
    Wheeling.
    Morris vs. Joseph.
    January Term, 1866.
    Í; A trustee de son tort, is he who of his own authority enters into the possession or assumes the management of property which belongs to another ; and he is subject to the same rules and remedies as other constructive trustees.
    3, M. assumed the control and management of the personal property and real estate of L. He leased the land for the year beginning April 1st, 1844, and ending April 1st, 1845, and received the rent therefor: the land was returned delinquent for the non-payment of taxes for the year 1844, and sold in October, 1845, when M". became the purchaser. Held :
    1. That having undertaken the management of the land, he was bound to act with reasonable diligence in the execution of his trust, and should not have neglected so essential a matter as the preservation of the right to the land by his cestui que trust; and it would be inequitable to permit him to become the owner of the land on a delinquency which occurred in the year which he was leasing the land and receiving the rent.
    3. Although the fiduciary relation may have ceased at the time of the delinquent sale ; yet that sale having been occasioned by his wrong he should not be allowed to profit by it.
    
      George, Me Oulloch obtained a decree in the circuit court of Tyler county, at the fall term, 1844, against George Lefever, for 140 dollars and 50 cents, and the court ordered tbe sale of a tract of land, lying on Middle Island OreeJc, containing 100 acres, in discharge of the decree. At the sale McCulloch became the purchaser, and at the spring term, 1845, it was confirmed and the commissioner ordered to convey the land, which he did by deed dated June 2nd, 1845. McCulloch on the 14th day of November, 1848, sold and conveyed the land to Waitman F. Joseph.
    
    In June, 1853, James Morris instituted an action of ejectment in the circuit court of Tyler, against Joseph to recover the said tract of 100 acres of land, and at the September term, 1856, the defendant, Joseph, withdrew his plea of not guilty, reserving equity, and judgment was bad against him. He therefore filed a bill in the same court, alleging that, he had -purchased of McCulloch, who purchased under the decree as before stated. That in 1844, the tract of 100 acres was on the land books of Tyler, in the name of Lefever; that James Morris was the agent of Lefever, and during the year beginning April 1st, 1844, and .ending April 1st, 1845, had leased the land to one Varner for the sum of 15 dollars, and had collected the rent, and that at any time during the year there was sufficient property on the premises to pay the taxes thereon due the State. That the land was returned delinquent for that year for the non-payment of taxes, and was sold by the sheriff for such taxes on the 13th day of October, 1845, and bought by Morris for the sum of 55 cents, the amount thereof and the damages, and that a deed had been made to him in conformity to law, by the clerk of Tyler county court. That he never knew of the non-payment of taxes for the year 1844-45 until he learned that Morris was setting up a claim to the land. That from the period of his purchasing the land from McCulloch, to the institution of the action of ejectment, he had greatly improved the land by fencing it and making other repairs, thereby greatly increasing its value, and that Morris had frequently passed the premises and observed the process of repairs. He also alleged fraud on the part of Morris in permitting the land over which he was the agent and of which he had the management, to be sold for non-payment of taxes, when he received the rent arising therefrom and which was amply sufficient to pay said taxes, and himself becoming the purchaser by virtue of his own wrong and bad faith to his principal, Lefever. He asked that Morris might be enjoined from executing his writ of possession under the judgment in ejectment. The injunction was granted. Morris answered that Lefever left the country in 1843, and had not since been heard from; that he left a wife (who was a niece of Morris) and children in helpless and indigent circumstances, and that with the approbation of the wife he rented the land in controversy to Varner as alleged in the bill, and applied tbe proceeds to ber support; tbat there was' sufficient property on tbe premises in tbe year 1844 to pay tbe taxes assessed thereon, and tbat Lefever’s wife left tbe county before October, 1845, and tbat be did not retain tbe rent received from Varner after it was paid him; tbat tbe use of tbe land would be adequate compensation for all improvements placed on it by Joseph; tbat be bad no knowledge of tbe land having been returned delinquent until tbe day it was sold, and be disclaimed all tbe allegations of fraud and dishonesty of tbe bill, and claimed tbat Joseph bad notice of bis title when be purchased in 1848 of McQulloch, by reason of bis title being of record in tbe proper office.
    Tbe deposition of Ashherry Varner, filed by tbe complainant, proved tbat he occupied tbe land as alleged in tbe bill; tbat be rented of Morris who told him tbat be had authority to rent it; tbat be subsequently told him be rented it for tbe use of J^efeven’s wife; tbat there was property on the land in 1844 out of which tbe taxes could have been made, and tbat be paid tbe rent to Morris, a part before, and tbe residue after tbe term expired. The testimony of Hiram M. Doak proved tbat in 1843 or 1844, Morris wanted him to go to Wheeling, where Lefever was confined in jail, as a witness for him, and tbat Morris proffered him money for the purpose of bearing bis expenses, saying tbat be bad all of Lefever’s business to attend to. William Anhron’s deposition proved tbat be knew of Morris attending to Lefever’s business; that he advertised his property for sale and appended bis own signature thereto, and controlled and managed it, and that he attended to Lefever’s business whilst be was said to be in jail at Wheeling, and from time to time until his family moved away.
    The circuit court perpetuated tbe injunction at the April term, 1859, and Morris appealed to this court.
    
