Lampkin v. McCreight

Sykes, J., delivered the opinion of the court. S. H. McOreight, appellee, filed a petition in the chancery court of Oktibbeha county for a partition of eighteen acres of land. In ■ his petition he alleged, that he was the owner by purchase from certain negroes of an undivided six-sevenths interest in the land in controversy, and that the heirs or devisees, of R. A. Lampkin, deceased, were the owners of the other undivided one-seventh interest in said land; that R. A. Lampkin, his heirs and devisees, had been in possession of the$e lands for ten or fifteen years, and had, appropriated to their use the rents, profits, etc.. Petitioner asked for an accounting of these rents and profits. The petition alleges that the. land cannot be ■ divided in kind, and that it be sold for a division of the proceeds. Answer was filed by the defendants denying the material allegations of the bill. The answer was then made a cross-bill, and the. cross-bill alleged, in substance, that S. H. McCreight, appellee, represented to E. W. Lampkin and H. H., Bonner, son and spjkln-law, respectively, of R. A. Lamp-kin, deceased, and agents of the executrix of the estate of R. A. Lampkin, that, there was a 'defect in the title to the land in controversy; that certain negroes owned. [663] or claimed to own a six-sevenths interest in this land;, that, previous to the death of R. A. Lampkin, appellee and Lampkin had practically agreed upon a trade of these eighteen acres of deceased for twenty acres of land belonging to appellee, hnt that the trade had not been consummated because of the alleged defect in the-title; that he, (McCreight) believed he could get a quitclaim deed from these negroes; that McCreight was employed by Bonner and Lampkin to procure this quitclaim deed at a price not to exceed thirty dollars; that they would reimburse McCreight for the amount-expended by him in procuring the quitclaim deed and pay him a reasonable compensation for his services;, that McCreight accepted this employment and got a quitclaim deed from the negroes for the sum of twenty dollars, hut that, instead of naming as grantees, in the deed the appellants, he wrongfully and fraudulently inserted as grantee himself in his deed. Cross-complainants ask that the court hold McCreight as a trustee ex maleficio of this undivided six-sevenths-interest in the land, and offered to reimburse appellee-for the twenty dollars expended by him in procuring the-quitclaim deed and pay him the value of his services-for doing so. The answer of appellee to the cross-bill, after denying the allegation therein, alleges the facts of the transaction about procuring the quitclaim deed to be as-follows: Appellee alleged that he advised Bonner and Lampkin of the alleged defect in the title to this land; that during the lifetime of B. A. Lampkin he and deceased, Lampkin, had practically agreed upon a trade-of the lands as above stated, but that said trade had not been consummated, because the deceased, Lampkin, had not gotten a quitclaim deed from the negroes claiming to own an interest therein; that, after discussing the matter with Bonner and Lampkin, these appellants advised him that, if he would assist them in securing the outstanding interests of these negroes, they would give664 'Mm the eighteen acres for his twenty acres; “that cross-respondent accepted the proposal for exchange and agreed to render whatever services he could in securing the deeds from the said Isaac Owen heirs.” Testimony was introduced by both sides, and the learned chancellor rendered a decree in favor of the petitioner, and ordered a sale of the lands for a division of the proceeds in accordance with the prayer of the petition. He denied that the petitioner had any right to an accounting for rents and profits. From this decree, appellants prosecute an appeal to this court. The testimony of the appellee, McCreight, himself is to the effect that he called to see Messrs. Lampkin and Bonner, who were representing the executrix in winding up the affairs of this estate, and told them that he and the deceased, R. A.-Lampkin, had frequently discussed trading these two tracts of land, but did not do so because of the outstanding claim of these negroes; that he discussed with them the trade, and that they agreed to make the same; that he told them of this claim of the negroes to the land. He was then asked what agreement he made about getting the defect cleared up. To that question he replied that he was asked by Mr. Bon-Mer if he could get a deed from the heirs to the land, and that Mr. Bonner asked him how much he could get it for, and wanted to know if he could not get it for ten or fifteen dollars; that he told Mr. Bonner he would not offer the heirs that little amount, and that Mr. Bonner then told him to try to get the deed, but not to go over thirty dollars, and that he (Bonner) “would give me the eighteen acres and pay my money back.” Mr. Bonner then wrote a quitclaim deed for the negroes to sign, naming the deceased, Lampkin, as the grantee. This deed was written by Bonner at the request of McCreight. McCreight then went to see the negroes that night, and the next day had them meet him at the •court house in Starkville for the purpose' of signing the •deed. In the meantime, McCreight had read the deed [665] and saw that the deceased, Lampkin, was the grantee therein. Before the negroes signed the deed, McCreight was informed hy the chancery clerk that the deed was void, because the grantee was dead. Thereupon he tore up this deed and took a quitclaim deed to himself as grantee. The appellee explicitly states, on further examination, that he accepted this deed from Bonner, and put it in his pocket, and left their place of business in order to secure its execution from the Owen heirs.. He states that the reason he took the deed in his own name, after tearing up the void deed, was because they had already traded the land, and he was going to he the-owner of the eighteen acres of land anyway, and he-thought he had better take this deed in his own name, to protect himself and force the appellants to stand up-to the trade. This is the legal effect' of his testimony about this matter. From the sworn answer of appellee to the cross-petition, and from his own testimony, the substance of which is above given, we unhesitatingly say that he accepted the employment from appellants to get the deed from, the negroes, just as the appellants wanted the deed taken; that he was acting as the agent of the appellants, in the procuring of this deed; that under the law he-had no right secretly to repudiate this agreement and .take this deed to himself; ■ that his act was wrongful, and a legal fraud upon the rights of his principals; and that he is nothing more than a trustee ex maleficio, of the title to this land. Murphey v. Sloan, 24 Miss. 658; Fairly v. Fairly, 38 Miss. 280; Winn v. Dillon, 27 Miss. 494. The decree of the lower court will he reversed, and a decree entered here, divesting the appellee, McCreight, out of all interest and title to the land in controversy,, and vesting the same in appellants; that appellants will reimburse appellee for the twenty dollars paid out in procuring the title from these negroes, together with legal interest from the date of payment;. [666] that appellants will further pay the appellee, as reasonable compensation for his services in procuring the deed, the sum of five dollars. Reversed, and decree here .for appellants in accordance with this opinion. Reversed, and decree here.