Opinion
(December Term, 1845.)
Where a clerk in a store pilfered money and good from his employer, and laid out the proceeds in the purchase of a tract of land: Held, that the person thus robbed could hold neither the clerk nor his representatives after his death as trustees of the land for his benefit, so as to enable him to call for a conveyance of the legal title to himself.
Cause removed from the Court of Equity of WAKE, at Fall Term, 1845.
Badger for the Plaintiff.
Manly for the defendants.
The bill states that the plaintiff kept a retail shop in Raleigh and that a lad, by the name of John Farrow, was his shopkeeper for several years: and that, while in his employment, Farrow abstracted, to a considerable amount (95) money and goods belonging to the plaintiff, and that with the money of the plaintiff, taken without his knowledge or consent, Farrow purchased a tract of land at the price of $500. The bill states a great number of facts, tending to show that Farrow paid for the land with the effects of the plaintiff, which he dishonestly converted to that purpose. Farrow afterwards died under age, and the land descended to his brothers and sisters' and the plaintiff, having discovered his losses of money and merchandise, and that Farrow had purchase the land as aforesaid, filed this bill against his heirs, and therein insists, that he has a right to consider the purchase as made, and the land held, for the use of the plaintiff, and that Farrow should be declared a trustee for him.
The bill was answered, so as to put in issue the various charges of dishonesty by Farrow, and the fact that the land was paid for with money purloined from the plaintiff: and much evidence was read to those points.
The Court, though naturally inclined to every presumption in favor of innocence, and especially of a young person, who seems to have been so well thought of while he lived, is satisfied from the proofs, that the plaintiff was much plundered by this youth; and we have no doubt, that every cent of the money with which he paid for the land, he had pilfered from his employer. Nevertheless, we believe the bill can not be sustained. The object of it is to have the land itself, claiming it as if it had been purchased for the plaintiff by an agent expressly constituted; and it seems to us, thus stated, to be a bill of the first impression. We will not say, if the plaintiff had obtained judgment against the administrator for the money as a debt, that he might not come here to have the land (96) declared liable, as a security, for the money laid out for it. But that is not the object of this suit. It is to get the land, which the plaintiff claims as his; and, upon the same principle, would claim it, if it were worth twenty times his money, which was laid out for it. Now, we know not any precedent of such a bill. It is not at all like the cases of dealings with trust funds by trustees, executors, guardians factors, and the like; in which the owner of the fund may elect to take either the money or that in which it was invested. For in all those cases, the legal title, if we may use the expression, of the fund, is in the party thus misapplying it. He has been entrusted with the whole possession of it, and that for the purpose of laying it out for the benefit of the equitable owner; and therefore all the benefit and profit the trustee ought, in the nature of his office, and from his relation to the cestui que trust, to account for to that person. But the case of a servant or a shop-keeper is very different. He is not charged with the duty of investing his employer's stock, but merely to buy and sell at the counter. The possession of the goods or money is not in him, but in his master; so entirely so, that he may be convicted of stealing them, in which both a cepit and asportavit are constituents. This person was in truth guilty of a felony in possessing himself of the plaintiffs effects, for the purpose of laying them out for his own lucre; and that fully rebuts the idea of converting him into a trustee. If that could be done, there would be, at once, an end to punishing thefts by shop men. If, indeed, the plaintiff could actually trace the identical money taken from him, into the hands of a person who got it without paying value, no doubt he could recover it; for his title was not destroyed by the theft. But we do not see how a felon is to be turned into a trustee of property, merely by showing that he bought it with stolen money. If it were so, there would have been many a bill of the kind. But we believe, there never was one before; and therefore, we can not entertain this. But we think the facts so (97) clearly established, and the demands of justice so strong on the defendants to surrender the and to the plaintiff, or to return him the money that was laid out in it, that we dismiss the bill without costs.
PER CURIAM. DECREED ACCORDINGLY.
Cited: Winfield v. Burton, 79 N.C. 395; Edwards v. Culberson, 111 N.C. 344.