delivered the opinion of the Court:
Three grounds are urged for reversing the decree of the Appellate Court: First, if the subject matter of litigation is such that any relief should be granted, the remedy is at law, and not in equity; second, but the subject matter of litigation is not such as the court can act upon to grant any relief; and third, in any view, the hoard of trade is an indispensable party. These will be briefly considered, in the order stated.
First—The agreement set out in the bill, admitted in the answer, and read in evidence on the hearing, whereby the defendant agreed to act as clerk of the complainant and manager of the office part of her business, (except the running of the mill,) to purchase grain, ship the ground product, make sale thereof, and do the banking and financial business, all in his own name, (but in fact all ownership therein being in the complainant, and he having no interest therein,) account therefor to the complainant at the intervals provided in said contract, and, upon a discontinuance of the employment, to turn over and surrender to the complainant all the money and property, of every kind and nature, in his possession or under his control, belonging to the complainant, creates a trust in the money and property of the complainant of which the defendant became thus possessed. As to the duties imposed upon the defendant by the contract, it seems to be conceded the relation of principal and agent is created. But this is a fiduciary relation, and if the agent appropriate the property of his principal to his own use, or make any profit to himself by virtue of his position, he must account therefor as for a trust. (Perry on Trusts, (2d ed.) sec. 206; Smith v. Wright et al. 49 Ill. 403; Clapp, Admr. v. Emery, 98 id. 523; Davis v. Hamlin, 108 id. 39.) There being a trust, nothing is better settled than that a court of equity has jurisdiction to enforce an account and surrender of the trust property, the time when the trustee should do so having arrived, and he having refused.
Second—It is a misapprehension to suppose, as counsel for plaintiff in error seem to, that we held in Barclay v. Smith, 107 Ill. 349, that there are no property rights of any kind in a certificate of membership in the board of trade of the city of Chicago. We simply there held' that such a certificate is not property which is liable to be subjected to the payment of the debts of the holder by legal proceedings. We did not intimate that from the nature of a certificate of membership in the board of trade, it could not, by statute, be subjected to the payment of debts, but only that, under the law as it now is, it can not be. Whether property shall be liable to be subjected to the payment of debts by legal proceedings, and if so, in what manner, is purely a matter of statutory regulation. At common law, shares in stocks were held not to be chattels. (Angell & Ames on Corporations, (5th ed.) sec. 560; Hermann on Executions, sec. 362.) And, also, to be of such an intangible nature that there could be no change of possession, and therefore that they could not be sold on execution. (Angell & Ames on Corporations, (5th ed.) sec. 560.) And it is held the interest of the inventor in a patented invention, and of the author in the copyright of a book, can not be sold on execution. (Freeman on Executions, sec. 110.) And itfis said the weight of authority is in support of the view that equity has no power, in ordinary cases, to compel the appropriation of choses in action to the payment of their owner’s debts. (Freeman on Executions, sec. 425.) By statute, shares in stocks may be now sold on execution, and, doubtless, the inventor’s interest in his patent, and the author’s interest in his copyright, might, by statute, be made subject to sale on execution. There is, however, a large class of legal rights in which there is a property interest, that, by reason of their personal and peculiar character, manifestly could not be made the subject of transfer by judicial sale,— such, for instance, as an interest in real estate conditioned to become void on alienation or transfer to another; contracts for personal services requiring the individual care and skill of the one party in and about some matter affecting the person or personal tastes of the other party. But in'all these cases it is too obvious to require the citation of authorities, a court of equity would interfere to protect against deprivation of enjoyment; and it is impossible to conceive any reason why a court of equity will not, upon like principle, interfere here to protect the complainant’s interest in this certificate of membership in the board of trade.
This defendant has not a shadow of authority for retaining this certificate. It was bought with the money of the complainant, and placed in his name solely for the purpose of enabling him to conduct that part of her business which he had undertaken to conduct for her. If he be allowed to retain it, since it has a market value of $3400 to $4000, he can realize upon it to that amount, and she will be driven to the payment of that amount to obtain another certificate, in order that her business may be conveniently carried on, and to place her in the condition in which she now is if, she only be allowed to retain her own. In Davis v. Hamlin, supra, at page 49, we quoted from the American notes to Keech v. Sanford, 1 Leading Cases in Equity, 53, the rule applicable here, as follows : “Wherever one person is placed in such relation to another, by the act and consent of that other, or the act of a third person or of the law, that he becomes interested for him, or interested with .him, in any subject of property or business, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interest he has become associated.” The rule is general, and of familiar application in this court, that where a person occupying a fiduciary relation purchases, property with the trust funds, and takes title in his own name, a trust in the property will result to the cestui que trust,—and this, on principle, must be true whether the property right is absolute or only qualified and contingent. The right, whether large or small, is entitled to protection, if its deprivation may affect adversely the cestui que trust. It can not be said, here, that we must, from the nature of this corporation, hold there can be no pecuniary value in a certificate of membership, because the proof shows the contrary with absolute certainty. It has a regular pecuniary market value, notwithstanding the conditions to which the transfer of its title is subject. .
Third—It is sufficient to say as to the last point, no relief is sought against the board of trade. The contest is purely between plaintiff in error and defendant in error, and in nowise concerns the board of trade. It will be time enough to make it a party when a decree is sought against it. Whether the party to whom the defendant in error desires the certificate assigned will be acceptable to and received by the board, can not, in any possible way, concern plaintiff in error.
The judgment is affirmed.
Judgment affirmed.