text:
    THE BANK OF THE STATE OF ALABAMA VS JAMES M’DADE. THE SAME VS CHARLES S. LUCAS. THE SAME VS THOMAS J. FAISON.

      As to objection to the competency of a witness.

      As to a purchase by a surety of trust property, convey-> ed for his benefit.

      As to possession of property Toy a vendor.

      As to instructions of an inferior Court upon matters not set out in the record.

      As to a cestui que trust — how far competent as a witness.

      As to proof of one's declarations.

      1. It is not sufficient merely to object to the competency of a witness, introduced on a trial in order to render his admission available in error — exception in such case should be taken to the opinion of the Court overruling the objection.
    2. Where a surety, after the execution of a deed of trust, ex-, ecuted for his benefit while surety, — discharges the liability he has secured, to an amount equal to a price given for the trust property, on a sale, made to him under the trust deed, — * such discharge of the security, is adequate consideration for the purchase.
    3. That property remains with a vendor for a period (not un - reasonable,) after a sale — does not, per se, avoid the sale — the possession appearing bona fide.

      A. This Court can not consider instructions made by an inferior Court, in relation to a deed, which is not set out in the record, nor its provisions stated.
    One, who is a party provided for in a deed of trust, is not a .competent witness, to sustain the deed, and a sale made under it, by the trustee.
    6. The declarations of one, who is a competent witness,.can not be deposed to, by another witness.
    In error to the Circuit Court of Montgomery.
    In these cases, writs of fieri facias, were issued from the County Court of Tuskaloosa county, to the sheriff of Montgomery county, commanding the levy of a debt, recovered by the Bank of the State of Alabama, against William D. Bynum and Alexam der McDade. These executions were accordingly levied upon certain property, consisting mostly of slaves, and which was claimed by Charles S. Lucas, Thomas J. Faison, James McDade, and William McDade. Upon these claims, issues were made up in the Circuit Court of Montgomery, which were all determined in favor of the claimants.
    Upon the trial of the case against McDade, a deed of .trust was produced, shewing a conveyance of the slaves levied upon, to Alexander Carter, and James McDade, and executed by Alexander McDade. The deed set out, a declaration of the embarrassed situation of the firm of Bynum & McDade, and recited that, in as much, as Jeremiah Cloud, William Mc-Dade, senior, James McDade, senior, and Thomas J. Faison, had become the sureties of the said firm of Bynum & McDade, and as said firm was indebted to Hi and C, S. Lucas — therefore, the deed was made to secure them.
    The bill of exceptions then set out, that “the said Lucas was offered as a witness on the part of the claimant; and was objected to, on the ground that he was directly interested, as he was called to protect property secured, by the deed, to himself and others, and had a direct interest in doing so. The Court overruled the objection, and decided that it was an interest that went only to his credit: and the said Lucas, and others similarly situated, were allowed to testify.
    “ It was proved, that, after making said deed of trust, to wit, in September’, eighteen hundred and thirty-three, a sale was had by the trustees : that at that sale, James McDade, the claimant, bid off the property in question ; that he did not pay any money at the time of the sale; that the terms of the sale were cash, to be paid the day of the sale; that thirty-five negroes, of different ages, were sold ; also, ploughs, wagons, mules, furniture, and other property, were sold; that no money was paid by any of the purchasers to the trustees ; and that all the property wap pormitted to remain in the possession of the .said' Alexander McDade, the original owner, from the date of the deed to the- day of November, eighteen -hundred and thirty-four, when it was levied on. Witnesses deposed, that the purchasers left the negroes they purchased with said McDade, to enable him to gather his crop.

      “ The plaintiff’s counsel requested the Court to charge the jury, that a mere liability to be damaged, as a security, would not, as against creditors, be held in law, a sufficient consideration to sustain an absolute sale.

      “ The Court charged the jury, that if the claim ant had became security of said Bynum & McDade before the said deed, and if he has, since the sale paid such liabilities so secured, as to discharge the said Bynum & McDade; and in doing so; has paid a fair price for said slaves, that it was a sufficient consideration to support the sale.

      “ The Court also instructed the jury, that if the negroes were left with the debtor, to aid in gathering his crop, it was authorised in law, and that the property remaining with the debtor, bona fide, under such an agreement, would not be, per se, fraudulent in law.
    “A witness was introduced on the trial, and asked by the claimant’s counsel, if he was not security for Bynum & McDade, on notes to the amount of three thousand dollars. The counsel for the plaintiff objected to the evidence, unless the note was produced, as it would be the best evidence. The Court overruled the objection, and decided that the witness might state the fact of, whether he was security on the notes, and to what amount; and the witness did answer said questions, and was also allowed to de that part of such debts were not due ajg the sale: which statement wTas made,: as a reason why cash payment was not] this claimant — it not being then require liabilities he was on.”
    In the case of Lucas, the bill of except^ that, “ on the trial of this cause, the plaintiff proved the levy of the execution, and that the property was in the possession, and under the control of Alexander McDade, one of the defendants in the execution. They also proved the value of the property.
    “ The plaintiff then offered Alexander Carter, as a witness, one of the trustees named in the deed of trust, under which the claimant claims title. The deed was made to said Carter and one James Me-Dade, to secure a debt due to H. & C. S. Lucas, and to secure said James McBade, and others, against loss, as the securities of Bynum & McBade — they having, as the deed recites, become liable, as the securities of said Bynum & McBade, to the amount of twelve thousand dollars. The property conveyed is thirty-five negroes, household furniture, wagons, &c.
    “ The plaintiff's counsel objected to said Carter as a witness, on the ground of interest,- as the claimant claims title through him, and because he has an interest in sustaining his acts under the deed. The claimant, Charles Lucas, released said Carter from all liability to him; which was made of record. No other release was given or offered, either by the other persons concerned in the deed of trust, or by the creditors of Bynum & McBade, secured in the deed of trust, or by H. &C. S. Lucas, or by any per-^ son, except said Charles Lucas. The plaintiff still objected; and said witness was examined, and de--posed to the making of said deed of trust, and all the acts he had done under it. No evidence was given, that he had been discharged from the trust, or had completed his duties, as such trustee.
    “Said claimant proved by the said witness, that a note, payable to George Poe, junior, or order, was in the possession of Lucas, and that he understood it to be, the note meant to be described in the deed of trust, as the debt to H. & C. S. Lucas, made by By-num & McBade. This testimony was objected to ; there being no testimony to shew that they were the same, and the debt described in the deed purporting to be the debt of H. & C. S. Lucas. The Court overruled the objection; and allowed the note and evidence to go to the jury. The said Carter was then ased by the claimant, if the said note had been deposited with him by the said claimant, C. S. Lucas,. He answered, it had. On being cross-examined, and asked, whether he had received it for the purpose of being executed, or given up to Bynum & ’McBade, he said, he could not say, that he was not authorised to give up or cancel it; and that if Bynum & Mc-Dade should apply for said note, he would not cancel or give it up to them.
    “ The other trustee was alsointroduced; and the' sarnie objections made, and overruled. He deposed,that he was one of the persons secured, or intended to be secured, in said deed: and that he had purchased some of the property named in said deed; and that no settlement had yet been made of said trust. He was then objected to, on this ground, that he was called to sustain and increase a fund in which he is interested. These objections were overruled; and he was examined as a witness.
    “ It was proven, that no money was given at the time of the sale; that no note was taken; that no-debt was cancelled; that the property was permitted to remain in the possession of the original debtor,from the date of the deed, to wit, second of May, eighteen hundred and thirty-three, to the- day of November, eighteen hundred and thirty-three; when it was levied on; that up to that time, nothing had been done, except the putting the property up; and selling it.
    “ It was proven, that the claimant,- Lucas, in October, a month after the sale, went to McBade, the' debtor, who was altogether insolvent, and took his promise in writing, for the hire of said negroes until the 25th of December ensuing, if they should remain so long in his possession; but took no security.
    “ It was also in proof, that the claimant had said he left the negroes, to gather the crop of the debtor.
    “.The property purchased by the claimant, amounted to upwards of twenty-eight hundred dollars. The note of Bynum & McBade, described in the deed of trust, is for twenty-three hundred and sixty-one dollars, or thereabouts, and interest.
    “ On this testimony, the plaintiffs’ counsel requested the Court to charge the jury, that a mere liability, as securities of Bynum & McBade, would not be deemed a sufficient consideration to sustain an absolute sale, as against judgment creditors.

