Cantwell v. Nunn

Rudkin, J. The facts alleged in the amended complaint and found by the court are substantially these: That on and prior to the 20th day of July, 1903, the plaintiff was the owner in fee of seventy-five acres of land in King county, particularly described in the complaint and findings; that she is a woman of limited education and has little knowledge of business transactions, especially in regard to real estate titles; that on the 29th day of September, 1902, a tax judg [537] ment was entered in the superior court of King county in a proceeding entitled King county v. the plaintiff herein, and pursuant to the judgment a tax deed for 40 acres of the tract in controversy was executed by the county treasurer and delivered to one M. F. Blum, the purchaser at the tax sale; that on the 17th day of March, 1902, a certain other tax judgment was entered in the same court in a proceeding entitled G. W. Vanderbeck v. the plaintiff herein, and pursuant to this judgment a tax deed for the remainder of the tract in controversy,' less a strip 100 feet in width off of the west side thereof, wa,s executed by the county treasurer and delivered to one H. B. Kennedy, the purchaser at the tax sale; that at the time of the commencement of said tax proceedings the plaintiff was a resident of King county, was not served with summons or complaint, and had no notice or knowledge of the pendency of either of said actions, or of the tax judgments or sales, and no demand for possession of the premises has ever been made upon her; that on or about February 1, 1903, 'the plaintiff employed the defendant A. H. Nunn as her agent to sell all of said real property for her on a commission basis, and from time to time thereafter consulted with him in relation to such sale: that on or about the 10th day of July, 1903, the defendant Nunn called on the plaintiff and informed her that he had examined the records in the auditor’s office in King county, .and had discovered that all of the lands in controversy had been sold under tax judgments; that the land had been purchased in separate tracts by Blum and Kennedy; that the deeds had been executed and delivered by the county treasurer; that the plaintiff had been devested of all interest in said lands, and that the purchaser at the tax sales had acquired a perfect 'title thereto; that the plaintiff thereupon informed the defendant Nunn that she had been a resident of King county for a number of years, and that no notice or process of any kind had been served upon her in the tax foreclosure pro [538] ceedings, and of such facts the defendant Nunn was already informed; that the defendant Nunn, with intent to defraud the plaintiff, while acting as her agent, and with intent to acquire the plaintiff’s interest in said lands for his own use, informed the plaintiff that she could do nothing to recover the land, that he, Nunn, had a client whom he thought would give $50 for a quitclaim deed for that portion of the lands purchased by Kennedy, and he advised the plaintiff to accept it; that these representations were made by the defendant Nunn with intent to deceive and defraud the plaintiff and thereby acquire title to the plaintiff’s land for his own use and benefit, and .that the plaintiff relied upon such representations and was deceived thereby, and by reason thereof agreed to sell the lands purchased by Kennedy to the client of the defendant Nunn for the sum of $50; that in pursuance of his purpose and design to defraud the plaintiff, the defendant Nunn induced the plaintiff to execute a quitclaim deed for all of said lands on the 20th day of July, 1903, in which deed the name of the grantee was left blank, and immediately after the execution of said deed the defendant Nunn inserted therein the name of the defendant Frances Pillsbury as grantee; that the defendant Pillsbury is the mother-in-law of, and resides with, the defendant Nunn, and that said Pillsbury was not in fact the purchaser of said property, and has no interest therein, but that said property was purchased in the name of said Pillsbury for the use and benefit of the defendant Nunn, for the purpose of deceiving the plaintiff and concealing from her the name and identity of the real purchaser; that on the 26th day of September, 1903, the defendant Nunn filed a motion in the name of the plaintiff to vacate the tax judgment in 'the case of Vanderbeck vs. the plaintiff, and supported the same by a paper which he had procured from the plaintiff, representing the same to be a receipt' for the $50 paid on account of the quitclaim deed, but which was in fact an affidavit in form, averring that at the time of the commencement of the proceedings to fore [539] close the delinquency certificate the plaintiff herein was a resident of King county, and that no notice or process had been served upon her; that said motion was denied by the court at the request of the plaintiff, upon her showing that the motion was made without her knowledge or consent; that thereafter on the 20th day of October, 1903, the defendant Pillsbury filed a further motion to vacate the judgment, supported by the affidavit of the defendant Nunn to the effect that the plaintiff herein was, at the time of the commencement of said proceedings, a resident of King county, and was not served with notice or process therein, which motion was granted by the court, and that prior to the commencement of this action the plaintiff tendered and paid into court the $50 received by her for the quitclaim deed above referred to. On the foregoing facts the court rendered judgment setting aside the quitclaim deed from the plaintiff to the defendant Pillsbury, and directing the defendant Pillsbury to reconvey to the plaintiff. From this judgment the defendants appeal, and assign as error the insufficiency of the complaint and findings to support the judgment. It is strange that a court of equity should be asked at this late day to sanction and uphold such fraud and double dealing on the part of an agent as is disclosed by this record. But, while the conclusion of law and decree which should follow from the foregoing findings would seem inevitable, we will nevertheless discuss briefly the different objections urged on behalf of the appellants. It is first contended that it does not appear that the respondent was the owner of the land or had any interest therein at the time of the execution of the quitclaim deed. This contention is based upon the theory that the finding that the property was sold under-tax judgments, negatives and destroys the finding that the respondent was the owner in fee. It is true the finding may not necessarily show that the tax judgment was void, but nevertheless it clearly appears that the appellant Nunn knew or believed that the tax judgment was void as a matter of [540] law, and could be set aside on motion, and he not only concealed knowledge of this fact or belief from the respondent, but made representations directly to the contrary. It clearly appears from the complaint and findings that the respondent was the absolute owner of a strip 100 feet in width along the west side of the tract sold to Kennedy, and had a valid and subsisting interest in other portions of the land. It is next contended that the findings do not show that the quitclaim deed executed by the respondent was ever delivered. There was no specific finding to that effect, but . the court did find that the deed was executed by the respondent, that the appellant thereafter filled in the name of the grantee, that the property was purchased for the benefit of the appellant Nunn, and that appellant Pillsbury as grantee moved to vacate the judgment. From the foregoing we must infer a delivery, in the absence of a statement of facts or bill of exceptions. We have thus far considered the case from the standpoint of actual fraud, which we think the findings abundantly show, but the same result necessarily follows from the other facts found. The law exacts of every agent the utmost fidelity to his principal. He must keep him fully informed as to all his transactions, and the state of the business or interests entrusted to him. Any departure from these rules is a fraud in law. An agent to sell cannot become the purchaser, and an agent to buy cannot be himself the seller. Equity removes from the trustee every temptation to violate his trust by declaring in advance that all such transactions are null and void at the option of the principal, and the wisdom of this rule is fully demonstrated by the record before us. On the ground of both positive and implied fraud, the judgment appealed from is correct, and the same stands affirmed. Hadley, C. J., Fullerton, Dunbar, Mount, and Crow, JJ., concur. Root, J., took no part.