CHARLESTON.

#### James Flynn, Trustee, *et als. v.*C. A. Yeager *et al.*

Submitted November 8, 1921.

Decided November 25, 1921.

1. *Fraud*— Not *Deducidle from Facts and Circumstances Consistent with Honesty.*

Fraud is not deducible from facts and circumstances plainly consistent with honest intentions, either upon a demurrer to a pleading or in a finding upon evidence, (p. 521).

2. *Trusts*— Laches *Held Not Inapplicable to Express Trusts.*

Laches is not inapplicable to express trusts, but it is not so readily applied to them as it i's to contracts not involving any relation of confidence or trust, (p. 522).

3. *Same*— Trustee *Does Not Make Unauthorised Delegation of Authority in Employing ‘Agent to Assist in Execution.*

In the employment of an agent to assist him in the execution of his trust, a trustee does not make any unauthorized delegation of hist authority, (p. 523).

4. Appeal and *Error*— Finding *as to Existence of Relationship Supported by Sufficient Evidence Will Not be Disturbed.*

The findings of a trial court upon issues as to the existence of the relation of principal and .agent between parties, and the capacity in which the alleged agent holds certain real estate conveyed to him and partly paid for by the alleged principal, supported by facts, circumstances, conduct and correspondence very strongly tending to corroborate the oral evidence in their favor and to overthrow the opposing oral evidence, will not be disturbed by the appellate court, (p. 624).

5. *Property*— Agent’s *Payment of Part of Purchase Price is Not Conclusive of His Ownership of Land.*

Payment by an agent of part of the purchase money of land conveyed to him and claimed by him as his own, is not conclusive evidence of his individual ownership thereof; since an agent may expend his own money in the execution of his agency and, in such case, is entitled to be reimbursed therefor in settlement with his principal, (p. 524).

Appeal from Circuit Court, Pocahontas County.

Suit by James Flynn, trustee, and others against C. A. Yeager, trustee, and others. From a decree adjudicating *521plaintiff’s right to enforcement of an express trust in real estate and referring the canse to a commissioner for ascertainment of facts essential to final settlement, the defendant C. A. Yeager appeals.

*Affirmed.*

*A. P. Edgar, F. B. Hill,*and *Andrew Price,*for appellant.

*T. N. Bead,*and *L. M. McClintic,*for appellees.

Poffenbarger, Judge:

On this appeal from a decree adjudicating right in the plaintiffs to enforcement of an express trust in real estate and referring the cause to a commissioner for ascertainment of facts essential to final settlement and determination of the rights of the parties, it is contended that the demurrer to the bill should have been sustained on the ground of its alleged disclosure on its face, of fraud on the part of the plaintiffs, laches and lack of equity, and also that the trial court’s finding on the issue of fact, made by the pleadings, is contrary to the 'weight of the evidence.

No revelation of fraud is found in the allegations of the bill. They show that the plaintiffs employed the defendant, Yeager, as their agent to procure extensive and valuable tracts of timber and timber rights in Pocahontas County, upon his representation that he was a real estate agent and could procure said properties for them, at reasonable prices, and that it was agreed, among other things, that, in every case in which the owners of the lands optioned should refuse or fail to pay him a commission of five per cent, on the purchase price, they, the plaintiffs, should pay it. There is no occasion to inquire whether a secret arrangement or connivance between them and Yeager as agent of the vendors of the timber and lands, by which the transactions should be so conducted or manipulated as to make his principals pay the commissions, would preclude the relief sought by the bill, on the ground of fraud. It suffices to say the bill makes no admission of concealment, secrecy or obliquity of conduct on the part of the agent, participated in by the plaintiffs. The allegation relied upon as being an admission or making a dis*522closure of fraudulent purpose respecting the vendors is clearly consistent with openness and frankness on the part of the agent with all parties concerned in every transaction. Not a word in the bill imports an admission or charge that knowledge of the relation between the plaintiffs and Yeager was to be withheld from the vendors. An agent or broker, and especially a mere middleman, may represent both parties to a contract and be compensated by each of them, if both are fully informed as to his attitude and all elements of the transaction, as these parties may have been in all of the instances mentioned or referred to in the bill. *Peters*v. *Riley,*73 W. Va. 785; *Runnion*v. *Morrison,*71 W. Va. 254; *Cassidy Fork B. & L. Co.*v. *Terry,*69 W. Va. 572.

