1844.

YOUNG

V.

WHITE.

Eeles' mortgage had never been paid off or reconveyed.

On the 10th of April 1841, Rumsey sent the deed to White, and a few days after he absconded, and was subsequently made bankrupt. No notice had been taken of Eeles' mortgage, which still remained wholly unpaid.

Young filed this bill against White, praying payment of 6201., the alleged balance of the purchase money, and offering to satisfy Eeles' mortgage.

On the other hand, White filed a cross bill, insisting that the 400l., 150l., and 35l. had been advanced to Rumsey for and as the agent of Young, and that the whole purchase money had been paid, and praying an effective conveyance of the property, free from the incumbrances of Eeles and Rumsey.

Mr. Tinney, and Mr. R. Palmer, for the Plaintiff Young, contended, that of the purchase money, 300%. alone had been paid by the Defendant, and that the sums of 400l. and 150l. advanced before the contract, constituted a private debt of Rumsey, which he could not concur in setting off against the sum due to his principal; Wyatt v. Lord Hertford. (a) That even if these sums constituted a debt of Young, they could not be set off against his lien for the purchase money; Pinnock v. Harrison. (b)

That if the money had not been actually paid, the receipt was ineffectual; Coppin v. Coppin (c); and no money had been advanced on the faith of the conveyance and receipt.

(a) 3 East, 147.

(c) 2 P. Wms, 294,

(b) 3 Mee. & W. 552.

Mr.

Mr. Kindersley, and Mr. Parry, for the Defendant White, contended, that Rumsey had all along acted as the general agent of Young, and that all the sums had been advanced to Rumsey on account of Young, either as his authorized agent, or on account of the purchase. That, by the execution of the conveyance, and by signing the receipt, Young had recognized all that had been done by his agent, and the mode in which the accounts had been settled.

The MASTER of the ROLLS reserved his judgment.

1844.

YOUNG

v.

WHITE.

The MASTER of the ROLLS.

I have read the papers in this case, and the outline of it seems to be as follows:

Mr. Young employed Rumsey, who had been his attorney and agent in many other matters, as his agent, to sell the Radnage estate, and to receive the purchase money.

Rumsey agreed to sell the estate to Mr. White for 9207., to be paid on the completion of the purchase.

The estate was subject to incumbrances, and at the date of the agreement, Rumsey was indebted to Mr. White in the sum of 550l.

In the agreement, no notice was taken of the incumbrances, or of the debt which was due from Rumsey to White; but it was provided, that the estate was to be conveyed to Mr. White, free from incumbrances, for the sum of 9201., to be paid at a future time.

July 15.

1844.

YOUNG

บ.

WHITE.

Rumsey, however, requested Mr. White to advance 300%., part of the purchase money, immediately, for the use of Mr. Young; and the request being complied with, Rumsey signed a receipt for the same, as part of the consideration money; and in the receipt no notice was taken of the debt which was owing from Rumsey to Mr. White.

I am of opinion that, as the matter stood immediately after the receipt was signed, it cannot be considered that more than 300l. had then been paid on account of the purchase money.

Almost immediately afterwards, Rumsey requested Mr. White to advance a further sum of 35l. for the use of Mr. Young. The evidence shews a great probability that this sum of 351. was paid; and although the proof is not conclusive, yet, as Mr. Young has declined to take an inquiry on the subject, I must consider that the sum of 351. was in fact paid, and I think that it ought to be attributed to the purchase. The question is, what, if any, further sum of money was paid by Mr. White to Rumsey pursuant to the contract.

After the contract had been signed, Rumsey, who was then acting as solicitor for Mr. White as well as for Mr. Young, prepared the conveyance, (under the circumstances, a very improper one), and on the 26th of March 1841, he told Mr. Young that the purchase money was paid.

In the absence of all evidence to the contrary, I think that Mr. Young must have understood Rumsey to say, that the purchase money was paid pursuant to the

contract.

On

On the same day, (March 26th), Rumsey settled an account with Mr. White in relation to the purchase. The account is stated in the name of Rumsey, and not in the name of Mr. Young; but it appears to be the only account which Mr. White had in relation to his purchase from Mr. Young; and in this account, Rumsey gave credit to Mr. White for sums amounting to 550l., the debt then due from Rumsey himself, and some interest thereon; and upon this account, with such credit, he made it appear that no more than 3l. 14s. 6d. remained due to Mr. Young on account of the purchase money; and Mr. White paid this sum of 3l. 14s. 6d. to Rumsey for Mr. Young.

Mr. White seems to have placed so much confidence in Rumsey, as to believe that Rumsey had borrowed the sums amounting to 550l. for the use of Mr. Young, that the estate was free from incumbrances, and that Mr. Young had authorized Rumsey to set off the debt against so much of the purchase money.

On the same day on which Rumsey settled this account with Mr. White, he sent to Mr. Young a statement of account, falsely representing, in effect, that he had received the whole of the purchase money, and that after applying a part of it in discharge of Eeles' mortgage, and another part in paying his own bill of costs, a balance of 1237. remained in his hands, to be applied for the benefit of Mr. Young.

Mr. Young placed so much confidence in Rumsey, as to believe this statement to be true; and he thereupon, at the request of Mr. Rumsey, executed the conveyance which Rumsey had prepared, and signed a receipt for the whole of the purchase money.

1844.

YOUNG

v.

WHITE.

1844.

YOUNG

v.

WHITE.

The conveyance and receipt were sent to Rumsey by his clerk, and delivered to Mr. White on the 10th of April 1841.

No money was paid or advanced on the credit of the conveyance and receipt; and no more than 3351., and the balance of 3l. 14s. 6d., can be considered as paid on account of the purchase money pursuant to the contract. The question therefore seems to be reduced to this:

Whether a purchaser, being a creditor of the agent of the vendor of an estate, and dealing with the agent in the absence of his principal, and without any special authority of the principal for the purpose, is entitled, as against the principal, by agreement with the agent alone, to place his debt, really due from the same agent, to the debit of the principal, on account of the purchase money?

I am of opinion that the purchaser is not so entitled; and consequently that Mr. White is still indebted to Mr. Young for so much of the purchase money as remains, after deducting the three sums of 300l., 351., and 31. 14s. 6d.

On the other hand, Mr. Young is bound to perform his part of the contract, and, at his own charge, to procure for Mr. White an assignment or surrender of the term vested in Mr. Eeles, and a re-conveyance of the estate which was vested in Rumsey.

I think that the costs of the suit must follow the event, and I greatly regret the additional burden thus thrown on Mr. White.