QUINN ET AL. v. PHIPPS

TERRELL, J. —

This case is not without its difficulties. The essential facts on which it is grounded are as follows: Quinn, the appellant, was a real estate broker residing and doing business in Palm Beach County, Florida. Jennie E. Watson was a citizen of Boston, Massachusetts, and owned certain lands in Palm Beach County, more specifically described in the bill of complaint. She corresponded with Quinn about the value and sale of these lands late in 1921 and early in 1922. About April 8th, 1922, Quinn told J. B. McDonald, Phipps' agent, that he had a price on Mrs. Watson's lands in Palm Beach County, and asked him (McDonald) to assist him (Quinn) to secure a purchaser for them. With Quinn's knowledge and consent McDonald conveyed this information to appellee, Phipps, who authorized McDonald to make Quinn a cash offer of $50,000.00 for the property. McDonald communicated the offer to Quinn, and on behalf of Phipps requested Quinn to convey the offer to, or negotiate the purchase from Mrs. Watson. McDonald asked Quinn to communicate the offer to Mrs. Watson by long-distance telephone, which Quinn declined to do, but instead agreed to proceed at once to Boston and negotiate the sale on behalf of Phipps and to communicate the result of his negotiation to Phipps at his New York office. On his arrival in Boston Quinn saw Mrs. Watson and learned that she would sell the property for $45,000.00. He said nothing about Phipps' offer, but procured an option agreement to buy the land from her in his own name, and then went to New York and told Phipps that "he had tied up" the property, but was unable to get a definite proposition at that time on account of uncertainty in the acreage. On his return to West Palm Beach Quinn told McDonald that he had tied up the property for himself. McDonald demanded an assignment of the option and offered to refund Quinn's expenses and the advance payment, and to pay the purchase price when due. Quinn refused to assign or to accept anything at the hands of McDonald.

Predicated on these facts, John S. Phipps on April 29th, 1922, filed his bill of complaint against Porte F. Quinn and Jennie E. Watson, praying that the option secured by Quinn from Mrs. Watson and the lands described therein be decreed to be held in trust by them for the sole benefit of the complainant; that Quinn be directed to convey his interest in the said lands then held or later accruing to him under the said option to Phipps upon being reimbursed for any payments made by him on the purchase price and for expenses, that Phipps be decreed to stand in the place of Quinn in the purchase from Mrs. Watson, and that Mrs. Watson be ordered to convey the lands to Phipps upon compliance by him with the terms of the option.

A demurrer to the bill of complaint was overruled and defendants answered. John C. Gregory claimed half interest in the lands by virtue of a conveyance from Quinn dated August 2, 1922, long after this suit was filed, and on petition was allowed to intervene and file his answer. Quinn's answer denied all the material allegations of the bill. Testimony was taken by a special master and on final hearing, August 6, 1924, decree was entered as prayed in Phipps' bill. This appeal was prosecuted by Quinn and Mrs. Watson and intervening defendant Gregory from the final decree.

The first assignment of error is predicated on the refusal of the Chancellor to sustain the demurrer to the bill of complaint. The second assignment of error is predicated on the refusal of the Chancellor to dismiss the bill on final hearing, and the third assignment of error alleges that the final decree is not supported by the allegations and theory of the bill of complaint. All three assignments will be treated together since the primary question presented by them is whether or not there was a fiduciary relation established between Quinn and Phipps.

The term "fiduciary or confidential relation" is a very broad one. It has been said that it exists, and that relief is granted, in all cases in which influence has been acquired and abused — in which confidence has been reposed and betrayed. The origin of the confidence is immaterial. The rule embraces both technical fiduciary relations and those informal relations which exist wherever one man trusts in and relies upon another. Words and Phrases (2nd series) 529; Irwin v. Sample, 213 Ill. 160, 72 N.E. Rep. 687 (quoting and adopting definition in 2 Pomeroy's Eq. Jur., par. 947, page 956).

