Chism v. Thomas

Smith, J.

(after stating the facts). Appellant was the purchaser at the commissioner’s sale, and, although he testified that the land was worth only fifty to sixty dollars per acre, he admitted that he was prepared to pay $150 per acre for the land, a sum largely in excess of the price he was required to pay; but even at the price which he did pay a single interest was worth $619.33; and yet, on the day before the sale, he paid appellee only $250 for her interest.

The court below did not cancel appellee’s deed, as it was unnecessary to do so to administer full and complete relief; but the testimony would have warranted that action had it been necessary. Appellant and his wife were tenants in common with appellee, and appellant had been acting for himself and his cotenants in the conduct of the suit leading to the decree under which the sale was had, and a relation of trust and confidence thus arose, the law of which relationship is stated in Dunavant v. Fields, 68 Ark. 542, as follows: ‘‘In Clements v. Cates, 49 Ark. 242, this court said: ‘ The law forbids a trustee, and all other persons occupying a fiduciary or quasi fiduciary position from taking any personal advantage touching the thing or subject as to which such fiduciary position exists;’ or, as expressed by another, ‘wherever one person is placed in such relation to another, by the act or consent of that other, or the act of a third person, or of the law, that he becomes interested for him or interested with him in any subject of property or business, he is prohibited from acquiring rights in the subject antagonistic to the person with whose interest he has become associated. # # * This rule applies to tenants in common by descent with the same force and reason as it does to persons standing in a direct fiduciary relation to others. ’ There is no perceptible difference, in this regard, between the case of tenants in common by descent and that of tenants in common by devise.”

The decree is correct, and is therefore affirmed.