Munro v. Allaire , 2 Cai. Cas. 183 ( 1805 )

Bensou, J.

This is an appeal from the orders of the court of chancery, overruling the several demurrers of the appellants’ to the respondent’s bill.

The intent of the respondent’s bill in the court of chancery is, that he may have a specific performance of his agreementwiththe appellant Mary Palmer, whereby she bound herself to convey to him, by good, and sufficient conveyances in the law, all her estate, right, title and interest whatever, to the estate of her late husband, and that he may receive a more perfect assurance and conveyance of the said estate.

To that end, the other appellants are also brought into court, either as confederates with her, or as subsequent purchasers from her with notice. Several •questions have been raised and argued by the counsel on both sides. An opinion by the court on each of these questions, would be unnecessary. It is, therefore, to be forborne, it being sufficient for a decision against the respondent, that he had at any time, as a trustee, a' power over the property so agreed to be conveyed^ and whether this property existed in the shape, either of money or of land, makes no difference. The demurrers by the appellants, therefore, were well taken, it being a principle, that a trustee can never he a purchaser ; and, I assume, it as not requiring proof, that this principle must be admitted, not only as established by adjudication, but also as founded in indispensable necessity, to prevent that great inlet of fraud, and those dangerous consequences which would ensue, if trustees might themselves become purchasers, or if they were not, in every respect, kept within compass. Although it may, however, seem hard, that the trustee should be the only person of all mankind who may not purchase; yet, for the very obvious consequences, it is proper the rule should be strictly pursued, and not in the least relaxed, ' Therefore, far from discerning the respondent’s case as an exception, supposing the rule to be only general and not universal, I would remark, that, notwithstanding the averment in the bill, that Mary Palmer fully understood the agreement and conveyance, and, independent of the circumstance that she was not able to read or write, whoever will merely look at the conveyance, which is set forth at large in the bill, will instantly perceive that the parties, or other persons who are named in the bill, as friends or agents in the transaction, did not know what she had by the agreement', agreed to convey; whether an estate in the land, or her eventual interest in the money to arise by the sale of the land ; or in what manner, or to what extent these acts were susceptible of effect, or even whether they were not altogether nugatory. The conduct of the parties, and every other person having any other agency in a bargain so made, without due knowledge or advertisement, is, to say the least of it, indiscreet, irregular, unfit, and certainly to be discountenanced. I am, therefore, satisfied of the justness of this principle, that a court of equity ought never to aid a party to have the bargain enforced or perfected, with intent that any profit or advantage should be taken by it; the interposition of the court, if any, should be only to avoid or relieve -against a loss or damage.

The principle, as quoted from the adjudications, is in terms without qualification or exception. A trustee can never be a purchaser, &c. and without Some explanation, I may, possibly, be considered as understanding it in its apparently absolute sense. I will, therefore, briefly mention, that the cases, where the suit is against the trustee to set aside a purchase, he having procured the requisite formal legal title, are to be distinguished from those where the suit is by him to effectuate a purchase, either by having the thing purchased, decreed to him specifically, or by having the means decreed to him, whereby he may recover at law. That in the latter case, it appears to me, that the rule is to apply as unlimitedly as it is expressed ; but that in the former case, a court of equity will not always interfere, as of course ; for, if the cestui que trusts will agree to allow the purchase, it may be allowed without fear from the precedent ; and that it is not, in every instance, indispensable that all the cestui que trusts should agree to waive the implied fraud ; it may be sufficient for a majority, or such other number or proportion of them to agree, as that, according to the circumstances of the case, it may be presumed there was no fraud in fact. It only remains to be noticed, that if the agreement and conveyance are to be without effect, Mary Palmer ought not to retain the bond and mortgage against the respondent. She is, nevertheless, entitled to hold them, until he shall make her an offer to relinquish the agreement, and to deliver up the conveyance he now holds against her to be cancelled. It is not possible for the respondent to allege an offer to that purpose, and to conform the prayer of his bill and his petition to it, in consequence of any answer which the appellants could be compelled to make to the bill, and it is a rule, that every decree must be according to the form of the petition ; so that, if the respondent is to be relieved against the bond and mortgage, he must proceed de novo, and as he shall be advised.

My opinion, is, that the order appealed from be reversed.

Decree. Whereupon,^* the court thereupon do order, adjudge and decree, that the orders therein complained of be reversed, and that the demurrers of the appellants to the respondent's bill stand allowed. That the respondent pay to the appellants their costs in respefct to the said appeal; that the respondent’s bill, as to the appellants, Isaac Sniffin and Mary Palmer, the younger, be dismissed with costs; thatthe respondent pay to the appellants, Peter Jay Munro and Benjamin Griffen, their costs in respect of their demurrers*, and that the court of chancery give all necessary directions for carrying this judgment into exetion.

And it is further ordered, that in respect of such matter in the respondent’s bill, to which the appellants, Peter Jay Munro and Benjamin Griffen, have answered, the cause be remitted to the court of chancery, there to be proceeded in, as between the respondent and the said Peter Jay Munro and Benja-Griffcn, as shall be just.

Judgment of reversal.

* 20th March, 1796.