Keith v. Kellam

• Citation: 35 F. 243
• Parties: KEITH v. KELLAM et al.
• Decision Date: 05 June 1888
• Court: U.S. District Court — District of Kansas

35 F. 243

KEITH v. KELLAM et al.

United States Circuit Court, D. Kansas.

June 5, 1888

Quinton & Quinton and A. Bergen, for plaintiff.

Rossington Smith & Dallas and John T. Morton, for defendant.

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. Kellam 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 an 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 so rely in ignorance that Kellam was to share in the purchase, and believing that he was caring for his interests. Now, the facts in reference to the relation between these parties are: 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. Their personal relations were friendly and familiar; one addressing the other in their correspondence as 'Dear Ed,' and the other, in response, as 'Dear Morrell.' During all these years complainant had no one to look after this land in Topeka 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 same 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 value; received offers, and promised to forward them. He suggested to 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 not do 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' counsel 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 regarded 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...