Page:Federal Reporter, 1st Series, Volume 4.djvu/712

698 FEDERAL REPORTER. �amongst themselves to purchase property for their Joint account, and the purchase is accordingly made by one or more of them on behalf of ail, the liability of each to pay bis Bhare of the purchase money, and bis right to an interest in the property, cannot be controverted. So, also, if two or more persons enter into a contract with another to purchase property, ail matters being fully arranged in the agreement, the equal right of ail vendees to proeeed in the execution of the contract may be conceded. To illustrate that proposi- tion, if the Handley party had agreed with Bissell, Foss, and Hunter to sell to them their interest in the mines, no one of the vendees could bave taken the title to himself under that contract until default by the party excluded in some matter to which he was bound by the terms of the agreement. Again, if one take unto himself a title which he bas purchased with the money of another, he shall be a trustee for the true owner, who may rightfully follow his fund, however it may be miscarried. But the record pre- sents no one or more of these facts. There was, indeed, an agreement between Foss and Bissell to purchase the Hand- ley interest, if that may be called an agreement which lacks the essential features of a priee for the property and money to pay for it. But Handley, Eobertson, and Eawlings were not parties to that agreement, and therefore it was not in itself an agreement to purchase, but to negotiate with them for the property. In that form ii presents no feature which can aiîect ihe title to the property. At most it was an agreement between intending purchasers, which could give no right to either until it should be consummated in the pur- chase of the property. Jî we regard Foss and Bissell as agreeing to an agency in respect to the purchase of the prop- erty, the case is not different; for if one, who is clearly an agent of another to purchase property, repudiate the agency and act for himself, using his own funds, he cannot be de- clared a trustee for his principal. Burclen v. Sheridan, 30 lowa, 125. A different ' rule appears to be laid down in Story's Eq. Jur. § 1211a, but its limitation will be found iu another section of the same volume — section 1201a. ����