Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1885-10-10

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matter what or to what extent, SO it be material
to the transaction or to the relation of the par
ties TO the subjectmatter, and in many cases
where 1t is not material in either respect. 1t is
unfortunate ii our code has enacted this uni
fosmity of duty and obligations in relations
when valy as widely as human transact ions
can, or as can be conceived Of II would be
strange if such law were found upon the stat
ute-book of any civilized community. Stranger
still, perhaps, that counsel should commend .
such standard OF conduct as q high one, and I
protest against any lowering of such a standard 4
This would be TO establish rules governing the |
ordinary affairs of life above the moral vision /
OF the people. The enlightened conscience of +
at least the best and most cultivated should be |
able to discover the duty from the nature of the |
relation or transaction-o they become I
traps Tor the unWary and prolific seeds of I'M /
Just litigation. They would legalize bad faith !
ana encourage most shameful species of fraud :
In this ural have heard read case after case in
when, while the transaction has been success |
fully impeaehed, the Chancellor takes pains to
say that the losing PARTY has been guilty of no
wrong; This has struck me as reason TO ques-
ton the perfection OF Jurisprudence where
such results can be so common. Under this CON
struction our statute would increase the evil
thousandfold.
TRUSTEE AND CEsTuI QUE TRUST.
One of the eminent counsel for plaintiff does
not agree with this construction of the statutes
and can do no better than TO quote his Ian
guage:
ITO my mind these words do not in them
selves convey precise notions OF relative rights
and obligations. The words trustee and ccStgi
que trust are used with an infinite variety of
meaning and shades of distinction.
They no more imply a definite group Of du-
ties on one hand and lights on the other than
the words principal and agent in themselves
convey precise notion of the agents powers or
| the principals rights.
| when these are to be ascertained. in any
| given instance, it always remains to inquire how
the agent was construction what purpose,
what powers were conferred upon him, what
| functions he assumed to perform. All these
! must be known, and accurately known before
| it can be affirmed that, in u given case. there
| has been breach of duty. The same is true of
! a trustee.
''As there are an infinite variety of trustees,
! with duties equally various, the word trustee
does not in and ofltself convey any definite idea
of given duties.
"Besides, the word is often employed in a fig
| urat1ye sense or with metaphorical adiectiyes
| which indicate the looseness Gifts usage.
When, therefore, it is sought to determine
the duties of trustee in given case, the
greatest confusion is sure to arise if after estab-
fishing that he is in some sense a trustee search
| should be made in the digest, and the doctrine
of every precedent arising between trustee
and a ceStui que trust should be applied to the
case in hand
- To illustrate my meaning upon this point
a guardian is unquestionably the trustee of his
ward
-" 1t is also said that Judgment debtor, whose
property has been sold at judicial sale, from
| the day the period of redemption expires until
the execution of the Sheriff's deed is a trustee
| of the legal title for the purchaser Bnt would
any one contend that the duties and obligations
of each are the same?
- The law presumes that purchase made by
a legal guardian from his ward was obtained
| by the use of undue influence. Does that pre-
| sumption prevail when the owner of property
sold for taxes buys back from the purchaser the
| rights which he obtained from the sale?
The fact that a guardian has not paid full
value for the wards property is absolutely fatal
to the transaction. Does the owner who buys
| back the tax title run the risk of having his
purchase set aside because he succeeds in rescu-
ing his property at less than actual cost ~
1t may be said here that the difficulty is more
apparent than real. That in the case of the
purchase OF the tax title the vendor was evil
deutly not dealing on the basis that he was get
ting full value for his property. He expected
only large profit on his investment. He will
therefore, be held to have waived disclosure
and protection from the trustee. The same line
OF reasoning may be applied TO the case of the
| wholesale and retail merchant and in all such
cases. The circumstances show that there was
no actual reliance beyond the particular
assurance; and beyond that they will be held to
have waived the benefit of the relation This
suggestion has not been made in this case and
would probably be repudiated by all but it
seems to me that literal Interpretation of these
provisions of the coCe carried to their logical
end would neeesstate such a presumption, or
practically all business would be obstructed.
PARALYzING RIGIDITY OF THE CODE.
