Doggett v. Emerson et al.

land, I entertain no doubt except on the point, whether his interest was so extensive that he should be charged in the first instance for the whole consideration, or only one fourth of it.

That he was a party in interest to some extent, must have been decided by the Judge who made the decree, or he would probably have directed the bill to be dismissed in respect to Emerson.

From the proof in the case, also, it is manifest, that he was, in truth, one of the purchasers of the land in dispute, from the State. That beside this, he was one who joined with the other owners, as copartners in interest, in authorizing himself, as agent of all of them, to dispose of the land on certain specified conditions; that he made the sale and took the money and notes therefor―the notes running to himself on account of the owners, who had constituted him agent; and that though in one of the writings given to Williams, he speaks of reserving one fourth of the land from sale for himself and some other persons, yet he then took no deed of that fourth from the State to himself, or to himself and others; nor did he take any afterwards when the consideration was divided; nor did he then take releases or quit-claims from the other owners.

Whatever intentions or expectations he may have then formed of retaining one fourth for himself and some of the other owners, or whatever arrangements he and the other owners made by parol at the time of the division of the consideration, the legal title, after the purchase from the State, stood thus. Till different and actual conveyances some time after, made it otherwise, it must be regarded either as in the State alone, (no deed having then been executed by the State of the one fourth,) or if in the respondents, under the contract with the State, then in all of them jointly; as all jointly are named in the receipt for the money and in the promise to convey, which was made by the agent of the State, and all

Doggett v. Emerson et al.

jointly had become responsible to the State by joint notes for the consideration.

If we go next to the collateral evidence, it seems that the State was to convey to all of them, including Emerson, and that his portion was to be one fourth, Farren one fourth, Roberts one fourth, and Norcross and Mason, as a commercial firm, one fourth.

Looking still further to the written power given by all of them to Emerson, as their agent, to sell the whole at a given price, it was signed by all, and evidently contemplated that Emerson should take a deed of the whole land from the State, and sell the whole on account of all as owners of undivided portions.

Thus, the promise by the agent of the State to convey the land, is in terms made to them all by name; and agrees "to deed the same to them, whenever they shall call on me for that purpose at the land office," and bears date February 21st, 1:35. The same day they all by name jointly empowered Emerson "to take a deed of the same," which must be of the whole, and to sell it, "if opportunity should present," and account for it in four equal shares, such being recited to be their true liabilities on the notes to the State.

It is contended by the respondents, that the construction of this power is, that Emerson should sell the whole of this interest or none, and not three fourths of it; and when the proceeds of the sale of three fourths were divided, it is believed that the settlement was closed on that basis, by his paying over to the others all which the whole of their shares would sell for, and retaining in himself all the one fourth, the residue of the land not sold.

It may be sound law, that in a case like this, a power to sell the whole land would not imply a power to sell a part at the same rate undivided. Though we see no evil in a construction of the power allowing a sale of a part, except that it would admit new co-owners not wanted. But the proprietors

Doggett v. Emerson et al.

were liable to that before by Emerson's selling his own one fourth to whomsoever he pleased.

It is not, however, necessary to decide this question, as the parties agreed anew and after the sale, to treat this as a sale of the whole of all the interests of all the co-owners except Emerson. This, it is supposed, they also completed by deeds at some subsequent period, though not at that time.

In any legal view, then, of the title and the written agreements at the time of the sale to Doggett, Emerson must be considered as having at first the title to the whole land as agent for the whole, (regarding in equity that as done which was agreed to be done,) or he must be considered as having the title of one fourth undivided as principal, which all concede he was to receive as one of the principals, and which he maintains is still in him. He was, then, interested at the time of the sale, and had a title to something as fully as any of them, but to how much we will examine further hereafter. As another guide in coming to a conclusion, whether he is to be treated as then having some interest in the land conveyed, and hence to be liable for some of the consideration, it is manifest that the purchasers looked to him alone, through Williams, his sub-agent, for obtaining this title. That he wrote to the agent of the State to make the deed to the complainant, of his one eighth; that the notes for the consideration run to him, or were indorsed by Williams to him alone; and that, if any other circumstance had occurred, rendering an action at law proper for recovering back the money paid to the plaintiff, it could have been sustained against Emerson; or if the money received by Emerson of Doggett had proved to be counterfeit, that Emerson in his own name could have sued Doggett to recover the whole

amount.

It is my opinion, then, that Emerson was interested in the land not only one fourth, but that the legal rights of the parties, at the time of the sale to the complainant, were in Em

Doggett v. Emerson et al.

erson as agent for the whole, to demand and receive a deed of the State for the whole; and then to convey to purchasers such portion as he was authorized to, as agent for all.

The title to the whole must, then, be considered to have been in him when the plaintiff bought, to be disposed of for the benefit of himself and the rest of the purchasers in conformity to his contract with them.

So situated, he sells one undivided eighth to the complainant. It was one eighth of the whole and not of three fourths. It gave a title to partition of the one eighth, out of and from the whole, not out of three fourths; and the only distinction or difference in the case from this is one of form, and arises from the circumstance, that the conveyance was made directly from the State to the vendee by Emerson's request, rather than first to Emerson and then by him to the vendee. This cannot, however, alter the equitable or legal view of the transaction as among these parties.

Emerson thus bargained away, as holder in trust, as agent for all the owners, this one eighth of the whole land. He conveyed it to the plaintiff through the State - he received the whole consideration — and, on account of all this, if the conveyance be avoided, he must be considered as in the first instance, liable for the whole.

In the next place, having paid over that consideration to the other respondents, as each was originally entitled to one fourth of it, considering Norcross and Mason as one firm, they are each, as original owners to that extent in the whole, bound to refund one fourth.

Here the case on this point would end, looking to no subcontract, or arrangement among these parties subsequent to the sale, and generally looking to none, in fixing the liability if made with others beforehand, and not before it had been carried into legal effect. For this reason, I do not regard, as affecting the liability under this bill, the subsequent agreement of Le Breton and Moody to buy. of Norcross and Mason, and

Doggett v. Emerson et al.

another sub-contract with Goss and Mitchell, and others of like character referred to.

But as Emerson and all the other parties to the bill concur in admitting, that before the consideration was actually divided, they agreed, that the others should take one third of it instead of one fourth, and consider the three fourths of the whole land sold to Emerson as their three fourths, and the one fourth retained as his—it seems right, in considering the amount of damages or money to be returned, to make them refund one third each in aid of Emerson. This does not affect the question of liability, but merely the amount which it is equitable for some to refund, and is distinguishable from other arrangements, either with others not parties, or among parties at subsequent periods; and it conforms to the truth of the case among those possessing the legal title.

It makes Emerson liable at first for all, as entitled to a deed of all from the State as agent, and then the others liable in aid of him for all, as they afterwards agreed to be.

This conclusion, as to Emerson's liability to refund all, would not be very different, if Emerson had possessed no title to the whole.

In cases of this kind, where there is an agency coupled with an interest in the land, or an interest in the consideration of the sale, though not in the land itself, we see no objection in principle where the agent receives actually, in the first instance, the whole consideration, and through fraudulent representations of himself and others under him, the sale is avoided, why he should not be held responsible for refunding the whole.

Such is not the case of a mere naked agent or attorney, receiving money and paying it over for the purpose received, and who may be exonerated afterwards in certain cases, from liability to refund. But it is the case of an agent or attorney interested in the matter sold and interested in the proceeds, and one whose misconduct renders a return of the