      G. H. Lee, for tbe appellant.
    
      J. M. Stephenson, for tbe appellee.
   Harrison, Thomas W., L,

delivered the opinion of the court.

The only question fairly arising in this case, is that of fraud on the part of the appellant. The appellee filed his bill of injunction in the circuit court of Tyler county. The facts in the case are in substance, that Morris, the appellant, in the year 1844 acted as the.general agent of one Lefever, (who left the country in 1843, and had not since been heard of) under whose title the appellee claimed: that in the same year the appellant rented to Varner the tract of 100 acres of land in controversy in this cause and received the rent; that the land was returned delinquent for non-payment of taxes thereon for the year 1845, amounting to 50 cents, and was sold in October, 1845, for that delinquency and purchased by the appellant for his own use and benefit; that he obtained a deed from the clerk and brought ejectment to recover of appellee the land; that judgment was rendered by default; that the land in controversy was sold in the year 1844 or 1845, under a decree of the circuit court of Tyler county, for the debts of Lefever, and the appellee held it as derivative purchaser under that sale. The appellee alleged in his bill, that the action of the appellant in the premises was fraudulent as to him, and therefore the purchase should be held to be for the benefit of Lefever and his alienees, and prayed an injunction to the judgment, which was granted and by subsequent decree, perpetuated.

A trustee de son tort is he, who of his own authority enters into the possession, or assumes the management of property which belongs beneficially to another: Iiill on Trustees, 246, and notes; and he is subject to the same rules and remedies as other constructive trustees; Ibid, 247.

The appellant in his answer states that he assumed the management of the property in controversy, being the relative of Lefever’s wife. lie told the witness, Varner, that he had authority to rent it. He received the rent and disposed of it; he managed, controlled and disposed of other property of Lefever. He said to the witness Doak, that he ■had all of Lefever’s business to adjust. The testimony of I)oak and Ankron proves that he attended to Lefever’s business generally.

We are of opinion that the appellant was the trustee and agent of Lefever. Having undertaken the management of Lefever’s property, we think he should not have neglected a matter so essential to the interests of his cestui que trust and principal, as the preservation of his right to the land by payment of taxes on it. He should have acted in relation to it with reasonable diligence. 2 Story’s Equity Juris § 1275.

Whether he would be liable in damages for this neglect or not, surely it would be inequitable to permit him to become the absolute owner of a tract of 100 acres of land for the sum of.55 cents, on a delinquency which occurred in the very year in which he was renting it and receiving the rents. Although the fiduciary relation may have ceased at the time of the delinquent sale, yet that sale was occasioned by his wrong, and.he at least should not be allowed to profit by it. 1 Story’s Eq. Juris, § 321-22.

We think the decree of the court below is right, and the same is affirmed.

Decree Affirmed with damages.  