Nor is there any disclosure of facts or circumstances on the face of the bill, constituting laches. The properties in question are but two of more than thirty tracts with reference to which the parties dealt, and part of the timber on another, and the time intervening between the acquisition of the titles by Yeager and the institution of this suit, was less than four years. In that period, they transacted a large amount of business, and the lands in question were not fully paid for until a date within two years just preceding the institution of this suit. The plaintiff, James Flynn, Trustee, paid $100.00 on -it as late as April 4, 1916, and this suit was brought in August, 1917. The bill sets forth correspondence dated in September and December, 1915, containing admissions by Yeager, of Flynn’s interest in these two tracts of land. Laches runs against an express trust, but the rule does not apply with the same degree of rigidity as in the case of contracts, in which' there is no relation of trust or confidence. The illustrations of its application in cases of express trusts, found in *Roush*v. *Griffith,*65 W. Va. 752, make it manifest that the elements essential thereto do not appear here.

In the evidence, the argument submitted on the theory of laches has less foundation than in the bill. Flynn testifies that, from the beginning of his transactions with Yeager, in 1913, down to June, 1917, there was no repudiation of the alleged trust by Yeager, and the correspondence between them corroborates his testimony. The Spice Run Lumber *523Company, a corporation, represented by Flynn, as trustee, in his transactions with Yeager and, through him, with others, seems to have become financially embarrassed about the year, 1916, and its enterprise was taken over and operated by the Brookville Title and Trust Company. About the time it took charge of the property, the general manager of- the Spice Run Lumber Company, appointed at its instance, approached Yeager for information concerning these two tracts of land, and was told they did not belong to the company.. He reported this to Flynn who says Yeager denied it when he spoke to him about it and promised to make up a statement of the cost of the land and convey it to Flynn or his company. The dates of these alleged conversations are not disclosed; but, in April, 1916, Flynn made a payment on the purchase money of these lands, and, on June 1, 1917, he requested Yeager in writing to make up a statement of the amount due on the property, and told him the president of the Brookville Title and Trust Company would pay it at once. This demand was repeated by a letter dated, July 6, 1917. The fact that Yeager had conveyed one of the tracts to S. A. Sparks by a deed dated, February 14, 1914, -and recorded, April 7, 1914, reserving the timber, has no important bearing upon this inquiry. If Flynn knew it, he did not abandon his claim of right. He probably had no objection to the conveyance of the land, since his real interest centered in the timber, which Yeager still held. As the bill does not seek disturbance of Sparks’ title, the element of estoppel is not involved. The delay has not been unreasonable in point of time, no loss of evidence has occurred and no disturbance is sought of any right acquired by a third party.

The bill does not admit any delegation of discretionary powers by .the trustee, if, in the event of his having done so, Yeager could complain of it. He simply employed Yeager as his agent to make contracts or procure offers of sale, subject to approval by his employer.

As the bill alleges an express trust and the relation of principal and agent, making Yeager a trustee as to the tracts of land in their entireties, and not a resulting trust, it was not necessary to disclose the proportion the money paid by the *524principal bears to the whole amount of purchase money. *Shaffer*v. *Fetty,*30 W. Va. 261, has no application.