    “The Court charged the jury, that if the persons intended to be secured in the deed, had become securities of Bynum & McBade, before the making of the deed; and the deed was made in good faith ; and though the trustees afterwards sold the property under the deed, and declared the terms to be cash; and if the persons thus intended to he secured, and being such securities, purchased at such sale; and if the trustees did not require them to give their notes, or pay cash, because they were such securities; and if they have since, to wit, pending this suit, paid money, or secured the same, - so as to discharge Bynum & McBade, and paid thereby, a fair equivalent, — it is such a consideration as willsupport the sale against all persons.
    “It was objected by the plaintiff’s counsel, that Charles S. Lucas, could not, without the consent of his partnei’, Henry Lucas, apply the said debt to the payment of negroes purchased for himself individually.
    “ It was proved, that during the pendency o'f this suit, said Lucas had made his own note, balance being small, and left if with one of the trustees-.; but the witness deposed that he had not closed the matter — that they could not agree about the bill of sale.
    “The Court overruled all said objections, and charged the jury, that if Bynum & McBade were indebted to H. & C, S. Lucas, • at the time of making the deed; and if C. S. Lucas purchased slaves- at the sale, and has since deposited the note of Bynum & McBade with the trustee — intending that it should be given up or cancelled, — that it was sufficient; although not done until after the property was levied .on — and although the trustee did not consider himself authorised to give it up or cancel it, had he been called on so to do, and that, notwithstanding the ■terms of the sale were cash, to be paid at the time; yet, if the said Charles S. Lucas has, since the pen-dency of this suit, deposited the note aforesaid, and Iris own note with the trusteee, for the balance of the purchase money, — such a consideration would support the sale.
    “ The Court charged the jury, that no one had a right to object to Charles Lucas applying the funds of the firm to his- own use, except Henry Lucas ; and that in the absence of the testimony, Ms assent was to be presumed.”
    The following were the facts set forth in the bill of exceptions, in the case against Faison—

      “ That on the trial of this cause, at the present term, before the honorable John W. Paul, Judge, Charles Lucas, one of the members of the firm composed of H. & G. S. Lucas, whose debt is described in the annexed deed, was produced as a witness on the part of the claimant. The said witness being sworn, was asked, if he and the claimant, and the other persons named in the said deed of trust, had not entered into an agreement to prosecute this, and other claims, now pending in this Court, for the property named in said deed, and to bear jointly the expenses of feeing counsel, paying costs, &c; and if he did not feel a common interest in all said claims. To which the witness answered, that he, and the other claimants, have employed counsel to attend to all the cases, and gave their joint note for said fee, but that said note was not a conditional one, but was to be paid, whether they succeeded or not in their several claims ; and that he did not consider that he was, in any manner, concerned, or interested, in the result of this suit: that the terms of a sale of the property named in said deed had taken place, at which the witness, and the other persons named in said deed, including the claimant, had purchased in all the property named in said deed, and that although the terms of said sale were cash, current money, yet as the proceeds of said sale would belong to the several purchasers, including the witness, that they did not pay any cash, but that they had made an agreement among themselves, that, at some future day, they would divide the proceeds of said sale, or the proprerty so purchased, pro rata, among themselves, according to the amount of their several demands.

      “The said witness also deposed, that the note held by H. & C. S. Lucas, had not been given up to By-num & McDade, or to either of the members of said firm, and that said not» had not been cancelled ; but he also stated, that during the present term, he had left the deed at the house of Carter, one of the trustees, to hold until a full division and settlement, and that said Carter now has the said note. The witness also stated, that the amount of the property purchased by him, exceeded the amount of the debt due to H. & C. S. Lucas, and that he has not, as yet, paid the excess, or given any note, or obligation, for the payment thereof, but expected to pay the balance on the settlement. When asked, why the said settlement and division had not taken place, he answered, that the securities of Bynum & McDade, named in said deed, did not know the precise amount they were liable for, or would have to pay: that some of the demands were not due until February last, and yet remained due.
    “ Under this state of facts, the plaintiff’s counsel moved the Court to exclude the witness, as being clearly incompetent; which motion the Court overruled, and permitted the witness to depose to the jury-
    “The claimant’s counsel asked the witness, what was the inducement alleged by Alexander McDade, for making said deed, and securing the persons therein named, and excluding others, who had been the securities of said firm. The plaintiff’s counsel objected to the question, and requested the Court to instruct the witness not to speak of any statement, that Alexander McDade may have made at any time, as it was in proof, that said Alexander Mc-Bade is still in life, and residing in this county; and that if overruled, in that request, then to confine the statements and conversations of said McDade, to the time of making the deed — it being in proof, that the deed was made at the house of A. Carter, on ■the day it bears date. The Court overruled all these objections, and permitted the witness to depose to statements, made by the said Alexander McDade, made at a different time, and on a different day, previous to the execution of the deed, to wit, that the persons named in said deed, were persons that he, the said McDade, had induced to become securities of said firm, and that he never had induced any other persons to do so; and that the property he was. about to convey was his individual property; and that he wished it to go to the payment and indemnity of those he had thus involved; to all which the plaintiff objected, and ivas overruled, and the testimony permitted to go to the jury.”
    It was contended, by Peck, in the case against M’Dade—
    First — The property was levied, on, in the possession of the defendant in execution. This was sufficient to subject it to the plaintiffs execution, unless the claimant has shown a title in himself — Hooper vs Pair, 3 Porter’s Rep. 401. .
    Secondly — The claimant’s right depends upon the effect of the paper, called a deed of trust, in the bill of exceptions. I insist this deed.vested no title whatever, in the trustees ;• that it merely gave them a power to sell, and until that power was executed; the title remained in the defendant in execution ; and the property was, therefore, liable to be seized, to satisfy the plaintiff’s judgment. If a man, by his will, directs his executors to sell his land, this is but a bare authority, without interest, and the land, in the meantime, until the sale, descends to the heir at law. Bergen vs Bennet, 1 Cain’s Cases, 15, 16 — ■ Jackson vs Schauber, 7 Co wen, 193 — Powel on Devises, 193.
    The operative words in this deed are not such as are used to convey an interest: “ I do hereby nominate^ appoint and constituted These words clothed the trustees with a mere agency, liable to be revoked at the will of the party ; and if he had died before a sale, the power would have been gone, and the property would have went to his personal representatives.
    Thirdly — If the Court, however, shall be of the opinion, that this deed operated to convey the property to the trustees, then, I insist, the Court below erred, in permitting Lucas, a party, secured by the deed, to be examined as a witness. He was clearly interested to sustain the deed ; because upon it, his security depended. A party has such a direct and immediate interest in the event of a cause, as will disqualify him, when the necessary legal consequence of a verdict will be to better his situation, by either securing an advantage, or repelling a loss. 2 Stark, on Ev. 746 — Kennonvs Mi Ilea, 2 Porter, 396.
    In the case of Faison, Peck, also, of counsel, said—
    First — The witness, Lucas, was incompetent, on the ground of interest. — 2 Starkie Ev. 746, 747, and notes.

