This is an appeal from an order sustaining a general demurrer to an amended bill of complaint.
In so far as the bill seeks only to recover moneys alleged to be due from defendant to complainant as the consideration for the assignment by complainant to defendant of an option held by complainant to purchase certain lands from a third person, the bill is without equity.
The bill also seeks, however, to impress a constructive trust upon the lands in favor of complainant. To that end it is in effect alleged, amongst other things, that the defendant is a man thoroughly experienced in real estate transactions while the complainant is alleged to be inexperienced in that respect; that defendant knowing that complainant held an option to purchase the lands in question, and of complainant's lack of experience, first sought to purchase the option from complainant but complainant declined to sell the same; that defendant then sought and received complainant's authority to act a agent of the latter in procuring a conveyance of the land from the optionor for the use and benefit of complainant and to thereafter buy complainant's interest in the land at a stated price satisfactory to complainant, the complainant executing, under circumstances tending to divert inquiry, what was represented to him by defendant to be and what complainant thought to be a written power of attorney constituting defendant the agent of complainant for the purpose of procuring the conveyance, but which later proved to be an assignment to defendant of the option; that defendant represented that if complainant did not act through him in procuring a conveyance, he (complainant) would have *Page 368 great difficulty in procuring a conveyance from the optionor and through litigation which would surely follow that complainant might lose his rights under the option and might not be able to procure a conveyance at all; and that contrary to and in violation of the trust and confidence thus sought by defendant and reposed in him by complainant, the defendant thereafter, while representing to complainant that he was acting for him as his agent, procured a conveyance of the lands to himself and declined to recognize complainant's rights in the land. In the latter aspect, the bill is good as against general demurrer. See Quinn v. Phipps, 113 So. R. 419; 54 A. L. R. 1173.
Reversed and remanded.
WHITFIELD, TERRELL, BROWN AND BUFORD, J. J., concur.
ELLIS, C. J., dissents.