In Beach v. Wilton, 244 Ill. 413, 91 N.E. Rep. 492, the Court, adopting the language of Pomeroy in his Equity Jurisprudence (3rd ed.), Vol. 2, Par. 956, defines the term fiduciary relations and outlines the conditions under which relief will be granted from its abuse, in the following words:

"Courts of Equity have carefully refrained from defining the particular instances of fiduciary relations in such a manner that other and perhaps new cases might be excluded. It is settled by an overwhelming weight of authority that the principle extends to every possible case in which a fiduciary relation exists as a fact, in which there is confidence reposed on one side and the resulting superiority and influence on the other. The relation and the duties involved in it need not be legal. It may be moral, social, domestic, or merely personal. The rule as thus stated has been repeatedly quoted with approval by this Court. Roby v. Colehour, 135 Ill. 300, 25 N.E. 777; Thomas v. Whitney, 186 Ill. 225, 57 N.E. 808; Walker v. Shepard, 210 Ill. 100, 71 N.E. 422; Irwin v. Sample, 213 Ill. 160, 72 N.E. 687. The fiduciary relation exists between parties where there is a relation of trust and confidence between them, that is, where confidence is reposed by one party and a trust accepted by the other. In Mayrand v. Mayrand, 194 Ill. 45, page 48, 61 N.E. 1040, page 1041, this Court said: 'The term "fiduciary" or "confidential" relation, as used in this connection, is a very broad one. It has been said that it exists, and that relief is granted, in all cases in which influence has been acquired and abused — in which confidence has been reposed and betrayed. The origin of the confidence and the source of the influence are immaterial. The rule embraces both technical fiduciary relations and those informal relations which exist whenever one man trusts in and relies upon another. The only question is, does such a relation in fact exist?' "

Stripped of all embellishing verbiage it may be confidently asserted that every instance in which a confidential or fiduciary relation in fact is shown to exist will be interpreted as such. The relation and duties involved need not be legal, they may be moral, social, domestic or personal. If a relation of trust and confidence exists between the parties, that is to say, where confidence is reposed by one party and a trust accepted by the other, or where confidence has been acquired and abused, that is sufficient as a predicate for relief. The origin of the confidence is immaterial.

Now let us inspect the record and see what it reveals to establish a relation of trust and confidence between Quinn and Phipps. It is shown that Quinn was a real estate broker doing business in West Palm Beach, that McDonald was the agent of Phipps, that Quinn on his own initiative approached McDonald and told him that he had a price on Mrs. Watson's property and requested him (McDonald) to assist him in finding a purchaser for it; that McDonald immediately communicated this information to Phipps, who authorized him (McDonald) to submit to Mrs. Watson through Quinn a cash offer of $50,000.00 for the property. It is further shown that McDonald urged Quinn to submit the offer to Mrs. Watson by long-distance telephone, but Quinn refused, agreeing instead to go to Boston in person to negotiate the purchase for Phipps. Quinn proceeded at once to Boston in compliance with his agreement with McDonald, but after interviewing Mrs. Watson, instead of purchasing for Phipps, he purchased the property for himself at $45,000.00 and made no mention of Phipps' offer. The testimony of McDonald is positive as to all these facts and his testimony is strongly corroborated by that of David T. Layman, John S. Phipps, George M. Osborne and Mrs. Watson. The record also contains many revelations and recitations strongly supporting McDonald's testimony. It is true that Quinn denies every material allegation affirmed by McDonald, but testimony is uncorroborated and his conduct touching his relations to Phipps, Mrs. Watson and his co-defendant Gregory not only rebuts his testimony, but it was entirely out of harmony with any code of business or professional ethics known to this Court. The Chancellor believed McDonald's version of the facts and his finding is amply supported by the record.

Appellants urge that McDonald's testimony is materially weakened by his response to the following question propounded on direct examination: "Was he to make that proposition for Mr. Phipps?" His response was, "I certainly thought so. If I had not I would not have fooled with it." It is contended by appellants that McDonald's response, not being a direct affirmative, it had the effect of materially weakening or discrediting the force of his entire testimony. We do not consider this contention well grounded. If McDonald had been testifying with reference to the behavior of some physical object or phenomena on which the literal eye was or could be focussed, appellants' contention might be well founded; but in this case he was testifying with reference to a mental impulse or purpose concealed in the subconscious mind, something that could not be visualized or felt and could only be interpreted by the words and conduct emanating from the mind where concealed. From his words and his conduct Quinn led McDonald to believe, or as he expressed it, "certainly thought so" that he (Quinn) was going to Boston to submit Phipps' offer to Mrs. Watson. Quinn was bound by his words and his conduct to McDonald. If he had a different impulse buried in his subconscious mind from that indicated by his words to McDonald, Phipps nor McDonald had no way of knowing it. In this situation it would have been humanly impossible for McDonald to have answered the question in a more positive manner. All he had was the impression transmitted from Quinn's mind to his through Quinn's words, and when he responded that he "certainly thought so," his response had all the force and effect of a direct affirmative. His conclusion to his response, "If I had not, I would not have fooled with it," together with numerous other revelations in the record, serve the purpose of raising the positiveness of McDonald's answer to the superlative degree. We think that both the allegations and proof fully meet the test as here defined, and that they establish a relation of trust and confidence between Quinn and Phipps.