      If this property is subjected to the payment of the plaintiff’s execution, the fund provided by the deed for the payment of the debt, will be lessened: he is, therefore interested in supporting the deed, and the sale under the deed. A legatee, whose legacy has been paid, is incompetent as a witness" for the executor, because if the estate is insufficient to pay the debts, his legacy is liable to be abated. — Strong’s ex’ors vs Finch, Ala. Rep. 356.
    Secondly — The declarations of Alexander M’-Dade ought not to have beén received. Mr. Star-kie says, “ No declaration by a person can be given in evidence, where the parly who made such declarations can he produced, and examined as a witness.” — 1st vol. Ev. 390 — Edmonstone vs Webb, 3 Ess. N. P. Rep. 264 — 6 Eng. C. L. Rep. 129.
    Alexander M’Dade was a competent witness, and if those declarations were proper and necessary, he should have been examined, instead of proving them by a third person.
   COLLIER, J.

— In these cases, a writ of fieri fas das was issued from the County Court of Tuskaloo-sa, to the sheriff' of Montgomery county, in favor of the plaintiff in error, against the goods and chattels, &c., of William D. Bynum and Alexander McDade, which was levied on some slaves in the possession of Alexander McDade; to which the defendants respectively interposed their several claims,- and tried the right in the Circuit Court of Montgomery, as our statute directs.

On the trial, the defendant McDade, gave in evidence, a deed, executed, the second day of May, eighteen hundred and thirty-three, by which Alex-der McDade, acknowledged that Jeremiah Cloud, William McDade, senior, James McDade, senior, and Thomas J. Faison, had become the sureties of the said Bynum and himself, for the payment of a large sum of money, and that Bynum and himself were indebted to Henry and Charles S. Lucas, in a large sum of money, expressing, particularly, the. extent of the suretyship of the said partios, as well as the debt owing to the Messrs. Lucas. And thereby nominated,, constituted and a ¡/pointed Alexander Carter, and the said James McDade, senior, with full power to sell the negroes in question, together with others, and other personal property, in such “manner and form as seem to them best, for the interest and benefit” of the parties intended to be provided for.

It was further proved, in the case against McDade, that a sale at auction was made in September, eighteen hundred and thirty-three, of the property designated in the deed, and remaining in the posse.ssion of Alexander McDade: it was levied on, in November following.

In each of the cases, we find a bill of exceptions, taken upon the trial. In the case against James McDade, it appears, that the plaintiff’s counsel objected to the competency of a witness, introduced by the defendant; that his objection was overruled, and the witness examined. To the charges and refusal to charge by the Court, theplaintiff’s counsel except, and to nothing more. Had the plaintiff desired to take advantage on error, of the admission of the wit- ! e¡.«, he opinion of the Court should have been excepted to : the record showing nothing farther than that his competency being questioned, the objection was overruled by the Court. The plaintiff’s counsel must be understood to lidve acquiesced in the decision. There was no intimation given of an intention to except. Had such intention been declared, the defendant might have discharged the witness, and thus have disembarrassed his defence; but there being no such annunciation made, it would be unjust to the defendant, to give to the plaintiff an advantage here, of that which was not saved below.

In this case, the Court was requested to charge the jury, “ that a mere liability to be damaged as a security, would not, as against creditors, be held in law, a sufficient consideration to sustain an absolute sale." Without giving a direct answer to this request, the Court charged the jury, that if the defendant had become-the surety of Bynum & McDade, before the deed was executed, and has, since his purchase of the slaves in question, discharged their lia-, bilities, for which he was a surety, and in doing so, has paid a fair equivalent for the slaves, his purchase is sustained by an adequate consideration : and further, if the negroes were left with Alexander McDade, to aid in gathering his crop, that a ■bona fide possession-was not, under such circumstances, fraudulent, per se.

The bill of exceptions discloses no evidence to shew the pertinency of the instruction asked of the Court. In fact, the idea that there was such proof, is negatived by the deed, constituting Carter & Mc-Dade trustees to sell property in relief of the sureties, and to pay debts.

In regard to the first charge of the Court, it is clear that there is no error. If the defendant was the surety of Bynum & McDade,at the time the deed was - executed, and has since discharged the liabilities he had guaranteed, to an amount equal to the price of the slaves purchased by him, the consideration for his purchase was certainly adequate.— i Without pretending to determine, whether, where ‘"there is an absolute sale of slaves, unaccompanied by possession, the transaction may be freed from the imputation of fraud, by shewing that they were left with the vendor, to enable him to gather a growing crop, we are of opinion, that the publicity of the sale, dispensed with the immediate delivery of possession, and operated as a notice to the world, of a change of property — Kidd vs Rawlinson If, however, the slaves were suffered to remain without a change of possession, to effect some sinister end, as to defraud third persons, by giving to their possessor a false credit, the publicity of the sale would avail nothing. Or, if personal property is suffered to remain with the vendor, for an unreasonable length of time after a public sale, so as to warrant the inference that the transaction is merely colorable, the sale, though public, will not pass a title to the ven-dee, against the creditors of the vendor. Here the negroes were levied on within the same year, and but two months after the sale, and it was proved, that they remained with Alexander McDade to aid in gathering a crop, to the cultivation of which they had contributed. Under these circumstances, the Court might, with propriety, have instructed the jury, that if the possession was bona fide, such possession did not, per se, avoid the sale.

In tiie ease against Lucas, the same objection maybe made to the bill of exceptions, as in the case against McDade; though the Court, as we are in formed, overruled several objections to the introduction of testimony, yet, only the charges given and refused by the Court, are excepted to. The charges given and refused in this case, only so far as Amriant from those shown by the bill of exceptions in the case against McDade, will be noticed.

The Court charged the jury, that if the persons intended to be secured in the deed, had become sureties of Bynum & McDade, before the deed was made, and it was made in good faith, though the trustees afterwards sold the property under the deed, declaring the terms to be cash, and if the persons intended to be secured, purchased at such sale, and the trustees did not require them, because they were the sureties provided for by the deed, to give their notes or pay the cash, and if they have, since the pendency of this suit, paid money, or secured it, so as to discharge Bynum & McDade, and the price paid, or secured, for the slaves, was a fair equivalent — (he consideration was adequate to sustain the sale.

