Luscombe v. Grigsby

Citations

• 11 S.D. 408
• 78 N.W. 357
• 1899 S.D. LEXIS 12

Syllabus

<p>1. When an agent who foreclosed a mortgage for his principal was authorized to do so, and his only fraud consisted in bidding in the property in his own name, the principal need not treat the mortgage as unforeclosed, but may bring suit against t}ie agent to enforce the constructive trust.</p> <p>2. Plaintiff, suing to enforce a trust in property held in defendant’s name, alleged that his agent appointed to foreclose a mortgage on the property bid it in in his own name, and afterwards transferred it to defendant; that such agent and his attorney, who were made co-defendants, had conspired to wrong and defraud plaintiff. Held that, since the allegation of fraud was mere soi-plusage, a finding that there was no actual fraud on the part of the agent and the attorney is not inconsistent with a decree for plaintiff.</p> <p>3. Comp. Laws, §§ 3915, 3920 (providing that “every one who voluntarily assumes a relation of personal confidence with another is deemed a ' trustee,” and that one who gains a thing by fraud, the violation of a trust, or other wrongful act, is an involuntary trustee of the thing gained), include an agent appointed to foreclose a mortgage for his principal, who bid in the property in his own name.</p> <p>4. A suit by a mortgagee to enforce a trust in the mortgaged property, against one who, with knowledge purchased it from one who had foreclosed the mortgage as agent, and had bid in the property in his own name, is in equity, and not in tort, although the complaint contains the 'unnecessary allegation that the agent and his attorney, made co-defendants, had conspired to defraud plaintiff.</p> <p>5. Under Comp. Laws, §§ 3915, 3920 (which provide that one who voluntarily assumes a relation of personal confidence with another, or who gains a thing by fraud, the violation of a trust, or other wrongful act, is a trustee of the thing gained), a complaint to enforce a trust against an agent who bid in mortgaged property in his own name, and one who purchase