McKean & Elk Land & Imp. Co. v. Clay

Per Curiam, This case, although elaborately argued, both in the paper books and at bar, does not require an extended discussion. The-appellant contends that the purchases of the real estate by General Kane, at the tax and sheriff’s sales, in 1874, were void, for the reason that, at the time, he was agent of the plaintiff corporation, and that his purchases, because of the agency, were-fraudulent, and therefore void. The answer to this on the part of the defendants was, that the evidence did not show him to be such agent; that had he been an agent, intending to commit a fraudulent breach of duty,, by purchasing in a way hostile to his principal, the intended fraud would, by operation of law, not be allowed to prevail, but he would have been turned into a trustee for his employer; in other words, a trustee ex maleficio. The evidence that General Kane, at the time of the purchases referred to, was the agent of the corporation, is so slight that it hardly amounts to a scintilla. On the contrary, the evidence is overwhelming that at that time his agency had ceased. If we concede, however, that the agency still existed, and that the purchases by Kane created a trust, arising by legal implication from his duty as agent, it comes clearly within the operation of the sixth section of the act of April 22, 1856, and would bar the plaintiff’s right to recover the land. The case is so fully discussed by the learned judge of the court below in [286] Ms opinion refusing a new trial, that we do not think it necessary to elaborate it. A careful examination of the record does not disclose error. Judgment affirmed.