The Court further charged the jury, that if By-num & McDade were indebted to H. & C. S. Lucas, at the time of making the deed, and if C. S. Lucas purchased slaves at the sale, and has since deposited the note of Bynum & McDade with the trustee, intending that it should be given up, or cancelled, that it was sufficient, although not done until after the property was levied on, and although the trustee did not consider himself authorised to give it up, or cancel it, had he been called on to do so, and that notwithstanding the terms of the sale were cash, yet, if C. S. Lucas has, since the pendency of the present suit, deposited the note of H. & C. S. Lucas, against Bynum & McDade, and his own note, for the balance of the purchase money, with the trustee, the sale would be sustained by a sufficient consideration.

.The Court further charged the jury, that no one but Henry Lucas, had a right to object to Charles S. Lucas applying the funds óf H. & C. S. Lucas to his own use, and that in the absence of proof, his assent to such application was to be presumed.

The record in this case, does not furnish a copy of the deed alluded to, in the instructions of the Court to the jury, or inform us what were its provisions, so that we cannot say that the charge of the Court is erroneous. The deed may, (and we think, probably does,) invest the trustees with large discretionary powers, which made it proper for the judge thus to charge the jury. If such be the character of the deed, and the trustees have not transcended their powers, the question most likely to arise, in a controversy between (be purchasers and a stranger to the deed, would be as to the honesty of their purchases. But if is needless to speculate upon a writing not now before us.

In respect to the right of C. S. Lucas, to make an individual application of the funds of II. and C. S. Lucas, we think it a question which (he plaintiff in error could not raise. No matter how the slaves were paid for, if the purchase was, in other respects, free from legal objection, the title, as against all strangers, would be valid. Henry Lucas might perhaps complain, and, under some circumstances, might hold Bynum and M’Dade still liable to him, or else charge C. S. Lucas, as a trustee, holding the slaves for the joint-benefit of H. and C. S. Lucas.

In the case against Faison, it appears, from the bill of exceptions, that C. S. Lucas, (one of the parties, provided for, by the deed, which is made part of the record in the case against M’Dade,) was introduced as a witness to sustain the deed, and a sale made under it, by the trustees. His competency was objected to, and the objection overruled. The same witness was examined, as to declarations of Alex-der McBade, made some days before the deed was executed, against the consent of the plaintiff; to both which decisions the plaintiff excepted.

That the witness hada direct and immediate interest in the event of the cause, seems too clear to require argument. If the deed was upheld, the fund providing for the payment of his debt, and that of others, would remain undiminished; otherwise, it must be lessened, and if inadequate to meet all demands upon it, the witness must sustain a loss, pro-, with the other favored creditors

The admission of the witness to depose, as to the declarations of Alexander McBade, was not permissible. Starkie lays it down, that no declaration, or entry, by any person, can be given in evidence, where the party who made such declaration, or entry, can be produced and examined as witness — Yol. 1, 390. See also Kennedy vs Meador * That Alexander Mc-Dade was a competent witness, seems unquestionable. In point of interest, it was immaterial to him which party was successful; if the plaintiff failed in condemning the slaves, to the satisfaction of the-. Bank’s judgment, he was .still liable to its payment; and if the plaintiff was successful, the defendants’ demand was still open against him. So, that in any view, there was an tequilibrium of interest, which never disqualifies. There can be no pretence, that the declarations of the witness were admissible, as a part of the res gestae. They were made at a time and place, different from that at which the deed was executed, and the execution of the deed being the only thing done, they cannot be referred to it.

Our conclusions, then, are, that the decisions of the Circuit Court, overruling the plaintiff’s objections to the admission of evidence, in the cases against McDade and Lucas, can not be revised; because they are not excepted to, but are merely recited in the bills of exception, as a part of the history of the causes; and that the judgment in these causes are consequently affirmed.

The exception being well taken, in the case against Faison, the judgment in that case is reversed, and the cause remanded.

GOLDTHWAITE, J. not sitting.

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source: Caselaw Access Project

author: COLLIER, J.

license: Public Domain

text:
    KENNEDY VS SPENCER.

      Points of practice upon records drought up by writ oj error.

    1. To authorise this Court to consider errors, assigned upon the transcript of a record, such transcript must appear to be properly attested by the Clerk.
    2. But, where the transcript of a record is on file, though imperfect as to the attestation of the Clerk, the judgment will nut be affii tried on certificate, at t e first term. — The practice in such case authorising a certiorari.

    A motion wtts rinde, in this case, t > affirm upon certificate, n > transcript beingfiled. The writ of error was filed in the case, and a transcript appended thereto, which hitter was not s:gned or attested by the Clerk of the Court, to which the writ of error issued.
    Gayle, ft r the motion.

      Thur'Jou, contra.
   COLLIER, J.

— ’The defendant, by his counsel, moved the Court for a judgment of affirmance on certificate. It appears that there is a good writ of e tor on file, attached to which are several sheets of manuscript, purporting to be a transcript of proceedin ?s between the parties in the Circuit Court of Mobile, but neither subscribed or in any manner altes ed by the clerk.

That the transcript is not so authenticated as to authorise us to regard it in considering the errors assigned, without defendant’s consent, is a point on which we do not doubt. By an act of the legislature, as well as by a practice coeval with our State government, the clerk of the inferior Court is required to give to the party suing out a writ of error, an attested copy of the record of his case.. The plaintiff is not, then, authorised to have his case revised, upon a transcript that bears less conclusive evidence of its genuineness.

We are not, however, at liberty to affirm the judgment on certificate, at the first term, where there is a record on file, however imperfect it may be. The practice of this Court in such cases, is to grant a cer-tiorari, to perfect the transcript. And this practice seems to us to be authorised by a just interpretation of our statutes, and in advancement of the ends of justice.

The motion is therefore, denied.

GOLDTHWAITE, J., not sitting.

       D!s*


author: HOPKINS, C. J.

text:
    BOTTS et al. VS BRIDGES, Judge, &c.

      As to demurrers to several assignments.

      As to profert of a bond: and prayer of oyer.

      As to the bond of a keeper of a ferry.