Interwoven with the question of whether or not a confidential or fiduciary relation existed between Quinn and Phipps is the further question of whether or not a constructive trust in favor of Phipps should be engrafted on the sale from Mrs. Watson to Quinn.

A constructive trust is one raised by equity in respect of property which has been acquired by fraud, or where, though acquired originally without fraud, it is against equity that it should be retained by him who holds it. Constructive trusts arise purely by construction of equity independently of any actual or presumed intention of the parties to create a trust and are generally thrust on the trustee for the purpose of working out the remedy. They are said to arise from actual fraud, constructive fraud and from some equitable principal independant of the existence of any fraud. 26 R. C. L. 1232.

Discussing the circumstances that give rise to a constructive trust, Perry, on Trusts (6th ed.) par. 166, page 260, has the following pertinent comment:

"If a person obtains the legal title to property by such arts or acts or circumstances of circumvention, imposition, or fraud, or if he obtains it by virtue of a confidential relation, and influence under such circumstances that he ought not, according to the rules of equity and good conscience as administered in chancery, to hold and enjoy the beneficial interest of the property, courts of equity in order to administer complete justice between the parties, will raise a trust by construction out of such circumstances or relations; and this trust they will fasten upon the conscience of the offending party and will convert him into a trustee of the legal title, and order him to hold it or to execute the trust in such manner as to protect the rights of the defrauded party and promote the safety and interests of society. Such trusts are called constructive trusts. They differ from other trusts in that they are not within the intention or contemplation of the parties at the time the contract is made from which they are construed by the court, but they are thrust upon a party contrary to his intention and against his consent. The reason is that courts of equity have a large jurisdiction over all matters of trusts and confidence. They control and direct their administration and in certain cases they annul and put an end to them by directing the trustee to convey the trust property to the person beneficially interested."

From an examination of the text-books and many English and American cases touching this question the law seems well settled that a court of equity will raise a constructive trust and compel restoration where one through actual fraud, abuse of confidence reposed and accepted, or through other questionable means gains something for himself which in equity and good conscience he should not be permitted to hold. Miller v. Miller, 266 Ill. 522, 107 N.E. Rep. 821; Kochorimbus v. Maggos, ___ Ill. ___, 154 N.E. Rep. 235; Roche v. Roche, 286 Ill. 336, 121 N.E. Rep. 621; Rose v. Hayden, 35 Kan. 106, 10 Pac. Rep. 554.

Supporting this view the New York court in Wood v. Rabe, 96 N.Y. 414, text 425, said:

"There are two principals upon which a court of equity acts in exercising its remedial jurisdiction, which taken together, in our opinion, entitle the plaintiff to maintain this action. One is that it will not permit the statute of frauds to be used as an instrument of fraud; and the other, that when a person through the influence of a confidential relation acquires title to property, or obtains an advantage which he cannot conscientiously retain, the court, to prevent the abuse of confidence, will grant relief * * * The principle, that when one uses a confidential relation to acquire an advantage which he ought not in equity and good conscience to retain, the court will convert him into a trustee, and compel him to restore what he has unjustly acquired, or seeks unjustly to retain, has frequently been applied to transactions within the statute of frauds."

