Roberts v. Mansfield , 38 Ga. 452 ( 1868 )

McCay, J.

The error of the Court in this case, consists in the follow-lowing charge to the jury : “It was his (Mansfield’s) duty to give notice of his rights at the day of sale. If he did not do this, he is in laches, and can not recover, if he did, then his lien continued and followed the property.” In effect, this was a charge that the plaintiff could not recover. Failure to give notice, puts him in laches; giving notice, turns him off the defendant on the land.

There are two views of this case, in either of which, if the jury find the facts, as und.er the proof they might, the defendant is liable to the plaintiff below.

The plaintiff ought not to be heard in denial of his public declarations on the day of the sale. He was the nominal holder of the mortgage, and, at the sale, he publicly proclaimed that it was still his, and that the purchaser would get a good title against it. He now proposes, in effect, to deny this; and that after he has got the benefit of it, and misled, by his solemn act,' the purchaser at the sale. He cannot be allowed thus to trifle with the rights of others, and, by permitting him to set up this defense, he turns the plaintiff, perhaps succéssfully, against the purchaser, who bought on his faith in his (Faircloth’s) sátements. Greenleaf Ev., sec. 207, 209.

But there is another view of it. Assuming the facts to be as Mansfield claims, and there is evidence on which a jury might so find, Faircloth held the title to the mortgage, as trustee for Mansfield. Whilst so holding it, he agrees, at a sale, under a fi.fa. for a part of the same debt, that the purchaser at the sale will get a good title against the mortgage. In other words, he uses the mortgage for his own benefit, and, by that use, he secures a bidder to the amount of his debt.

How, it is well settled, that when a trustee uses the property of the trust, for his own benefit, that the true owner is not compelled to follow the property, even though he might be able, by proving notice, to follow it successfully. He has his option, in such a case, to sue the trustee, or follow the property.

It would be monstrous to permit the trustee, in such cafees, to say : “Yes, I have used the trust property; I have got the benefit of that use, but you can prove that the party now in possession had notice of your claim. He trusted, it is true, to my statements, but he ought to have known me better. Your remedy is on him.”

The rule is well established, that the cestui que trust may sue the trustee, even though it appear that he has a right also to sue the person dealing with the trustee. 2 Story’s Equity, sec. 1262; Dacker vs. Soames, 2 Mylne & K., 655.