The two tracts of land contained, respectively, 234 acres and 135 acres, and were owned by the heirs of William Dean. Yeager claims to have commenced his negotiations for purchase thereof, in 1912, but he had accomplished nothing with reference to them, in June, 1913, when he seems to have succeeded in enlisting Flynn’s interest in the. timber of the section in which they are situated, and he included them in lists of prospective purchases, he rendered to Flynn. No money was paid on account of either tract earlier than July, 1913. On September 29, 1913, Flynn gave his cheek for $900.00 to J. A. Sydenstrieker, cashier of the First National Bank of Marlinton, to pay for four interests in one of the tracts and five in the other, and the money was so applied.' A check for $400.00 drawn September 30, 1913, by Yeager and payable to him out of Flynn’s account, was applied on the Dean land purchase money. Another for $318.00 drawn by Flynn, Trustee, payable to Yeager and dated, September 21, 1914, was so applied. One for $100.00 drawn by Flynn, payable to the cashier and dated, April 4, 1916, was applied on a purchase money note owned by Mrs. Nancy R. Dean. The purchase money notes were executed by Yeager and the conveyances made to him. Admitting these payments or advancements by Flynn, he claims they were loans made to him, with which to make payments on his own purchases. To sustain him in this contention, he produces two witnesses, Geo. M. Sutton and William Bruffey, who say they heard conversations between Flynn and Yeager, concerning the purchase of the Dean lands, in which the former encouraged the latter to buy them and told him that, if he should need money for the purpose, he knew where to get it, meaning that he, Flynn, would furnish it. Admitting the possibility of conversations between them, heard by Sutton and Bruffey, Flynn denies that they ever heard him agree or offer to advance money for any purchase by Yeager on his own behalf, and says he was unable to furnish more money than was needed for his own purposes. Three of the Deans say they understood from Yeager that he was buying the land for Flynn or the *525Flynn Lumber Company. John F. Clark, billing clerk for the Spice Run Lumber Co., testified that Yeager had told him he was buying the lands for Flynn, or the company, and taking the title in' his own name, on account of the number of the interests to be acquired and the probabiHty that he could obtain them at lower prices in that way. The uncontro-verted facts and circumstances the trial court may have invoked in the determination of this conflict in the oral evidence, against the defendant, are. amply sufficient. It is improbable that the plaintiffs, in buying up and consolidating numerous tracts of timber and building an expensive railroad for access to it, were willing to finance their agent in the acquisition of a part of the timber for his own account. It is unlikely that they would want to give their agent the benefit of the enterprise. Such undertakings require large amounts of money and all the circumstances tend to prove- the plaintiffs had no more money than they needed. The correspondence and memoranda concerning the Dean lands bear no evidence of a loan transaction. On the contrary, they are perfectly consistent with the theory of the trust relation asserted by the bill. As Yeager was acting for the plaintiffs, as their agent, their correspondence ought to be taken, in the absence of anything to the contrary appearing in it, as relating to agency transactions. Nowhere in any of it is there an intimation that the Dean lands were bought in an individual capacity. The only circumstances that could be treated as evidence of it are the taking of the title in the name of the agent and execution of his own notes for purchase money. But these are negatived by large payments of the notes by the principal. Yeager made some payments on the land out of his own funds, but not until after he had induced Flynn to buy timber in that section, with intent to extend his railroad to it. He was working for Flynn in June, 1913. He took a conveyance of two interests in the Dean lands from Sutton, July 18, 1913. This was his first purchase. Before and after that date, he treated the purchase as having been made on behalf of his principal. For these two interests, he seems to have paid about $350.00, and, after that, Flynn began paying his notes for other interests. *526In addition to what he paid Sutton, he seems to have paid about $1,100.00 or $1,200.00 more. This has not been refunded, but failure to refund it may be attributed to two causes.' Yeager never tendered a conveyance nor sought reimbursement as ^o his outlay. Before all of the purchase money was paid, financial embarrassment overtook the Spice Run Lumber Co. and Flynn, by reason of conditions growing out of the war. "When this was overcome, Yeager attempted to repudiate his trust. Payments of purchase money by Yeager are not conclusive in his favor. The right of an agent to advance money for his principal, in the execution of his agency, and to be reimbursed, is incontrovertible. *Ruffner*v. *Hewitt,*7 W. Va., 585; Mechem, Agency, sec. 1600 et seq.

Having carefully considered the evidence, facts and circumstances, we are of the opinion- that the findings of the trial court, as to the relation between the parties and the status of the land and timber in controversy, cannot be disturbed and ought not to be; wherefore the decree complained of will be affirmed.

*Affirmed.*