Under such circumstances as are presented here it is essential that the confidential relation be established before a constructive trust will be raised; but is not essential that such confidential relation be predicated on that of husband and wife, parent and child, guardian and ward, attorney and client, principal and agent, or partner and partner, as some of the authorities may seem to imply. The test is whether or not the relation is in fact shown to exist. The origin of the confidence is immaterial and the relation may be legal, moral, social, domestic or personal. Quinn being a real estate broker, he by that means served notice on the public generally that its confidence was invited if interested in any transaction pertaining to that business. He not only invited Phipps along with the public generally, but solicited his confidence and patronage through McDonald who brought them together. It is true that the contract between Quinn and Phipps was oral, that Phipps advanced no money, the purchase being made by Quinn in his own behalf, with his own funds, but he knew at the time that Phipps for reasons personal to himself was anxious to secure the property, that he was amply able to purchase it, that he (Quinn) was under obligation to negotiate for him (Phipps), and that Phipps was relying on him to do so. The fact that Quinn purchased with his own money and declined to take expense money when offered him by McDonald does not help his case. Phipps was known by Quinn to be a man of means, amenable to the law, who could and would respond on demand to the price offered for the lands, and more if required, to secure them.

It is contended by Quinn that the mere breach of his promise or agreement to purchase for Phipps did not establish a constructive trust in favor of Phipps. Many cases are cited in support of this phase of his defense, all of which have been analyzed carefully. Some of these cases are predicated on facts materially different from the prevailing facts in the case at bar, while the others are predicated on statutes of frauds that either prohibit proof of a constructive trust by parol evidence or embrace some other provision peculiar to the jurisdiction where enunciated. Under the statute of frauds in our statute (Sec. 3791 Rev. Gen. Stats. of Fla., 1920) a resulting or constructive trust may be proven by parol evidence. Lofton v. Starrett, 23 Fla. 565, 2 So.2d Rep. 837; Boswell v. Cunningham, 32 Fla. 277, 13 So.2d Rep. 354; Booth v. Lennoz, 45 Fla. 191, So.2d Rep. 566; Geter v. Simmons, 57 Fla. 423, 49 South: Rep. 131; Johnson v. Sherehouse, 61 Fla. 647, 54 South. Rep. 892; Rogero v. Rogero, 66 Fla. 6, 62 So.2d Rep. 899. If Phipps and Quinn had been dealing at arms length he (Quinn) might not have been bound by his agreement to purchase for Phipps, but having undertaken to act for Phipps, he becomes an agent, so our statute of frauds and decisions thereon would be a complete answer to this part of his (Quinn's) defense.

We have searched diligently and have found nothing in support of Quinn's contention on this point except the cases referred to in the first part of the last preceding paragraph which are not in point here, and some of the early English cases which were later repudiated. Bartlett v. Pickersgill, 1 Eden 515; also 4 East 577, Note. See also 2 Story's Eq. Jur., par. 1201; 2 Sugden on Vendors Purchasers (9th ed.) 163, and Browne on Frauds, par. 96; Burden v. Sheridan, 36 Iowa 125. Bartlett v. Pickersgill, the leading early English case on this point, was decided in 1760, and the doctrine announced therein appears to have continued to be the law in England till 1829, when it was repudiated in Lees v. Nuttall, 1 Russ. Myl. Ch. 53, where it was held that if an agent employed to purchase an estate becomes the purchaser for himself, he is to be considered as a trustee for his principal. Lees v. Nuttall was affirmed in 2 Myl. K. Ch. 819, where the agency was created wholly by parol. Supporting this view in Heard v. Pilley, 4 Ch. App. L. R. 548, text 552, another English case in which the agent was appointed by parol, the Lord Chancellor in part said:

"I cannot at all accede to the argument urged in reply, that under these circumstances when the agent goes to his principal and says, 'I will go and buy an estate for you,' it is not a fraudulent act on his part afterward to buy the estate for himself and to deny the agency. I think that would be an attempt to make the statute of frauds an instrument of fraud."

