgment by confession given in evidence for six hundred and eight dollars and eighty-two cents, to indemnify the said defendant as to his liability for that amount as security for said plaintiff in his bond as collector of the revenue in and for Ralls county, Missouri; and that it was then understood and agreed by and between said plaintiff and said defendant that said plaintiff, intending to leave the state soon thereafter, should give the defendant a power of attorney authorizing him to settle up plaintiff's business and sell the real estate now in question, and that in pursuance thereof plaintiff gave defendant the power of attorney read in evidence, and defendant accepted the agency and trust created thereby, and that said defendant, instead of selling and disposing of said lots under said power of attorney, sued out an execution on his said judgment and caused the same to be levied on and sold under said judgment and execution, and bought them in at greatly less than their value--all after plaintiff had left the state, in the absence of plaintiff and without any notice to him--then the finding should be for the plaintiff. 2. If the defendant [plaintiff] confessed the said judgment in plaintiff's [defendant's] favor in consequence of an agreement between the plaintiff and the defendant to the effect that the judgment should be an indemnity to the defendant as to his liability as plaintiff's security in the bond as collector, and for no other purpose, then the said judgment was in the nature of a mortgage, and the lots purchased under the same and bought in by defendant are subject to redemption by the plaintiff, and the finding should be for the plaintiff.”

The court refused so to instruct or declare. The plaintiff thereupon took a nonsuit, with leave, &c.

Porter & Harrison, for plaintiff in error.

I. Glascock being appointed and having assumed to act as agent for Jamison, in 1850, in taking care of and selling the lots in question for Jamison, he can not be permitted to so use his judgment by confession as to sacrifice his principal's interests to his own advantage. Standing as he did in a fiduciary relation to said Jamison, all the benefits of the redemption from Losey's execution and sale of said lots, after the reimbursement of his advances and payments for Jamison, enure to Jamison. The court should have declared the law to be as assumed in plaintiff's first instruction. (See Story on Ag. § 210, 215; 1 Story Eq. 321; Jeremy Eq. 395; Hill on Trustees, 157, 535.) The fact that Glascock was a judgment creditor made him none the less an agent and trustee. The fact of the parties assuming the fiduciary relation towards each other, which they did in 1850, imported an agreement that Glascock should pursue that course which would be most promotive of and least prejudicial to Jamison's interests. Equity will imply such an agreement as in point of fact was undoubtedly made in this case.

Pratt & McCabe, for defendant in error.

I. The court properly refused to declare the law as prayed. The judgment by confession was not to secure against a contingent liability, but to satisfy, so far as the plaintiff's property would go, a debt which the plaintiff owed the defendant. In the power of attorney no allusion is made to the debt, which plaintiff says was secured by the confession of judgment. The judgment under which the sales were made was totally disconnected with the objects which Jamison had in view when he created the pretended agency, and as a consequence no trust could arise. The confession of judgment gave Glascock a lien on the real estate of plaintiff, and even if a subsequent arrangement had been made between the...