Bell v. Webb , 2 Gill 163 ( 1844 )

Archer, J.,

delivered the opinion of this court.

Daniel Berger, beinglargely indebted on judgments obtained against him in Washington county court, executed to the complainant, on the 1st of February 1820, a mortgage on his lands to secure the payment of $701.30; and on the 29th of February, executed a deed of mortgage to William Webb and Peter Mong, for his said lands and personal property. In this deed, it is recited, that Berger was in debt to sundry persons in the sum of $6000; and that Webb and Mong were his securities, and that the deed is executed to secure them the payment thereof ; and subsequently, on 27th July 1820, he executed a deed of trust for the said lands and personal property in trust, to sell the same as speedily as it could be done, without a sacrifice, for the purpose of paying off, first, all the liens and incumbrances according to their priority. Secondly, for paying off all judgments, and debts, and liabilities, obtained against, or undertaken by the grantees, on account, and for the said Berger, &c.

The answer states, that the personal property, which was under execution, sold on 2nd November 1820, for near $600, and was applied to payment of the executions which covered it. That the trustees offered the lands for sale, and could get no bid for them, owing to the depressed prices of land at that time. That the judgment creditors became impatient, issued executions, and the land was offered at sherifPs sale on 3rd day of July 1821, and was subsequently sold by the sheriff under vendíes, on the 21st of October 1821, to Marmaduke W. Boyd for $1010. That this sum was insufficient to pay the liens and judgments, prior to the complainants mortgage; that Boyd purchased the land, at the request of Webb and Mong, to aid them in getting out of the difficulties in which they were involved, by being connected with the concerns of Berger. That after said purchase, they eonveyed to Boyd all the interest they had in the land, to enable Boyd to sell the lands, that the proceeds might be applied to their relief; but Boyd being unable to sell, Mong agreed to purchase the land from Boyd, and paid him $1500 for the same, which sum covered all expenditures by Boyd, in the purchase, &c., of the land.

By the evidence, it is established, that Mong and Webb had offered the lands at private sale repeatedly; that lands were depressed in price very much at that time, and that within a year after the deed to them fi. fas. on those judgments wrnre issued, and upon vendíes, they were sold.

As the trustees were not obliged to sell at a sacrifice, by the terms of the trust, the depressed price of lauds furnished a sufficient justification to them for forbearing the sale, for the time they did forbear.

There appears to , be no evidence satisfactory to us, that there existed any combination between the trustees and the judgment creditors, to bring these lands to a sale.

We are, therefore, bound to consider, that no imputation can lie against the trustees on account of the executions.

It cannot however, we think, be doubted, that at the sheriff’s sale, Boyd in the purchase, was the mere agent for Mong. This is evident, we think, as well from the facts disclosed in the answer, as from the testimony of Mong himself: and one of the questions which arises in the case, is, whether a trustee can be permitted to purchase the cestui que trusts property, levied upon and sold at a sheriff’s sale, without any instrumentality of his. As decisive of this question, we refer to 7 G. S? J. 1. The trustee thus purchasing, will be entitled to re-imbursement for his expenditures in the purchase, but he cannot deprive the cestui que trust of the benefit arising from the purchase, if there be such benefit. 3 Des. 25.

But, it is supposed, that whatever may be the general rule on this subject, that in the case before us, there was a trust coupled, with an interest, which authorized the purchase for his own benefit. The trustee had an interest in the satisfaction of his own claims, it is true, but equity would seem to demand, that all his acts, in relation to the trust property, should enure in equal proportions to the benefit of others, according to the extent of their claims, as well as to himself. This point seems to have been involved in 7 Gill John. 2.

Another question is, whether the sale ought not to be considered, as ratified by long acquiescence; after a knowledge of the facts, which will impeach a sale, a party would be bound, in a reasonable time, to proceed, and if he do not, he will be presumed to have acquiesced. Here a period of eighteen years has elapsed, from the sale to the filing of the bill; but as far as the records presented the case, it would appear to have been an ordinary sale to Boyd, by the sheriff, and it seems only to have been discovered at the filing of the answer, that Boyd had purchased for the trustee; so that the complainant proceeded upon this new state of the case to vacate the purchase immediately thereafter. It is true, the complainant attended the sale, and was requested to bid, but declined, and did not express dissatisfaction therewith. But it does not appear, that he then, or at any subsequent time, until the institution of these proceedings, had any notice or knowledge that Boyd was purchasing for the trustee. We therefore think, there is no ground to impute any acquiescence to the complainant.

In view, therefore, of all the circumstances of the case, we are of opinion, that the sale thus made, is voidable, at the election of the complainant; and that the land described in the proceedings, and yet remaining, at the institution of this suit, in the possession of the defendant Mong, should be sold; and that the purchase money, after allowing to the defendant all the monies by him paid and applied, to the purposes of the trust, and also for all necessary and proper expenditures upon the land, and permanent improvements thereon, over and above the profits of said lands, shall be applied to the purposes of the deed of trust, made by Berger, on the 27th July 1820; and that the cause should be remanded, to the county court, that the principles of this decree may he carried into effect by further proceedings therein.

DECREE REVERSED,