A casual review of the law governing this element of defense impels the conclusion that under the early English rule Quinn's agreement to purchase for Phipps would not have created a constructive trust in favor of Phipps, which conclusion is supported by some of the cases in this country predicated on statutes of frauds which prohibit proof of a constructive trust by parol, but such cases are not binding here, because by the terms of the statute of frauds in this State a constructive trust may be proven by parol. The early English rule is repudiated by all the late English cases and the modern current of authority both in this country and in England is to the effect that if an agent be employed to negotiate the purchase of land for his principal, and violates the principal's confidence by purchasing the land with his own money, and taking a deed therefor to himself, he becomes a constructive trustee for the principal's benefit, upon payment of the purchase price. Boswell v. Cunningham, 32 Fla. 277, 13 So.2d Rep. 354; Patrick v. Kirkland, 53 Fla. 768, 43 South. Rep. 969; Skinner Mfg. Co. v. Douville, 57 Fla. 180, 49 South. Rep. 125, 21 R. C. L. 829; Harrop v. Cole, 85 N.J. Eq. 32 95 Atl. Rep. 378; Young v. Hughes, 32 N.J. Eq. 372; Rose v. Hayden, 35 Kan. 106, 10 Pac. Rep. 554, 57 Am. Rep. 145 (and cases cited); Fox v. Simons, 251 Ill. 316, 96 N.E. Rep. 233; Johnson v. Hayward, 74 Neb. 157, 103 N.W. Rep. 1058. 107 N.W. Rep. 384; Trice v. Comstock, 121 Fed. Rep. 620, 57 C. C. A. 646, 61 L. R. A. 176; Rogers v. Genung, 76 N.J. Eq. 306, 74 Atl. Rep. 473; Gardner v. Ogden, 22 N.Y. 327, 78 Am. Dec. 192; Jaeger Co. v. Hannon, 90 N.J. Eq. 396, 108 Atl. Rep. 1; Brookings Land Trust Co. v. Bertness, 17 S.D. 293, 96 N.W. Rep. 97; Wood v. Rabe, 96 N.Y. 414, 48 Am. Rep. 640; Bachranch v. Fleming, 269 Pa. 350, 112 Atl. Rep. 445; Beach v. Wilton, 244 Ill. 413, 91 N.E. Rep. 492; Wright v. Smith, 23 N.J. Eq. 106; Chastain v. Smith, 30 Ga. 96. In the last named case the Georgia statute of frauds is similar to ours, and among other things the Court said:

"Where one person agrees, as agent, to buy land for another as his principal, and does buy it, but takes the title in his own name, this title in his hands stands affected with a resulting trust for the benefit of the principal by operation of law, and the case is not within the statute of frauds, resulting trusts being expressly excepted from the operation of the statute."

Some authorities hold that where the agent furnishes the purchase money with the consent of the principal, it will be construed as a loan, and the agent will hold the property purchased in trust for the principal as security to himself for the money advanced by him. Rose v. Hayden, supra. So far as we have been able to find, even those English and American cases which decline to engraft a constructive trust for the breach of a parol agreement to purchase for another hold that if the agent purchases in his own name with the money of his principal equity will raise a constructive trust in the purchase in favor of the principal. Burden v. Sheridan, 36 Iowa 125; Pinnock v. Clough, 16 Vt. 500; Nixon's Appeal, 63 Pa. St. 279.

This Court has repeatedly announced the rule that a constructive trust may be proven by parol testimony, but that the evidence to establish such a trust must be so clear, strong and unequivocal as to remove from the mind of the Chancellor every reasonable doubt as to the existence of the trust. Lofton v. Sterrett, 23 Fla. 565, 2 So.2d Rep. 837; Geter v. Simmons, 57 Fla. 423, 49 So.2d Rep. 131; Johnston v. Sherehouse, 61 Fla. 647, 54 So.2d Rep. 892; Rogero v. Rogero, 66 Fla. 6, 62 South Rep. 899; McGill v. Chappelle, 71 Fla. 479, 71 South. Rep. 836. We think the proof adduced amply met the test here. Hanson v. Hanson, 78 Neb. 584, 111 N.W. Rep. 369.