    1. The principle which gives a right of demurrer to each of se«-veral counts, authorises also a demurrer to each of several assignments of breaches upon a bond.
    2. Omission to make profert of a bond, can only be reached by special demurrer.
    3. Under the rules of practice in this State, the right of a defendant to crave oyer, subsists, whether profert be made or not.
    4. It is no objection to the condition of the bond of a ferry-owner, (given under the statute,) that he is required to keep good and sufficient boats, instead of a good and sufficient boat or boats ■ — the legal effect of the condition being the same.
    5. That the keeper of a public ferry is requited by the condition of his bond, (in addition to the statutory recitals,) to do and perform generally all matters and things required by the laws of the State, in such cases made and provided, to be done and performed, by the keepers of public ferries, for and during the time he may keep his ferry, — does not enlarge the legal effect of the statutory condition, or increase the duties of the ferry-owner beyond his liability under the statute.
    6. That a ferry-owner, by his negligence, and that of his servants, in keeping and managing the ferry, caused a loss of property in its conveyance across the stream, is, it seems, a proper assignment of breach of that part of the condition of his bond, as taken under the statute, which requires the ferry to be well attended.
    7. In an action of debt against the keeper of a ferry, upon his bond, judgment for damages only is good.
    In error to the Circuit Court of Wilcox.
    This case was an action of debt, by Bridges, Judge of the County Court of Wilcox, for the use of Rodgers, upon the bond of Botts, and another, given by Botts, as the keeper of a ferry.
    The declaration complained, — “ For that, theretofore, the said defendants, on the fourth day of February, A. D. one thousand eight hundred and thirty-three, in the County aforesaid, by their certain writing obligatory, sealed with their seals, (which writing obligatory is, as directed by law, on file and on record, in the office of the clerk of the County Court of said County, and so cannot be shewn to the Court by the plaintiff,) acknowledged themselves held and firmly bound unto the said John W. Bridges, Judge of the County Court aforesaid, and his successors in office, in the sum of one thousand dollars, to be paid to the said John W. Bridges, Judge, &c. as aforesaid, when they, the defendants, should be thereunto afterwards requested, which said writing obligatory, was, and is subject to a certain condition thereunder written, to the effect following, to-wit— that the said George W. Botts had obtained a license to keep a public ferry on the Alabama river, at the place commonly known as Gregg’s Landing, on said river; and that if said Botts in so doing, (to-wit, in keeping said ferry,) should constantly provide and keep good and sufficient boats; also, should keep the banks on each side of the river in good repair, and faithfully and constantly attend said ferry,, for the passage of travellers, carriages, horses, &c. over the same, and do and perform generally, all matters and things required by the laws of this State, in such cases made and provided, to be done and performed, by the keepers of public ferries, for and during the time he may keep the same, — then the above obligation to be null and void, otherwise to be and remain in full force and effect. Yet the said Botts hath not from the time of the making of said writing obligatory, and while he was still .the keeper of said ferry, to-wit, on the --day of February, eighteen hundred and thirty-five, in the county aforesaid, kept the banks on each side of the river, in good repair; and in consequence of the negligence of said Botts, and his servants, in not keeping said banks in good repair, the wagon and two horses of said Wiley Rogers, (for whose use this action is brought,) of the value of four hundred dollars, in crossing said ferry, were wholly lost; and this by the negligence of himself and his servants, to-wit, on the twentieth day of February, Anno Domini one thousand eight hundred and thirty-five, in the county aforesaid.
    And for assigning a further breach of the said condition of the said writing obligatory, the said plaintiff, according to the form of the statute, in such case made and provided, saith — that the said Botts, after the making of the said writing obligatory, and during the time he was the keeper of said ferry, to-wit, on the- day of February, Anno Domini eighteen hundred and thirty-five, did not perform all matters and things required by the laws of this State, in such cases provided, to be performed by the keepers of public ferries; but on the contrary, by and through the negligence of the said Botts, and his servants, in the management of said ferry, a certain other wagon and two other horses of the said Rogers, of the value of four hundred dollars, in crossing at said ferry, were wholly lost to the said Rogers, to-wit. oh the first day of March, Anno Domini eighteen hundred and thirty-five, in the county aforesaid.
    And for assigning a further breach of the said condition of the said writing obligatory, the said plaintiff, according to the form of the statute, in such case made and provided, further says, that-, after the making of the said'writing obligatory, and during the time that said Botts was keeper of said ferry, to-wit, on the second day of March, Anno Domini eighteen hundred and thirty-five, in the county aforesaid, the •said Botts and his servants, so negligently behaved in the keeping and management of said ferry, that in putting across the said ferry, a certain other wagon and other horses of the said Rogers, the, said last mentioned wagon, and two horses of the value in whole of four hundred dollars, were by the negligence of said Botts and his servants, wholly lost, to-wit, on the second day of March, Anno Domini eighteen hundred and thirty-five, in the county aforesaid.
    Yet the said plaintiff (in fact saith, that the said Botts hath not, though often requested,) as yet paid or made good unto the said Rogers, any compensation for the said several losses by said several negli-gences as aforesaid, but hath hitherto wholly neglected and refused so to do, to-wit, in the county aforesaid, to the damage of the said Rogers, in the whole, of one thousand dollars, whereby an action hath accrued to the said plaintiff, to demand and have, of and from the said defendant, the said sum of one thousand dollars, the penalty of said writing obligatory, above demanded.”
    The defendants demurred generally, and to each breach assigned; and the same being overruled, they plead performance: upon .which a jury rendered a verdict for damages against defendants. Upon which they took a writ of error.
    It was assigned in this Court—
    First-^-that the demurrer should have been sustained.
    Second — that the judgment found damages only without the^debt.
    Third — that there was no sufficient cause of action.
   HOPKINS, C. J.

— The action in this case is debt upon a penal bond, made by the plaintiffs in error, to Bridges, the Judge of the County Court of Wilcox county, to enable George W. Botts, one of the obli-gors, to obtain a license to keep a public ferry on the Alabama id ver. The suit is in the name of the judge, to whom the bond was made, for the use of Wiley Rogers.- In the declaration ■ the condition of the bond is set out, and three breaches of it are assigned. The declaration also contains an averment of matter, intended as an excuse for the omission of profert of the bond. The plaintiffs in error demurred to the declaration, and separately to each assignment of the breaches.

The right to demur to each of several counts, is clear ; and the principle upon which it is founded, au-thorises a demurrer to each of the assignments. The demurrers were overruled by the Court below ; and upon a plea which was afterwards filed, there were a verdict and judgment against the obligors.

The first question presented by the assignment of errors here, is, whether the omission of profert, is a defect, for which, the judgment of the Court upon the demurrer, ought to have been in favor of the plaintiffs in error'? Upon the construction of our statute of amendments, it was held by this Court, in 1822, that an objection for such an omission could be made on a special demurrer only. In one thousand eight hundred and twenty-six, this construction of the statute »was [approved and acted upon by the Court. None of the cases cited, shew that the point has ever been decided differently here.

The’’ construction ought to be considered settled; and we are the less inclined to inquire into its correctness, because the seventh rule, established by this Court, in 1830, for the regulation of the practice in the Circuit and County Courts, gives the defendant, in any such Court, a right to oyer of any instrument, which is thej! foundation of the action against him. This right must be allowed, as we understand the rule, whether aprofertbe made or omitted in the declaration. By a statute passed in 1824, it was enacted, that no demurrer shall have any other effect than that of a general demurrer. As there is no mode now in which a party can raise any question for an omission, in a declaration, of profert — such an omission is without any legal effect.

Of the other questions argued at the bar, two were 1st. Whether the condition of the bond is such as the act prescribed, which authorised the Judge of the County Court to take the bond.

2d. If the condition enlarged the liability of the obligors, whether the bond is wholly void, or void only for any excess of liability beyond that which the statute required to be created by the execution of the bond.

The act which authorises such bonds to be taken, provides, that the condition of them shall be, that the person to whom a license to keep ,a public ferry is granted, “ will constantly provide and keep a good and sufficient boat or boats ; also keep the banks on each side of the water course in good repair, and that the ferry shall, be well attended for travellers or other persons to carry or pass their horses, carriages or effects, over such river or water-course.”

