Phelps v. Reeder

Citations

• 39 Ill. 172

Syllabus

<p>1. Agency—what constitutes. One of two tenants in common of land purchased his co-tenant’s interest therein. There were mechanics’ liens upon the premises, which were to be paid off by the purchasing tenant, by allowing a sale to take place under the anticipated decree and having him become the purchaser, and he was to be allowed as a credit on the purchase-money, one-half of the full amount of those debts: Held, that this agreement constituted the purchaser the agent of his vendor in respect to the payment of those hens.</p> <p>3. Same—agent cannot make profit out of the matter of his agency. And, by reason of the relation existing between the parties, of principal and agent, the latter could not speculate in regard to the discharge of the liens, at the expense of the former.</p> <p>8. So that whatever abatement of the liens the agent may have procured, he would be required to allow it to his principal.</p> <p>4. Trustee—what constitutes. In such case, the purchaser, retaining the purchase-money in his own hands with which to discharge the incumbrances on the property purchased, held the fund as trustee for his vendor.</p> <p>5. Same—trustee cannot make profit out of the ti-usi fund. And holding the money as trustee, if, in applying it in discharge of the incumbrances, as was agreed upon, he makes a profit, he must account therefor to his cestui que trust.</p> <p>6. Garnishment — defect in form of writ, waived hy appearance. When a party appears and answers a writ of garnishment, he thereby waives any want of form in the writ.</p> <p>7. Set-ofe—inequity. A judgment against two jointly cannot be set off in equity against a debt due to one of them individually, except it be alleged and proven that the other is insolvent.</p>