It is also contended by Quinn that he was the agent of the owner, Mrs. Watson, and could not therefore have been the agent of Phipps at the same time. On the question of agency the record shows that for some months prior to Quinn's interview with McDonald, April 8th, 1922, several communications had passed between him and Mrs. Watson relative to the sale of the property, but the matter was still open, their minds had not met and there was no authorization from Mrs. Watson to Quinn to sell till her letter of April 10, 1922, which gave Quinn an exclusive listing for 30 days. This letter had not been received by Quinn at the time he agreed to submit Phipps' offer to Mrs. Watson, consequently he was not authorized to act as her agent, but if he had been, we do not see that it would materially affect this transaction. The rule of law prohibiting dual agency while well settled is predicated on the fact that the interests of the principals are adverse or in conflict. Unless the principal contracts for less, the agent is bound to serve him with all his skill, judgment and discretion. 21 R. C. L. 827. In a letter dated April 1st, 1922, Mrs. Watson had told Quinn that she would take $75,000.00 for the property. This letter and that of April 10, as above referred to gave Quinn an exclusive contract to sell for thirty days; but such a contract if it in fact had been in existence was in nowise in conflict with the agreement on the part of Quinn to submit Phipps' offer to Mrs. Watson. Quinn led Phipps to believe that he (Quinn) would submit his (Phipps') offer to Mrs. Watson and would make the trip to Boston for that purpose. The evidence shows conclusively that if Phipps had not believed that Quinn was going to Boston to submit his (Phipps') offer, he would have arranged to purchase through business representatives there. If there were reasons known to Quinn why he could not carry out his agreement with Phipps, it was his duty to fully disclose such reasons to Phipps. He cannot invite and accept Phipps' confidence and then betray the trust reposed in him. Walker on Real Estate Agency, 578; Johnson v. Hayward, supra; Caster v. Richardson, 18 Colo. 496; 33 Pac. Rep. 163; Crowe v. McLear, 200 Ky. 621, 255 S.W. Rep. 261; Harris Bros. v. Reynolds, 17 N.D. 16, 114 N.W. Rep. 369.

In Rogers v. Genung, supra, the general rule governing principal and agent in transactions like this is stated in substance as follows: He who undertakes to act for another in any matter of trust or confidence shall not in the same matter act for himself against the interest of one relying upon his integrity. Gardner v. Ogden, 22 N.Y. 327; Davoue v. Fanning, 2 Johns. Ch. 252, text 260. So if an agent employed to purchase for another, purchases for himself, he will be considered as the trustee of his employer. The rule extends to all cases in which confidence has been reposed, and applies as strongly to those who have gratuitously or officiously undertaken the management of another's property as to those who are engaged for that purpose and paid for it. Wright v. Smith, supra.

It is contended by appellants that at the time Quinn agreed to purchase for Phipps, he had purposed in his own mind to purchase the property for himself and had made all necessary arrangements to finance the purchase. There is evidence in the record to support this contention, but this information was at no time brought home to Phipps, and it was testified positively on behalf of Phipps that if Quinn had not agreed to submit his offer to Mrs. Watson he would have undertaken the purchase through business associates in Boston.

Appellants are content to rest their case on authority of Parramore v. Hampton, 55 Fla. 672, 45 So.2d Rep. 992. That case was brought to engraft a trust on an interest in certain lands purchased by Hampton from the Tedders, Parramore having no legal or contract right in the lands so involved. Hampton was not a real estate broker, nor was he the agent of Parramore in the management or control of the property, and occupied no fiduciary relation to him in respect to it. The entire property belonged to Hampton and the Tedders and none of Parramore's money went to purchase the option from the Tedders by Hampton. Hampton did not invite the confidence of Parramore, they dealt at arm's length. Hampton may have breached his agreement with Parramore, but this Court directly held that no resulting or constructive trust could be established on the circumstances presented. In the case at bar an entirely different combination of circumstances is presented. Here we find Quinn, a real estate broker, inviting the confidence of Phipps, the lands involved were well located, were attractive and valuable, and for personal reasons were very much desired by Phipps, all of which was known to Quinn. Quinn induced Phipps to believe that he had the lands listed for sale and asked him for an offer on them. On the basis of such inducement Phipps made his offer and Quinn led him to believe that he would submit it to the owner, Mrs. Watson, and would go to Boston for that purpose, but instead of negotiating for Phipps he negotiated and purchased the lands for himself at a consideration less than was offered by Phipps. It is true that Phipps furnished no part of the purchase money, and the contract was in parol, but that can make no difference. Quinn cannot in equity and good conscience undertake the agency for Phipps, then purchase in his own name, with his own money, in violation of his agreement with Phipps and in violation of the confidence reposed in him by Phipps and be allowed to profit by the fruits of his double-dealing. Rose v. Hayden, supra; Brookings Land Trust Co. v. Bertness, supra.

