Shearin v. . Hunter, Adm'r. , 72 N.C. 493 ( 1875 )

The defendant as administrator de bonis non on the estate of John P. Shearin, after petition and decree to sell the lands of his intestate for the payment of debts, exposed the same to sale on the 6th of April, 1874, when Mr. Foote bid off the same, (819 acres), at the price of fourteen hundred and ten dollars. It is admitted that Foote bid off the land at the request of the administrator and for his benefit.

The sixth paragraph of the defendants answer is as follows:

"The defendant further says that he reported the said H. A. Foote, as the purchaser, whom the defendant had enabled to comply with the terms of the sale in order to avoid complication in making the title; but it was agreed that the defendant should take a title from the said H. A. Foote as soon as it should be made to the latter, and relieve him from all responsibility in relation thereto. This last agreement was made subsequent to the sale in pursuance of the understanding previously mentioned."

It appears from the record that the report of the administrator was confirmed on the 2d day of May, 1874, and twenty days thereafter the plaintiffs filed their petition setting forth the facts, that one of them is an infant, and that they did not know that the administrator was purchasing for his own benefit, that the land is near the railroad, and is worth more than it sold for.

Without looking outside of the administrator's report, it was the plain duty of the Probate Judge to refuse to confirm the same, and indeed he should have then considered the question whether the administrator had shown himself a proper person to be entrusted with the sale of that land.

And when complaint was made the fact that he did not agree, at once, that the sale should be set aside, but endeavored to hold on to his bargain, demonstrates that he is an unfit person to exercise the office of administrator; and that he should be removed.

"The most obvious instances of the abuse of a fiduciary character is, where a trustee for sale or purchase, attempts to buy from or sell to himself. The permitting such a transaction to stand, however honest it may be in the particular case, would destroy all security for the conduct of the trustee; for if he were permitted to buy or sell in an honest case, he might do so in one having that appearance, but which from the infirmity of human testimony, might be grossly otherwise." Adams Eq. page 60.

The objection to the proceedings in this case is untenable.

It is unnecessary to elaborate this point, since the case of Hyman v.Jernigan, 65 N.C. 96, is directly in point, and decides the question presented, adversely to the views of the defendant.

Judgment reversed, and case remanded, to be proceeded in according to law.

PER CURIAM. Judgment reversed, and case remanded.