Bartholemew v. Leech

The opinion of the Court was delivered by Gibson, C. J. It is not denied that the defendant’s father had been the plaintiff’s agent and curator of the land. The father himself testified that his agency had expired before the sale; but that is not enough. To capacitate him as a purchaser' on his own account [474] he must have explicitly resigned his trust. The most open, ingenuous and disinterested dealing is required of a confidential agent while he consents to act as such; and there must be an unambiguous relinquishment of his agency before he can acquire a personal interest in the subject of it. To leave a doubt of his position in this respect is to turn himself into a trustee. It is unnecessary to recur to authority for a principle so familiar or so accordant with common honesty. The agent was employed in this instance expressly to preserve the land from being sold ; and taking his agency to have been left unclosed by the absence of an explicit renunciation of it, neither Leisenring v. Black, 5 Watts 303, nor Riddle v. Murphy, 7 Serg. & Rawle 230, presented a stronger case to restrain the agent from purchasing for himself. Within the three preceding years he had been reimbursed his expenses and paid for his services; but that was not a dissolution of the previous relation; and it is not pretended that there was any other evidence of it. On the contrary, the fact that he gave intelligence of the sale to a co-tenant of the plaintiff, as well as to a friend of the family, evinces a consciousness that his duties as a fiduciary were not entirely closed. He. is therefore to be treated as having been a trustee.- But did the defendant purchase of him with notice 1 Knowing, as he probably did, of the former existence of the agency, he would be bound to inquire into the duration of it; and he would stand affected by it. There is, however, an objection to the treasurer’s sale which goes to the root of it. The surplus bond contains no specification of the land ; and being referable to nothing in particular, it could neither create a lien nor give notice of one. As any thing but a common bond for the payment of money it was insensible and incurably vicious. Nor is it helped by the treasurer’s subsequent indorsement of the district and number of the tract. That was an indorsement for the officer’s convenience, but .no part of the instrument. In an action on it to reach the land (he terre-tenant might urge, with irresistible force, that the purchaser had not given the treasurer power to pledge it; and in looking into the bond, which alone is the purchaser’s act, it would not be discovered that the purchaser had pledged it himself. The indorsement was a memorandum for the convenience of filing, which might have been made with equal propriety by the prothonolary’s clerk. To whom, then, is the misprision to be charged % In White v. Willard, 1 Watts 42, and Fager v. Campbell, 5 Watts 247, the title was not prejudiced by the treasurer’s omission to have the bond put on file ; but it had been held otherwise where'the purchaser had given no bond at all: and the instrument in the present case is certainly not the bond directed by the statute. But it is insisted that, as the purchaser does not furnish the instrument, his title is not to be avoided by a blunder in the preparation of it. The treasurer is certainly charged with the business of preparation ; but he is bound to perform it under the direction of the purchaser, who is bound, on the other hand, to know the of [475] his title and to point out errors in the concoction of it. When the bond is delivered, his participation ends, and the exclusive business of the treasurer begins. That the purchaser previously acts at the peril of his title is shown by Connelly v. Nedrow, 6 Watts 451, where a deposit of the surplus money was not allowed to be an equivalent for the statutory security. The defect is fatal, and the plaintiff is entitled to recover. Judgment reversed, and a venire clenovo awarded.