The real estate business is not an avenue by which one may practice the tricks of his trade or prey on the innocent and unsuspecting purchaser, nor is it a cloak to cover fraud and deception, or a means for designing persons to short-circuit those who would deal squarely and in good faith. It is indeed a highly respectable business or profession; its ethics are well defined and presumed to be known to those who patronize or engage in that business. No business known to modern society has a longer or more respectable history. Real estate is a primary security for credit in all the civilized countries of the earth, and the real estate broker in our time, and long has been, the medium through which annually many millions of dollars in earnings and savings are secured or invested. He is the agent of his principal in every sense and when that relation is undertaken a fiduciary relation is created which bars the agent from becoming interested in the business or property antagonistic to his principal without his knowledge or consent. Every man, in other words, to whom a business is entrusted by another has a trust to perform; and every man is a trustee whose business is to advise concerning or to operate the business of another.

This holding is not only well grounded on authority, it is abundantly supported in morals and reason, and when viewed in the light of the history of our legal development it is as inevitable as the fact of night following day, or the seasons recurring in their order. "The law of every country is the outcome and result of the economic and social conditions of that country as well as the expression of its intellectual capacity for dealing with these conditions, the causes which modify the law are usually to be sought in changes which have passed upon economic and social phenomena. When new relations between men arise, or the old relations begin to pass into new forms, law is called in to adjust them." Legal doctrines are predicated on reason and custom, mark their growth from rude beginnings, and like the order of the universe are constantly changing to adjust the new relations of society. We have no better proof of this than the development of our common law and system of equity. The spirit of the Common Law, Pound.

Our "Anglo-American legal tradition" which we term the common law is primarily an English institution. It is not a fixed body of well defined rules embodied in the written records of this or the mother country, but is rather a method of juristic thought or manner of treating legal questions worked out from time to time by the wisdom of mankind. It is a doctrine of reason applied to experience. Its rules were promulgated in feudal times, an age of dense ignorance, crude customs and primitive society, when slight value was attached to life, liberty or property, when commerce was almost unknown and property was of little value. In the time of Henry II the King's courts became organized and from these local rules or customs began to evolve the common law. By the genius of Coke these rules or customs were remolded into vital pulsating principles and were passed on to the English Colonies in this country where they have by reason and interpretation attained their most complete logical development. We are therefore more essentially a common law country than England herself.

Likewise our system of equity was built up from time to time by the chancellors, the first of whom were members of the clergy, were often versed in the canon law, but knew little or nothing of civil or common law. In the times of Edward I and Edward III the jurisdiction of the chancellor was more specifically defined, and he was made an instrument for amending and extending the law. Originally equity infused morals into the law by prohibiting the unconscionable exercise of legal rights. In our day we are preventing the anti-social exercise of legal rights. We are also imposing social restrictions limiting the freedom of contract, and limiting the power to dispose of property, all in the interest of society. These fundamental changes in our law, sometimes the product of legislation, but more often the work of the courts, are prompted by the conduct of those who in some manner place themselves in opposition to the approved social order. Equity and the chancellor were designed to scrutinize the conduct and search the consciences of those responsible for calling the law into action and protect those who pledge and promise in good faith, against those who would overreach or in other ways act illegally or anti-socially.

It is next contended that no valid decree could be entered in this cause because necessary parties were not joined in the suit. It is asserted in other words that the "Phipps interests" represented by the heirs of Henry Phipps, deceased, are the real parties interested, while the suit is brought in the name of John S. Phipps individually.

This court is mindful of the rule to the effect that all persons materially interested, either legally or beneficially in the subject-matter of a suit should be made parties to it, either as plaintiffs or defendants, however numerous they may be, so there may be a complete decree binding on all of them. The reason for the rule is that the court may be enabled to make a complete decree between the parties to prevent future litigation by removing the necessity of a multiplicity of suits and to make it certain that no injustice is done to the parties before it, or to others who are interested in the subject-matter, if a decree were entered which might be otherwise grounded upon a partial view of the real merits. When all the parties are before the court the whole case may be reviewed, but it may not when all the conflicting interests are not presented on the pleadings of the original parties thereto. Gregory v. Stetson, 133 U.S. 579, 10 Sup. Ct. Rep. 422; Story's Eq. Pl. 72.

