Bell v. Bell , 20 Ga. 250 ( 1856 )

By the Court,

Lumpkin, J.

delivering the opinion.

[1.] We see nothing in the charge of the Court requiring-notice or comment, except as to the measure of damages.. .Eor that this was one of those too common but highly reprehensible proceedings to wrest property, under color of law, from its innocent but ignorant owners, there can be no doubt.

The rule as to damages, is thus stated by Hill on Trustees (p. 522): “If the property cannot be followed in specie, or if the holder, having taken without notice, cannot be made liable to the trust, the trustee will be decreed to compensate the cestui que trust by payment of a sum equal to the value of the trust property, or by purchasing other property of equal value for their benefit.” And the author cites, in support of the text, 2 P. Wms. 681; 1 Ves. Jr. 297; 5 Ib. 794; 9 Ib. 103; 2 Madd. 235; and 3 Beavan, 550. And in all cases, he will further be decreed to account for all rent or interest, or other profit or advantage received from the trust estate, or in any way arising from the breach of trust. (1 Ves. Jr. 408; 3 Swanston, 625; 4 Ves. 497; 5 Ib. 794; 12 Ib. 402; 15 Ib. 226; 2 M. & R. 655.)

At what time is the value of the property to be estimated? Or, in other words, what is the measure of damages in such cases, is a vexed question. Different Courts have adopted different rules upon this subject; and all of them admit so many exceptions to their own rule, as virtually to make it of' none effect.

The case read from 2 Johnson's Ch. R. holds, that where the trust property has been fraudulently converted to the use of the trustee, the damages are not restricted to the time of sale; but that the cestui que trust are entitled to the increased value. In Massachusetts, the rule is to limit the damages to the time of sale. The Appellate Court of Virginia was equally divided upon this point in a case in Grattan; but the decision went in accordance with the Massachusetts rule.

Mr. Parsons, in his Treatise on Contracts, discusses this-question, but leaves it uncertain. In the course of his re- - marks upon this subject, he puts a case very like the one at-bar, where land belonging to a cestui que trust, which they-would likely not sell immediately, was disposed of by the-trustee. In such case, he concludes they would be entitled' to the enhanced value.

Under all the circumstances of- this case, we think the-■charge of the Court, the verdict of the Jury, and the decree founded thereon right, in holding the defendant liable for • the value of the land at the time the bill was filed, 22d day of January, 1852, which was admitted to he $1000, with interest thereon from date. It is high time that this unwarrantable interference with other people’s property, to sub-serve the most selfish purposes, should be discouraged and rebuked. It has grown to be a great evil in the State, and> gives rise to a large portion of the litigation which crowds - the Courts. We have nothing to say against legitimate administration, Iona fide obtained to pay debts and distribute the estate. Rut to seize and appropriate property under color of law, is worse even than to take and convert it without' any such,pretence of authority.