It would only be an awkward way of getting
rid of the paralyzing rigidity of the code, which
can but emDarrass Courts i'll the administration
of justice
One of the boasts of Courts of equity was that
these rules were in the highest degree flexible
and one Chancellor Is quoted as expressing the
hope that they would never become so definite
that they could not be freely varied to meet new
eXigencies as they should arise.
! The effort was rather to discern and seize upOn
the reason of the rules, and to apply that to the
circumstances of each case as it should present
itself
The general idea of a trust. as above stated
has reference TO the relation of the parties
where one holds the legal title to property for
another: The rights of the cestui were merely
| nor oil rT,., :
recognize the trustee as absolute owner; but
since he acquired title by virtue of the conf
dence of the trustor, that he would hold the
properly for the use OF another Courts of equity
will compel him to do what he has agreed to
do, and will prevent him from doing that
which he as in effect promised not to do. In
many other eases besides these, in which the
title to property is held in trust persons
acquire control of the property of another or
influence to control his conduct, or peculiar
knowledge OF his affairs, through confidence
reposed iii such persons, aud voluntarily ac-
cepted. In such eases, and perhaps others
wnere the circumstances are such that the
Courts of equity conclude that like rules
ought to be enforced, they are regarded as
trustees by analogy, because the same reasons
exist as in the case of strict trustees for the
enforcement OF the like good faith. But they
are regarded as trusts only so far as Justice re-
quires the applications of the like rules and
hence the great tleXibility of the law and the
great latitude allowed the Chancellor in their
application: In every trust which imposes
actual duties upon the trustee the trustee
becomes to certain extent the agent of
the beneficiary. He has become so through
confidence that he will, to the extent agreed
subordinate his interests to those OF the cestld
To that extent he will give the beneficiary the
benefit OF his faculties, his knowledge and his
position, but he is bound to this selfabnega-
ton no further than he has agreed. Knowing
what he has undertaken we can determine
what duties he owes his principal. and we de-
termine them from the nature and purpose of
the confidence precisely by the same process
by which we determine the obligations of
contract II is, in fact Il contract that the
trustee Will faithfully perform the confidence
The Obligations of trustee, defined by the
Courts and in the statute are the duties he
must perform in keeping this confidence He
must do all that was expected of him as n
consideration of the confidence; he must ab-
stain from every act inconsistent with that
relation. He must not allow himself to be
placed III position where he cannot give the
beneficiary the unbiased use of its faculties to
further the object of the confidence; and he
must not make a profit himself from the rela-
ton, to the possible injury of his ceStd In
pliedly, he has agreed to do and abstain from
these things to the extent 70 which he has
agreed to substitute and sefve another self in
lieu of his own proper self.
And these are the rules of the code, limited
always to the extent and character of the CON
fidence to be applied where applicable, and no
further,
ENDLESS VARIETY IN TRUsTEEsHIP.
The purposes for which trusts are created vary
as widely as the purpose of contracts, and the
degree of confidence implied by actual relations
|
and powers of asguardian an sttorney-at-law
from those of naked holder Of the legal title
for another. There was no active duty but
to convey upon request, but the others are
bound to give to their beneficiary service and
COUNSEL and TO be diligent to know that they
may wisely advise. Any enlightened con
science would suggest to the one difficulties in
the way of dealing with his beneficiary which
no one IMMERSED in the code would think of in
the other relation. In one relation it would
naturally suggest itself to the conscience of q
Just and reasonable man that he should not
purchase from his beneficiary until he had i'm
parted full knowledge in regard to the properly
and that he ought to be able to truly advise his
client of every material thing in reference to
the transaction. But what would suggest to
the naked trustee, who never had control or
management of the property, or acquaintance
with the beneficiary, that he owed his cestui in
such transaction counsel and advice against
himself?
The law of trusts has been said to be the
rule of the highest morality in business affairs.
Iii such code good mans conscience ought
to be a law unto himself. But no one. without
special guide, could follow these artificial
ways
TIE general rules in the code must be taken
as general rules only, and applicable only to
those cases which come within the reason of
them. When the reason of the rule ceases, so
should the rule Section 800, c. G.
Some remarks cited on the arguments, and at
tributed by counsel to Mr.. Justice Bradley of the