There is some evidence tending to show John S. Phipps' connection with the "Phipps interest," but the decided weight of the evidence is to the effect that John S. Phipps wanted the property for personal reasons; that he was anxious to get it; that the offer of fifty thousand dollars was made for it in his behalf; that he was amply able to pay that price, and that all the negotiations were carried on with the end in view of purchasing for himself and not for the Phipps interests. It is not therefore made to appear that all the necessary parties were not before the court.

It is further contended that even if Phipps' tender was good, no part of it should have been returned to him.

Some time after suit was filed Phipps paid $50,000.00 into the Court as tender to make good on his cash offer for the property. The Chancellor decreed that of the $50,000.00 so tendered, $35,000.00 be paid to Mrs. Watson to meet the principal on the mortgage held by her; that $1,820.00 be paid to Gregory in lieu of interest paid on the mortgage to Mrs. Watson from the date of its execution, May 12, 1922, to date of tender; that $10,000.00 be paid to Gregory to replace the amounts paid by him to Quinn to make the cash payment to Mrs. Watson, and that the balance of $3,180.00 be paid or returned to Phipps.

Appellants' contention is predicated on the assumption that when money is paid into Court the party paying it loses any right to it and the Court has no authority to make an order in the same case transferring the title to or permitting the one paying it to withdraw the money. We find no warrant for such a contention. The rule is well settled that where one pays an amount tendered into Court as a condition precedent to affirmative relief, such payment does not transfer the title in the money to the other party, but it remains in the one making the tender, subject to the final outcome of the suit. 26 R. C. L. 658.

It is contended on behalf of the intervenor, Gregory, that his equity is superior to that of Phipps because he (Gregory) holds title to a one-half interest in the lands involved as a bona fide purchaser for value and without notice.

The record does not support this contention. Phipps' bill and notice of lis pendens were filed April 29th, 1922. Phipps knew nothing whatever of Gregory's claim till after this date. There was an agreement between Quinn and Gregory (which was never recorded) to purchase on the part of Gregory a one-half interest in the property. It was dated April 27, 1922, and shows a cash payment on the part of Gregory to Quinn of $500.00. It showed further that Gregory was to furnish the funds to make the property salable, and was to pay an additional payment of $9,500.00, making a full payment of $10,000.00 when deed was "properly executed and the abstract of title shows that the property is free of all encumbrance." May 8, 1922, Gregory left two checks with the Farmers Bank Trust Company aggregating $14,500.00, to be turned over to Quinn when the deed "was all right." He left West Palm Beach the following day and remained away all summer. He had no correspondence with his agent Quinn while he was gone, but left the whole transaction in his hands. Mrs. Watson executed her deed to Quinn May 4, 1922, and same was recorded May 12, 1922. Quinn in turn on the last named date executed his mortgage to Mrs. Watson to secure deferred payments payable within three years from date. This mortgage was recorded May 13, 1922, and on August 2, 1922, Quinn joined by his wife conveyed a one-half interest in the property to Gregory.

The position of Gregory may be unfortunate, but he left the whole matter with Quinn, and though he was an experienced real estate man, he made no effort whatever to exercise his reserved right to demand and examine the abstract of title to the property before his money was paid to Quinn. Such an examination on May 8th, 1922, when his checks were turned over to Quinn would have shown the existence of this suit, which Quinn was aware of at the time of all the foregoing transactions. It therefore appears that Phipps had no knowledge whatever of Gregory's claim, that Gregory had ample means to protect himself, but relied on his agent Quinn, who deceived him; that the final decree leaves him in the position he was in before his transaction with Quinn, so he is not in position to complain. In other words, the acts of Quinn, the agent, became the acts of Gregory, the principal, and he is bound thereby.

The eleventh to twenty-third assignments of error exclusive of the fourteenth assignment are predicated on the admission of certain oral and documentary testimony. These assignments have all been examined carefully, and on the whole record error is not made to appear.

For the reasons announced in this opinion the decree of the Chancellor was properly entered, and is hereby affirmed.

WHITFIELD, P. J., AND BUFORD, J., concur.

ELLIS, C. J., AND STRUM AND BROWN, J. J., concur in the opinion.