The conclusion to which we have come on the first of the last two questious that we have mentioned, will render it unnecessary to decide the last of the two.

An objection has been made to that part of the condition, which required Botts to keep good and sufficient boats. The condition prescribed by the act, is, that the keeper of a public ferry shall keep a good and sufficient boat or boats. Upon the condition set out in the declaration there could be no recovery on the bond, for the failure to keep two boats, uqless the injury alleged could have been prevented by having that number at the ferry instead of one, and a condition in the words prescribed by the act would be broken, if it could'be proved that the loss in such a case could have been avoided, had there been two sufficient boats at the ferry. The legal effect of the condition in this respect, as set out, and as it has been prescribed by law, is the same.

It has been contended, that another part of the condition set out in the declaration, and upon which the second breach was assigned, is an excess beyond the condition required by law. This part of the condition is, “ that Botts shall do and perform generally all matters and things required by the laws of the State, in such cases made and provided to be done and performed by the keepers of public ferries, for and during the time he may keep his ferry.” The breach assigned on this part of the condition is, that the injury alleged in the declaration was the result of the negligence of Botts and his servants, in the' management of the ferry, while they were carrying the property of Rodgers across the ferry. The argument in support of the objection to this part of the condition, was, that it would make the obligors liable for any loss sustained by a person, in crossing' the ferry, which was not the result of inevitable ae--cident, or of an act of a bublic enemy of the country.

If such would be its effect, this part of the condition would be void, and the bond also, at least pro1 tanto. Botts was bound by this condition, to do such things only, as the laws made in such cases, required of the keepers of public ferries. The keepers of public ferries are required by the laws, as such keepers, to keep the banks of the river, at their respective ferries, in repair, to provide a sufficient boat or boats, and to attend their ferries well. For any failure to do these things, they and their securities may be liable upon their bonds.

But their liability for losses, not caused by a breach of the lawful condition of their bonds, can not be legally claimed upon their bonds. A responsibility for injuries for any other cause, would be upon them, not as keeper's of public ferries, but as common carriers ; and, in such a responsibility their sureties would not share. This part of the condition did not, we think, increase the duties of Botts, as a keeper of a public ferry, or enlarge the legal effect of the condition required by the statute. K J

The last objection made to the declaration, is, that the breach in the third assignment is alleged to have consisted in the negligence of Botts and his servants, in keeping and managing the ferry, from which negligence the property of Rogers was wholly lost, while they were carrying it across the ferry.

That such negligence, and consequent damage, were a breach of that part of the condition which required the ferry to be well attended, we do not doubt. Negligence in the keeper of the ferry or his servants, in conducting the boat with the property of Rogers on board, was want of the attention required by the lawful condition of the bond.

The other questions, of which we have to take notice, are, 1st, that the verdict is defective, in not finding the debt, as well as assessing damages; 2nd, that the judgment is erroneous, in being for the damages only, which the jury had assessed.

For any recovery upon a bond of a keeper of a public ferry, the act of eighteen hundred and twenty-one, directs such a judgment to be rendered, as the one in this case, aud there is no defect in the verdict, for not finding that, for which there ought not to have been a judgment.

As this act, as well as that of eighteen hundred and twenty-four, which is a copy of the statute of 8 and 9 W. 3, for the regulation of the proceedings in actions upon bonds with ■ collateral conditions, are both contained in Aikin’s Digest, which has been established by law, each of the statutes must be allowed some effect.

To give the act of eighteen hundred and twenty-one the effect which we ascribe to it in this case, will limit but little, the operation of the act of eighteen hundred twenty-four.

Let the judgment be affirmed.

      £Ia,RePs

      tib. 123

      Aik. Dig. 363

       3stew.r ■109,427.

      Hik. Dig. 304


text:
    SALTMARSH VS BEENE.

      Question as to a purchase of property by a trustee; and as to agreements thereto.

    3. A trustee employed or appointed to sell an estate, can not, either directly or indirectly, effect a purchase of the property sold, for himself.
    2. Thus, where one, being appointed a commissioner by the Orphans’ Court, to sell real estate, entered into an agreement with another, whereby the estate should be purchased by the latter, and afterwards divided, — on refusal of the buyer to convey, Chancery refused to enforce the agreement.
    In error to the Circuit Court of Dallas, on a decree of the Chancery side of that Court.
    In this case Allanson Saltmarsh exhibited a bill in Chancery, against Jesse Beene; which set forth that, on or about the first day of February A. D. eighteen-hundred .and thirty, orator agreed with defendant, in writing, that defendant, for the mutual benefit of the parties, should purchase a certain tract of land, known as the S. E. quarter of section of thirty-five, township sixteen, range nine ; that, in pursuance of said, agreement, on the said first day of February, aforesaid, at a sale by auction, had under due course of law, for the benefit of the heirs of Thomas Ewing, the said defendant hid off the afoi’esaid land. — * That subsequently, orator and defendant executed a joint note, for the price of the lands, and titles were made to defendant; that by said agreement, orator was to receive possession of the west half of said quarter section, and defendant the east half thereof. That, when an adjustment had been made, in relation to the relative value of the two tracts, defendant refused to make the title agreed upon, until orator should agree to a reservation in the deed, of a road, which defendant insisted should be granted upon the lands allotted, under the agreement to orator , and which he insisted should be inserted in the deed. The bill, therefore, prayed an enforcement of the agreement.
    This was the agreement referred to in the bill.
    “A. Saltmarsh and J. Beene agree to buy the S. E. quarter of section thirty-five, township sixteen, range nine, at S. B. Ewing’s sale this day, to be made, and when purchased, they are to divide the same, allowing Beene the east half of said quarter, at a price according to its relative value, when compared with the west half of the same quarter— the purchase price to govern; and A. Saltmarsh to pay as much more as his half is worth more than Beene’s. 1st February, 1830.
    “a. saltmarsh.
    “j. BEENE.”

      A supplemental bill filed in the cause, shewed, that Beene had commenced an action at law against orator for a trespass on the lands, and prayed an im junction : which was granted.
    The answer of Beene admitted signing the writing, but contended it was not delivered to complain-, ant. It set forth, further; that complainant, with others, had been appointed by the judge of the Or-: phans’ Court, commissioner to effect a sale of the lands in question — which were part of the real estate of Thomas Ewing: that Saltmarsh was offered and received as his surety; and that he had dis-. charged the note himself — That long previous to the said purchase, defendant bad wished to purchase the whole of the lands aforesaid, for a healthy residence for his family. — That, with a view to the improve-, ment of his portion of the land, he retained the privilege, verbally, at the time of signing the said agree-i ment, of opening a road along the dividing line between the east and west halves of said quarter section of land — that, to this complainant assented.— That, after the sale, respondent proceeded to draw a conveyance, reserving the road aforesaid, wdiich he proposed to execute to complainant; but, that complainant refused to accept it, on account of the reservation of said road. The answer then insisted on being discharged from any obligation to convey: and averred want of consideration, estoppel of complainant from his deed as commissioner, &c.
    After testimony taken in the cause, not necessary here to be inserted, the cause came on for hearing, and the Chancellor dismissed the bill, at the costs of complainant, and he took a writ of error.

