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1879

TAYLOR

v.

WALL

BRIDGE.

The paper writing now produced and shown me is the written agreement with Defendant, Wallbridge, and myself. It is signed by Mr. Wallbridge and myself.

Wallbridge says:

I think the bargain was made with George Taylor about a month or six weeks before the deed issued from the College. No litigation was going on. I made the bargain with George Taylor before money was sent to College. My bargain with George Taylor was, that I was to pay the College and indemnify him against all costs of suit that might be brought against him respecting the land, and I was to get half the land. I do not think there was any memorandum in writing. The litigation took place after the deed was obtained from the College.

At another time, he says:

I paid a balance of a note to Filliter to make up the amount of difference between the money I paid the College and the money going to Taylor. In making up the account I took the amount of the College money and the amount Taylor had paid on chancery suit, and paid the balance on the Filliter claim. I never searched my Bank account to see how I paid the money to Taylor.

Again, he says:

I paid the money that went to the College. I paid it to George Taylor. I made no entry of it. I think I paid George Taylor money on account of this land. I can't remember what I paid. I think I paid him £215, the consideration money in the deed.

George says:

Mr. Wallbridge paid me no money for the half he got. I conveyed the whole lot to him, and he conveyed back the half to me. This was done at Wallbridge's advice. I do not think the money to pay the College was furnished by Defendant (Wallbridge.) My remembrance is that I furnished it myself.

And on 15th May, 1856, he swears:

The amount I paid to the College was about £145.

The written paper shows the payment to have been on the 7th July, 1853, and for £90 5s. Od, instead of £143 7s. 1d., the amount paid the College. Both say nothing remained to be paid. The paper says $500 was still to be paid; and, if Wallbridge's account is correct,

he paid the money in 1851; made no entry of it; had 1879 no writing to evidence his payment or his agreement TAYLOR in reference to this land, and, therefore, must have continued in that position till 29th December, 1856.

Then, as to this bona fide purchase for value, it is difficult to understand how any prudent business man of ordinary capacity could make so large a purchase, and on such unusual terms, and pay so much money on account of it, and make no entry of any such payment; take no written memo. of the agreement, or the terms of a transaction of so exceptional a character, and which the law required to be in writing to be binding and effective, and which could not be completed for an indefinite period, and so continue for years without any binding agreement, receipt, voucher or inditia of title, or payment of any kind, or even any entry in his own books; nor is it easy to be understood how Defendants, in the position these parties were-their minds so much at variance as to the particulars of this transaction-should appear before the Court without having examined their books and cash and bank accounts, and exhausted all other means of information calculated to sustain their contention. they had such means of information, and did not choose to resort to them; or, if they had no such entries and no such accounts, no documents, no books to refer to, they cannot complain, if a transaction conducted so out of the usual and ordinary course of business, and left to rest on evidence so unsatisfactory, is not accepted.

If

But taking Wallbridge's contention in a way the most favorable to him, he has no case. The power of attorney gave no authority to George to make any one of the various arrangements spoken of by George and Wallbridge, and certainly gave no authority to give effect to an arrangement entered into, as Wallbridge persists in saying, not only before the title came to

v.

WALL

BRIDGE.

1879

TAYLOR

v.

WALLBRIDGE.

William from the College, but before George assigned to William, and, therefore, long before George had any authority from William to interfere with or dispose of any interest he may have had therein, and certainly the power gave no authority to George to convey the whole land to Wallbridge, or authority to Wallbridge to re-convey half to George.

But if the sale was in other respects unobjectionable, the transaction, it seems to me, could not stand. An attorney or trustee for sale is entirely disabled from purchasing the trust property. If George, and Wallbridge as attorney under him, were acting for William in securing the title, in recovering possession and effecting a sale of this property for Wil liam, they could not sell the property on William's behalf to themselves. The rule is now universal, that however fair the transaction, the cestui que trust is at liberty to set aside the transaction and take back the property. The law simply will not allow a man to be at the same time a seller and a buyer; therefore, any one intrusted with the sale of another's property, who directly or indirectly becomes the purchaser, commits, ipso facto, so far a fraud in the eye of the law that the owner may, at his election, avoid such sale.

