Rives v. Lawrence , 41 Ga. 283 ( 1870 )

By the Court—

BROWN, C. J.,

delivering the opinion.

The jury having found for the complainant in the Court below, who is defendant in error in this Court, we are to accept the charges made in her bill and the evidence on her side as the true statement of the case, which is substantially as follows: The complainant was a widow, and on the sale day in December, 1868, in the town of .Eatonton, a tract of land held by her husband at the time of his death, under a parol gift from his father, was’ exposed to sale by the administrator of David L. Lawrence, the father of complainant’s said husband. Mrs. Lawrence, the complainant, attended on the day of sale for.the purpose of bidding for the land, prepared to comply with the terms of sale. At the hotel she met the defendant, Rives, and her relative, David L. Lawrence. She told them she had come to bid for the land, and requested them to come to the hotel and let her know when it was exposed for sale. This they promised to do, and to accompany her to the place of sale, as she expressed a wish to be present at the bidding. She remained at the hotel, relying on them to come for her; but they did not come. About ten minutes before the sale commenced, Lawrence met Rives in the street, and said, it would be improper, he thought, for Mrs. Lawrence to appear in the large,,crowd, as a bidder; and remarked that, if he, Rives, would bid off the land for her, it would be unnecessary to go to the hotel after her, and that he, Lawrence, would not go for her, if Rives would agree to bid it off for her. Rives agreed that it would be improper for her to appear at the sale, in the large crowd, and that, instead of going to the hotel after her, he would bid off the land for her. And when the crier announced the land for sale, Lawrence again approached Rives, and asked him if he would bid off the land for Mrs. Lawrence, instead *of going to the hotel for her,- and he replied he would. And immediately after the sale he told several persons he had bid it off for Mrs. Lawrence. On the same day, Mrs. Lawrence, the complainant in the bill, saw the defendant, Rives, and informed him, she expected to take the land and was prepared to comply with the bid. He replied, it was too late then to attend to the business, but he would come to her house next Thursday and stay till Sunday, and they would fix it all up. He did not go as he promised, and, afterwards, denied that he purchased the land for her, or as her agent. He took the title in his own name, and refused to transfer it to her, on her offer to comply with the terms of the sale and save him harmless.

Upon this state of facts, the jury found for the complainant, and the Court decreed that, upon her paying over to the defendant the amount bid him for the land and interest thereon, according to the terms of the sale, he, the defendant, should hold said land as her trustee for her use and benefit. Upon this decree and the charge of the Court on the trial, error is assigned, on the ground that the contract, if any existed, was for the purchase of land, and was not in writing signed by the party to be charged therewith, and that the agency was expressly denied by the defendant. And it is claimed that the case falls within the statute of frauds.

The counsel in this Court reviewed with much learning and ability the authorities on both sides of the question. But we do not find it necessary to follow them in this review. We think the right of recovery in this case results from the fraudulent conduct of Rives, the defendant, and that the statute of frauds has no application.

In section 3116 of the Revised Code fraud is said to be actual on constructive. “Actual fraud consists .in any kind of artifice by which another is deceived. Constructive fraud consists in any act of omission or commission contrary to legal or equitable duty, trust or confidence justly reposed, which is contrary to good conscience and operates to the injury of another.” “Whenever the o circumstances are such that the person taking the legal estate, either from fraud or otherwise, *can not enjoy the beneficial interests, without violating some established principle of equity, the Court will declare him a trustee for the person beneficially entitled, if such person has not waived his right by subsequent ratification or long acquiescence:” Revised Code, section 3138. In other words, the law in such case implies a trust, and holds the person having the legal title to be a trustee for the person beneficially interested. “Implied trusts are such as aré inferred by law from the nature of the transaction, or the conduct of the parties:” Revised Code, section 2283. A trust is implied “where, from any fraud, one person obtains the title to property which rightly should belong to another:” Revised Code, section 2290.

We think the facts in this case, as found by the jury, show that Rives resorted to artifice to deceive Mrs. Lawrence and her friends, and that he violated the confidence which she reposed in him, when he failed to go for her himself and prevented her relative from informing her of the time of sale and ■enabling her to be present to bid, by professing to act as her agent in bidding off the land. If he had kept his promise and had gone and accompanied her to the place of sale, when the property was about to be exposed at public outcry, or if he had informed her relative, Mr. Lawrence, that he should bid for himself, she would have been present, and would no doubt have bid off the land herself, or have, made him pay higher for •it. By professing to act for her, he kept her away, and he can not now, by denying the agency, take the benefit of this fraudulent act, and protect himself by the statutes of frauds. He has by artifice and deception obtained the legal title to property of which he can not enjoy the beneficial interest, without violating well established principles of natural as well as legal equity, and the law assigns him the position of trustee for the benefit of the injured party.

Was parol evidence admissible to establish the title of the complainant? ,We think the Code settles this question. Section 2291 declares that, “in all cases where a trust is sought to be implied the Court may hear parol evidence of *the nature of the transaction or the circumstances, or conduct of the parties, either to imply or rebut a .trust.” Here an implied trust was sought to be established on account of the fraud of the defendant, and we are satisfied parol evidence was admissible for that purpose. The jury in effect found that the fraud had been committed, and that the implied trust existed, and we will not disturb their verdict.

Judgment affirmed.