      Peck, for the plaintiff in error.

      Clark, contra.
    It was said, for the plaintiff in error—
    First. — Is the agreement of the first of February, eighteen hundred and thirty, a sufficient contract to hind the parties 'l A contract is the mutual assent of two or more persons, competent to contract, founded on a sufficient or legal motive, inducement or consideration, to perform some legal act, &c.— Chit, on Con. 2, 3. .
    It will not be objected, I presume, that the parties were not competent to contractj; nor that they did not, in fact, contract. The question then arises— was there a sufficient legal motive or consideration'? In the first place, I insist, that the mutual undertaking to purchase and divide, exhibits both a legal motive, and a sufficient consideration. — Chit, on Contracts, 16.
    Chancellor Kent says, “A mutual promise amounts to a sufficient consideration, provided the mutual promises be concurrent in point of time, and in that case, the one promise is a good consideration for the other.” — 2 Kent’s Com. 365.
    This agreement is signed by both the parties, evidently shewing that they considered it as imposing mutual obligations. The promises are reciprocal, and agree in point of time. 1st. The parties agree to purchase a certain piece ofland'together: 2d. When purchased, they agree to divide the same: 3d. In this division it is agreed that the complainant sha^l have the West, and the respondent the East half thereof; and, inasmuch as the complainant’s part was esteemed to be more valuable than the respondent’s, it is further agreed, that this difference in value shall be adjusted between them, having reference to the purchase price, as the criterion or rule, by which such adjustment was to be made, &c.
    In this agreement, therefore, it is believed, is embraced all the necessary constituent parts of- a perfect contract. — Roberts on Frauds, p. 117, note 58, and the cases there cited.
    Secondly — The agreement in this case has been partly performed — the purchase was made. The parties divided the land, run out and marked the division line. The complainant was let into the possession — enjoyed that possession for several years, and made valuable improvements, and the relative value of the two parts was settled and adjusted between the parties. These acts of part performance, even had the contract not been in writing, would have taken it out of the statute of frauds, and entitled the complainant to a specific performance.— Roberts on Frauds, 137 to 140.
    The complainant has complied, or rather has offered to comply with the agreement, in all things, on his part. The tender charged in the bill is fully proved by the testimony of both Paul and Perry.
    Thirdly. — Let us now inquire, whether any substantial objection can be urged to the execution of this agreement, on the ground that it was made in violation of some rule of law; or is contrary to public policy.
    . J(l. The respondent, in substance insists, that, in as /much as the complainant was one of the commissioners, he could not, therefore, become either direct-( ly or indirectly, a purchaser at his own sale. This Court, however, has not objected to such pur- u s, unless evidence of fraud or unfairness appears.— Gayle et al. vs Singl-.ton, 1 Stewart, 567 ; Braman et al. vs Oliver, 2 Stewart, 47, and the cases there cited; 1 Dess. 153. In the case of Jackson vs Wool-ssy, 11 Johns. Rep. 456, 508, mar. the validity of a purchase by a guardian ad litemt at a sale by commissioners, pursuant to an order of Court, came in question. It was objected, that a purchase by the guardian was illegal and void, but the Court said, “ The guardian having purchased the premises, does not affect the proceedings; nor can they, on that account, be deemed fraudulent. It was a public sale to the highest bidder, authorised by statute, and under the sanction and inspection of a Court. Without circumstances of direct fraud, therefore, to support such an allegation, the deed is valid in law.”
    Guardians exercise a peculiarly delicate and important trust — they act for those who, from their minority, are supposed to want that judgment and discretion necessary to protect their.own rights. Yet, even they, under certain circumstances are permitted to purchase their wards’ estate.
    The English rule, which declares that a sale, when the trustee to sell is the purchaser, is, as it regards the cestui que trust, ipso jure, void, has not been adhered to'strictly, in this country. The cases referred to by the Court, in the case of Braman et al: vs Oliver, shew, that the highest American tribunals have, in many instances, found it necessary to depart from the strictness of this rule. At any rate, this can not be made an available objection, nor do we any where find, it sc, in a content between third' persons: — 5 Johns. E. 43; Jackson vsYanDalfsen, and note, (a) 48. On an - application by the cestui que trust the Chancellor will set aside the sale. This shews that such a sale is not void, but voidable, only, at the instance of the party supposed to be injured. Davoue vs Fanning et al 2 Johns. Ch. Rep. 252; Gal-¿átiuvs Cunningham, 8 Cowen, 361,370,376, 77, 78.
    2. Another objection, which will probably be raised, is, that the agreement is ia fraud of auction sales, and therefore void in consideration of public policy. I readily admit, that an agreement to prevent, or put down competition at a public auction, would be contrary to morality and sound policy, and should not be enforced; but this is not socli an agreement. The object was not to prevent, nor indeed did it prevent, competition, x Here was a quarter section of land to be sold, in one piece. The complainant wanted one half, and the respondent wanted the other, and neither wanted the whole.— The manifest tendency of this agreement, therefore, was to enhance the price at the sale: for, without this agreement, it may fairly be presumed, neither, would have been willing to bid a fair price for the whole tract. No certain amount was fixed beyond which, they would not bid.
    This agreement does not fall within the principle decided in the case of Carrington vs Caller, 2 Stewart, 175. There the avowed object of the agreement was an association for the purpose of putting down competition at a public sale. Nor do the cases there cited oppose the correctness of this agreement. Furthermore, ought the respondent be permitted to take shelter under this principle to avoid the execution of this agreement, after the complainant hac been let into possession, and with the respondent’s permission, made valuable improvements'?
   COLLIER, J.

— This cause comes up by appeal from the Equity .side of the Circuit Court cf Dallas County.

From the record we learn that the plaintiff here,together with two other individuals, were appointed commissioners, by the judge of tho County Court of that County, to sell at public auction the real estate of Thomas Ewing, deceased. That both the plaintiff and defendant being desirous to purchase, the one the west and the other the east half of a quarter section of land, belonging to the estate, on the day of, and imm'ediately preceding the sale they agreed in writing to purchase the quarter section, and divide it by assigning each to the other, the part respectively stipulated for in their agreement. At the commissioners’ sale,"Beene became the purchaser, complied with the terms of sale, and received a deed, executed by all the commissioners. After-wards, being called upon to execute his contract, by making a deed for the west half, to the plaintiff, he refused to do so, but with a reservation of a right of way through the same. The plaintiff declining to yield to this requisition, the defendant brought an ac-' tion at law, to eject him from the possession, which he had before acquired. And (hereupon the plaintiff filed his bill to enjoin a trial at law, and to compel the defendant to perform his contract by executing a deed.

The argument of this cause has taken a wide range, and many questions have been discussed, the consideration of which is rendered unnecessary by the view we .shall take of it. The first question which naturally presents itself, is this — has the plaintiff acquired a right, by his contract with'the defendant, which a Court of equity will regard and protect 1 This must depend upon his right to purchase at the commissioners’ sale. By the civil law, the same person cannot be both buyer and seller; because, if he were permitted to be the purchaser, his duty and his interest would stand in direct opposition : for, as the representative of the owner, it would be his duty to bargain for the highest price, while, as purchaser, it would he his interest to give the lowest.” For these reasons, and to guard against frauds, which, in many instances would be beyond human detection, that law inhibited purchases by persons thus circumstanced.

