2 Blackf. 377 | Ind. | 1830
The heirs of John Holland, deceased, filed their bill in chancery, stating that their father in his life-time, about the 1st of November, 1817, purchased of Robert and Joseph Brackenridge, a tract of land for tbe sum of 2,490 dollars; of which he then paid 600 dollars, and was to pay tbe balance by instalments, for which he executed several notes, bearing interest from the date, the last payment to be made in six years;—that their father died in 1818, and administration of bis estate was committed to Joseph Brackenridge and George L. Murdock;— that the administrators received large sums of money for the personal property, and for debts due to the decedent, which, with the annual profits of the land, would have enabled them to pay off the notes for the purchase-money of the land as they became due; there being no other debts of any conside
Robert Brackenridge pleaded, in bar of the action, the settlement made in the Probate Court by Joseph Brackenridge. To this plea there was a demurrer, which was sustained by the Circuit Court. He then answered; and his answer admits-the sale of the land to Holland, but states that a large quantity of personal property was included in the contract. He states, that he does not know the value of the personal estate, or the manner in which it was administered, but by reference to the account rendered by Joseph Brackenridge in the Probate Court, which he believes to be correct; that the land was sold, by virtue of the order of the Probate Court, at public auction; that the sale was fair; that he and his partner, Joseph Bracken-ridge, became the purchasers at the sum of 1,600 dollars, which,
Murdock answered, and, with some account of his separate administration, denies taking any part in the settlement in the Probate Court; stating that it was made without his knowledge, and that he had no hand in receiving or disbursing any part of the estate set forth in that account. He denies having had any concern in the sale of the land; and states that, being about to leave the state, his co-administrator expressed an opinion that the estate was perfectly solvent, and that he was willing to take back the land in discharge of the debt due from the estate to himself and partner; and that during his absence the land was sold.
We learn from the depositions, that Holland, when he purchased the land, received with it of R. and J. Brackenridge about 500 dollars worth of personal properly, which formed a part of the contract; that 1,600 dollars was a high price for the land, at the time it was purchased by R. and ■/. Brackenridge in 1819; but that no material variation had taken place, in the value of the land, between the years 1817 and 1819. The order of the Probate Court shows, that the Court fixed the terms of credit, the day and place of sale, and ordered their clerk to make out advertisements, &c. The auctioneer testifies that the sale was public, that a large collection of people were present, that the land was cried for a long time, and was bid off by John Shanks for R. and J. Brackenridge. Grandon, one of the firm, to whom R. and J. Brackenridge sold the land, states that it was purchased by them, with other real property, in a contract for merchandise; that the only reason why they purchased the land was, that they had a large quantity of merchandise, and were anxious to dispose of it. Murdock's deposition was taken; in which he makes some charges against his co-administrator of' moneys not accounted for, and repeats the statement in his an
Two leading questions are presented for our determination. The first regards the jurisdiction of a Court of chancery, to inquire into a settlement of an administration account in the Probate Court. The second, the right of an administrator to purchase lands which he, as administrator, is authorised to sell.
The first has been settled, at the present term, in the case of Allen v. Clark. It is there determined, that the settlement in the Probate Court is to be taken as prima facie correct, but is not conclusive; that, on a proper case being made, the account may be re-examined in a Court of chancery. Here, the disposition of the land presents a case, that more particularly requires the interposition of a Court of chancery.
The second question seems also to be settled. A trustee, no matter how or from whom he derives his authority, cannot purchase the trust-estate so as to make a profit to himself. There is no general rule that he shall not be a purchaser; but if he is, his purchase is for the benefit of the cestui que trust. If the trustee to sell becomes a purchaser, however fair the transaction, it is subject to an option in the cestui que trust, if he comes in a reasonable time, to have a re-sale. Campbell v. Walker, 5 Ves. 678. If it is offered for sale a second time, and there is no advance of price, the trustee is held to his purchase. Lister v. Lister, 6 Ves. 631. Where the sale was effected through the medium of a trustee, and he became the purchaser, though without fraud, and by auction, the sale was set aside; the circumstance of its having been by auction made no difference. Sanderson v. Walker, 13 Ves. 600. A trustee is not permitted
This case is not altered, in principle,, by Robert Brackenridge uniting with the administrator in the. purchase, nor by-the land
The most serious difficulty, in this case, is to determine the amount of profits made by R. and J. Brackenridge in selling this land to Piatt, Grandon, and Armstrong. The consideration in the deed is 2,500 dollars, which is 900 dollars more than the
There is so much obscurity in the accounts of both the administrators, as to their separate and joint administration, that we are not able to discover the precise data upon which the Circuit Court predicated its decree; but this is unimportant, as we are fully satisfied that the separate decree against Brackenridge, from which alone it is presumed he appealed, is authorised by the facts in the case, and must oe affirmed.
The decree is affirmed, with 2per cent, damages and costs.
Vide Whelpdale v. Cookson, 1 Ves. sen. 9.—Same case stated more at large, Belt’s Supp. 7. “Although there is no positive rule, that a trustee to sell shall not, In any case, be himself the purchaser, inasmuch as he is not precluded from entering into a new contract with his cestui que trusty yet he is not permitted in any other case to make a profit to himself. Whichcote v. Lawrence, 3 Ves. jun. 740. Upon which see Ld. Eldon C.’s observations, 6 Ves. 626.
The purchase in Coles v. Trecothick, 9 Ves. 234, was supported upon the ground of a distinct and clear contract with the cestui que trusty he having the fullest information, and having the sole management; the trustee being passive as to the latter circumstance. Fox v. Mackreth, 2 Bro. 400, and affirmed on appeal in Dom. Proc. 1791, is considered as a leading case in support of the rule, that a trustee for sale shall not take advantage’of his situation so as to purchase for his own benefit.
To set aside such a purchase, it is not incumbent upon the party to show that the trustee has made an advantage, 8 Ves. 348; but it is in the choice of the cestui que trusts to judge for themselves whether they will take back the property or not, 6. Ves. 627; so that in such a case the trustee can never be allowed to retain an advantage, but may "suffer a loss. Lister v. Lister, 6 Ves. 631.
This/loctrine is not confined to trustees, but extends to assignees under commissions of bankrupt, solicitors, agents, and in short all persons having a confidential character. Ex parte Lacey, 6 Ves. 625.—Ex parte Hughes and. Ex parte Lyon. ib. 617.—Ex parte Attwood and Owen v. Foulkes, cited ib. 630, note b.—Ex parte James, 8 Ves. 337. See M'Ensie v. York Buildings Company, Dom. Proc. cited 6 Ves. 630. The principle being as above, it seems that the sale being by auction makes no difference. See 8 Ves. 348.—Nelthorpe v. Pennyman, 14 Ves. 517. ” Belt’s Supp. 10, 11.