Murdoch v. Milner

• Decision Date: 31 October 1884
• Citation: 84 Mo. 96
• Parties: MURDOCH, Appellant, v. MILNER.
• Court: Missouri Supreme Court

84 Mo. 96

MURDOCH, Appellant,

v.MILNER.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

REVERSED.

Massey & McAfee for appellant.

(1) Milner was the agent of Murdoch to sell this land; was his agent to pay taxes on same; his agent to protect the interest of his principal of the tax sale on the 29th of May, 1880, and while acting as such agent he bought this land at that tax sale, and being thus the agent of Murdoch, it was a fraud on his part, pure and simple, to take title in his own name and for his own use. The act at once turned him into a trustee ex malificio. Story on Agency, sec. 211, and notes; Squires' Appeal, 70 Pa. 268; Morris v. Joseph, 1 West Va. 256; Krutz v. Fisher, 8 Kan. 90; Blackwell on Tax Title. p. 401, and authorities cited there; Thornton v. Irvin, 43 Mo. 163-66; Hunter v. Hunter, 50 Mo. 445. (2) This land was the subject matter of the agency, and Milner, by reason of this relation of private trust and confidence in relation thereto, was disabled from acquiring, in any manner, any interest in the property adverse to the interest of Murdoch, his principal. He might stand silent at such sale, the only one of all the world debarred from acting for himself concerning said property, and be without blame as an agent, but if he did act, it would be for the benefit of his principal. The authorities before cited, and Gardner v. Ogden, 22 N. Y. 327; Winn v. Dillon, 27 Miss. 494; Bain v. Brown, 56 N. Y. 285; Glumby v. Webb, 44 Mo. 444; Webster v. King, 33 Cal. 348.

C. W. Thrasher for respondent.

(1) Milner & Lisenby, of which firm respondent, Milner, was a member, were not such agents of Murdoch, the appellant, as to impose upon them any obligation to pay the taxes of appellant on the land in controversy, or to bid in said land at said tax sale for appellant, or in any way to protect said appellant against said taxes. Kennedy v. Keating, 34 Mo. 25; Story on Agency, secs. 17, 19, and 126. This view of the case is not onlyfully sustained by the evidence of what transpired between said parties before the time of the sale of the land for taxes as shown by the record, but is confirmed and made certain beyond a reasonable doubt by what took place between the same parties after said sale. (2) The offer of Milner and Lisenby to Murdoch after the sale of the land for taxes, that he might redeem it, and take the land, was not only never accepted, but directly refused by Murdoch, and does not constitute a contract which appellant can enforce in equity. Sheffield Canal Co. v. Sheffield & Rotherdam R. R. Co., 3 Railway Cases, 121; Eads v. City of Carondelet, 42 Mo. 113; Chicago v. Great Eastern R. R. Co., 43 N. Y. 240; Martin v. Black, 21 Ala. 721; Bruner v. Wheaton, 46 Mo. 363; Hough v. Brown, 19 N. Y. 111; Washington Ice Co. v. Webster, 62 Me. 343. Even if Murdoch had not absolutely rejected the proposition, the acceptance of it after the lapse of two years, would not be acceptance within a reasonable time so as to bind Milner & Lisenby, and consummate the contract. Chicago v. Great Eastern R. R. Co., 43 N. Y. 240. In this case, Murdoch, after considering the proposition from May to November without making any reply to it, then, by his letter of November 16, 1880, absolutely rejects the offer made him, and there the negotiations ended. (3) The letter of Milner & Lisenby, dated May 29, 1880, did not create Milner the trustee of Murdoch in holding the title of the land as contended by appellant.

NORTON, J.

This is a proceeding in equity, instituted in the circuit court of Greene county, in which it is sought to have defendant declared a trustee for plaintiff of certain real estate described in the petition, and to compel him to account for so much thereof, as he had sold and conveyed. Issue was joined on the petition, and, upon a trial being had, judgment was rendered for the defendant, from which the plaintiff has appealed on the ground, that under the evidence he was entitled to a judgment and decree in his favor.

It appears from the evidence, as preserved in the record, that plaintiff was a resident of the state of Michigan, and in 1867 purchased and became the owner in fee of certain lands and a lot in the city of Springfield, Greene county, particularly described in the petition; that in 1876 he entrusted the sale of said property to Milner and Lisenby of said city, a firm composed of defendant and John W. Lisenby, having a real estate and abstract office, dealing in real estate and paying taxes in the counties of southwest Missouri. The correspondence put in evidence by plaintiff between himself and this firm establishes, beyond question, the fact that defendant and his partner were the agents of plaintiff to sell the real estate in question. It, also, establishes the further fact that taxes from the year 1869 had accumulated on the property, which was an impediment to its sale, and that plaintiff being informed of it, authorized his said agents to procure a loan in Springfield to sufficient money to pay the taxes which he proposed to secure by pledging the property; that they made an arrangement for a loan of $300, forwarded to plaintiff a deed of trust which he executed, but having acknowledged the same before a justice of the peace the loan was not perfected. The following correspondence then took place between the parties:

“BERRIEN SPRINGS, MICH., March 13, 1880.

Messrs Milner & Lisenby:

GENTLEMEN:--I have been away from home so much since you returned the papers to me, that I have not had time to attend to it. I am expecting, before the 1st of May, funds sufficient to pay the taxes, when I will visit you and see whether I can dispose of the property. If not, I will send trust deeds. In the mean time, if you can secure me a purchaser for both pieces so as to net me $1,200, close the bargain.

Yours truly.

GEO. H. MURDOCH.”

‘SPRINGFIED, MO., May 21, 1880.

“ Geo. H. Murdoch, Esq., Berrien Springs, Mich.

DEAR SIR:--Your land is advertised to sell for taxes, and will likely go for taxes and costs, unless paid before sale. We write you so you may know about it, as sales are not subject to redemption, except at option of party buying.

Yours, etc.,

MILNER & LISENBY.”

“BERRIEN SPRINGS, MICH., May 26, '80.

Messrs Milner & Lisenby:

GENTLEMEN:--Your note received. I have been expecting means to relieve me entirely. I am sure of it, but cannot fix the exact time when I can reach it. I hope, if you do not hear from me within a reasonable time, you will negotiate a loan. Send me a mortgage and I will return it by return mail. You did not say when sale would take place. I feel quite sure that within thirty days I can send the money, but may be disappointed in this. For this reason I hope you will secure the loan in time to return mortgage to you before sale.

Yours truly,

GEO. H. MURDOCH.”

“SPRINGFIELD, MO., May 29, 1880.

DEAR SIR:--Yours received yesterday. We did not write dates, etc., of sale because we were a little indifferent as to the matter, as we had exerted ourselves to get loan before, and it failed through no fault of ours; but after yours received yesterday, and as the sale came off to-day, we arranged so as to have it bid off and let you redeem it in a reasonable time. So now the lots are sold and can be redeemed, or rather, the party who has received tax deed will quit-claim to you for a small advance on what it would have before cost you, say, about $300 or $315 if paid soon, which would include taxes of 1878 and 1879. Of course this is only a temporary arrangement, and the sale to-day could be enforced and carry title to all of your land, but we can hold it in this way for a little while. Let us know as soon as you can just what you will do.

Yours, etc.,

MILNER & LISENBY.”

“SPRINGFIED, MO., Nov. 12, 1880.

Geo. H. Murdoch, Esq.:

DEAR SIR:--Your property has been sold taxes under our new law, which is...