This rule of the civil law is practised upon in our Courts of Equity, and applied to trustees, agents, and generally to all persons who have been employed in a confidential character in relation to property. Whichcote vs Lawrence; Campbell vs Walker ; Lister vs Lister, Green vs Winter; Crow vs Ballard; Lord Hardwick vs Vernon; Ex parte Reynolds; Ex parte Lacey; Owen vs Foulkes; Ex parte James; Pankist vs Alexander.

And it is immaterial, whether the sale be made privately or at public auction, the reason of the rule is as strong in the one case as the other; though the chances for detection would be more favorable in the latter, than the former, if any unfairness were practiced by the purchaser. See the case of the York Buildings Company vs M’Kenzic ° M ^

Nor does it make any difference though there be a plurality of trustees. — -A sale by one trustee to his co-trustee, is illegal. — Ringold et al. vs Ringold et al. Each owes to his situation the same duty that ail do., and is, therefore not permitted to do any acs which may tempt him from its honest performance, or give him an interest adverse to his constituent.

It is a well established rule of law, that a man can not do, indirectly, ¡hot which it is unlawful to do, directly. If, then, the plaintiff could not have purchased at the commissioners’ sale, (of which we have no doubt,) it was certainly incompetent for him to have purchased through the agency of the defendant. Such a purchase is obnoxious to every objection that could be urged against a purchase by the plaintiff, directly, with a force increased, by the increased difficulty of detecting any unfairness in the sale. While a trustee is restrained from purchasing at a sale made by himself, in that character, either personally, or through the intervention of an agent, he can not, at. such sale, become the agent of a purchaser. Ex ' parte n ,. c* Bennett.§

The doctrine as to purchases by agents or persons exercising a confidential character, is founded rather upon general principles, than upon a state of facts as applicable to any particular case. In ex parte James, it was decided that the purchase was not permitted in any case, however honest the circumstances; the general interests of justice requiring it to be destroyed in every instance — no Court being equal to the investigation and ascertainment of the truth in mwh the greater number of cases .HkLord Rosslyn was of an opinion, that to authorise'the sale to be set aside, it should be shewn that the agent or trustee had gained an advantage by the purchase-# Whichcote vs. Lawrence. ' But the correctness o,f Lord Rosslyn’s opinion is denied by Lord Eldon, in the cases of ex parte James and ex parte Bennett, already cited. And the true rule now recognised in the Courts of Chancery, both in England and this country, is that laid down in Lord Ahanley, in Campbell vs Walker, that a trustee purchasing the trust property, is liable to have the purchase set aside, if in any reasonable time thereafter, the cestui que trust makes known his dissatisfaction.

If the general interests of justice inhibit the purchase of the trust property by the trustee, eitber by himself or an agent, it follows necessarily that he cannot purchase jointly with another. The plaintiff, by whatever name he may be technically designated, must be regarded in equity, as a trustee, subject to all the 'rules of law that, are applicable to purchases made by individuals standing in that character. And a purchase made by the defendant for the joint benefit of himself and the plaintiff, may be considered as if made by the plaintiff himself, if it were necessary. If a trustee purchases the trust property, and receives the proper evidences of title, his title will prevail against all strangers, and he may re-claim the property if dispossessed, or may maintain an action for any injury it sustains. But he cannot enforce a contract entered into, in contemplation of a purchase which is subsequently made. The policy of the law forbids the trustee from speculating upon the confidence reposed in him; and by removing temptation makes him incapable of doing so ; and equity can never enforce a contract, denounced by the policy of the law, the more especially when the public interest does not demand relief.

In treating of agreements in fraud of the policy of the law, Mr. Justice Story, in his Treatise on Equity, says: “ In general, (for it is not universally true,) where parties are concerned in illegal agreements or other transactions, whether they are mala prohibila, or mala in se, Courts of Equity, following the rule of law, as to participators in a common crime, will not, at present, interpose to grant any relief — upon the known maxim in pari delicto potior est conditio de-fendentis et possidentis.” The exceptions to the general rule, are found to be cases where the public interest would be promoted by granting relief: and then it is given to the public through the party. As coming within the exception, may he enumerated contracts violative of the laws to prevent usury, gaming, &c. There, the policy of the State demands relief. The learned author just cited remarks — “ The old cases often gave relief, both at Law and in Equity, where the party would otherwise derive an advantage from his iniquity: but the modern doctrine has adopted a more severely just, and probably politic and moral rule, which is to leave the parties where it finds them, giving no relief, and no countenance to claims of this sort.” To the same • effect are Carrington vs Caller, and Holder vs Meggi 4. son.

Influenced.by these considerations, we are brought to the conclusion that it is incompetent for equity to enforce the performance of the agreement set up by the bill, and must therefore leave the plaintiff, in the language of a very great Judge, to a sole reliance upon personal honor.”

In attaining this conclusion, we have not thought it necessary to consider the discretionary power exercised by Courts of Equity, upon applications for the specific performance of contracts, but have placed our decision upon the ground of the invalidity of the agreement.

In the case of Brannan, et al. vs Oliver, in some of the reasoning employed in favor of the right of an administrator to purchase at a sale of the intestate’s •estate, the Court may seem to countenance the right of every description of trustee to purchase the property of his cestui que trusty when sold under an order of Court, and at public auction. But the grave-men of the argument employed, is this, that it was a practice of long continuance in this State, for executors and administrators to purchase at sales of the estates they represented, and that incalculable injury would result from a decision in opposition to that practice. And further, that the widow or some near relative was most usually the personal representative, and solicitous to purchase some portion of the estate, and unless allowed to do so directly, would procure some third person to become the purchaser, under such circumstances as to prevent detection, and procure through him the ownership. Neither of which reasons, have any application to one circumstanced as the plaintiff. So much as was said in that case, touching sales at auction under the order and supervision of a Court, was intended not to justify a departure from the strict rule ; but. to shew that a departure,to which we were forced, in order to prevent tne unsettling of titles and consequent litigation, was the less to be regretted in such a case; the opportunities for the detection of fraud being more favorable than where the sale was private. It may be very well to remark further in regard to that case, that it does not determine the right of all administrators and executors to purchase, hut only such as have an interest coupled with the trust. It is not pretended that the plaintiffs’ was more than a naked trust

The decree is affirmed.

GOLDTHWAITE, J., not sitting,

       3 Ves. jr. 740.

       5 Ves. jr. 678.

       6^. 631.

       lJohn.Ch Rep. 27.

       3Bro.C.G 117.

       T4Ves. jr. 411.

       6 ib. 707

       6 ib. 625

       ib.630n

       8ib.337

       Hill Johns. Ch.R.394 collected. Vide also, 1 Story’s Equity, 317, 18, and 19, and the cases there

       8Bro Pari 42 ’T Ed. ’

      ti Har.& ‘ ’ ’

      1 lív. on Agen. 425 §ioves.ji-381‘

         ñs Ves.jr. ,345‘

      530Vesdr’

       5ib. eso

      kipmjs forred ,0-

      1 story’s and ’8, and CctSGS cited in notes,

        Í2 Stewart. 175.

      2 Stewart 47'