In McPherson v. Watts (1), Lord Cairns, Ch., says: It is here that the pointed observations by Lord St. Leonards, in this House, in the case of Lewis v. Hillman (2), become so very material. They were not observations laying down any new rule of law, for the same principles had already been applied in numerous cases, but what Lord St. Leonards said in that case, was this: Take the case of a sale of any kind, which is so fair, so reasonable as to price, so entirely free from anything else that is obnoxious, as to be capable of being supported, yet, if there has entered into that sale this ingredient, that the client has not been made aware that the real purchaser is his law agent—if the purchase has been made in the name of some other person for that law agent that is a sale which cannot be supported. My Lords, so say I here. Assume, if (2) 3 H. L. 607-630.

(1) L. R. 3 App. Cas. 263.

you please, that in every respect as to price, and as to all other things connected with the sale, this was a sale which might have been supported had the McPherson family been told that Watt was the purchaser; in my opinion, it cannot be supported from the cir cumstance that that fact was not disclosed to them.

The defence of the Statute of Limitations is raised by the Defendant's answer.

Chief Justice Haggarty says it was conceded by the Respondent, the Defendant, on the argument, that the Statute of Limitations had no application to this case as a bar or otherwise, and I understood it was so admitted on the argument before this Court, but as some doubts have been expressed on this point, it is necessary for me to show why I think the Plaintiff's claim is not so barred.

George says:

I dispossessed Canniff, and I went into possession; I cannot tell when.

The means by which he dispossessed Canniff was the suit against Fairman (Canniff's tenant), consequently it must have been after the date of that judgment— 27th November, 1856-that he went into possession.

Wallbridge says the land was in possession of Osborne (Canniff's tenant) when the deed was obtained from the College.

George is examined the 15th May, 1856, and says:

I brought an ejectment against Plaintiff, Canniff, in my brother's name, by the advice of Wallbridge. The action of ejectment was brought in 1853; that was staid by injunction. Canniff is still in possession.

The deed from W. J. Taylor by his attorney, George, to A. H. Wallbridge, is dated the 29th December, 1856, and the bill was filed in this cause on the 25th April, 1874. I cannot conceive how he can claim a possessory interest in this land before the date of the deed to him, and before he had any possession, actual or constructive, and as the judgment in ejectment against

1879

TAYLOR

v.

WALL

BRIDGE.

1879

TAYLOR

v.

WALL

BRIDGE.

Fairman, who held under Canniff hostile to all parties, was signed on the 27th November, 1956, and this was the first litigation brought in the name of William Taylor, as A. H. Wallbridge says by him, to get the possession, and under which possession was obtained. how then can he claim a title by possession before the possession was acquired? From all this, it is abundantly clear that neither Wallbridge nor George had 20 years possession; so this defence fails.

But it has been urged that the Plaintiff has acquiesced in the sale, and by lapse of time is now estopped from disputing the validity of the sale under the power of attorney. As there never was any sale of William's interest in this property, it is somewhat difficult to understand how the doctrine of acquiescence is to be applied to a case of this kind; but suppose it applicable, I am by no means prepared to dispute that, while in cases of expressed trust by act of the parties no time will be a bar, acquiescence for a long time in an improper sale may disable a person from coming into a Court of Equity to set it aside. I am, nevertheless, at a loss to conceive how it can be claimed there was any such acquiescence in this case. Lapse of time can only commence to run from the discovery of the circumstances until such discovery, or until such reasonable notice of what has happened has been given to the party injured, as to make it his duty, if he intends to seek redress, to make enquiry and to ascertain the circumstances of the case. No man can be supposed to acquiesce in that of which he was in entire ignorance. What are the circumstances under which we are asked to find an acquiescence in this case? The property being the property of William, then absent from the country, was, with other large property, placed by him in the charge of George, and George employed a solici

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