Cunningham's Adm'r v. Rogers, 14 Ala. 147

Cunningham's Adm'r v. Rogers

14 Ala. 147 | Ala. | 1848

DARGAJí, J.'

The rule is settled on principles which we approve, that a trustee cannot, by buying the trust estate, make profit to himself. See 1 Story’s Eq. 317, and the cases there cited. Indeed, the authorities go to the extent, that when a trustee becomes the purchaser at his own sale, the cestui que trust may still look upon the property as bound by the trust, and may apply, within a reasonable time, to have a re-sale, without showing any injury to his rights, or benefit to the trustee. That is, he may treat the purchase of his trustee, as a sale, or not, at his option. See 5 Vesey, 678 ; 1 Story’s Eq. 318; 2 Johns. Chan. Rep. 252; Saltmarsh v. Beene, 4 Porter’s Rep. 283. And where the trustee is shown to have made profits by a re-sale of the trust property, in a short time after his purchase, and without delay the cestui que trust applies to have the benefit of the re-sale, the rule is invariable, that the purchase by the trustee will be set aside, and the cestui que trust will be entitled to the benefit of the *150re-sale. See 1 Story’s Equity, 317, and the cases there referred to.

It is true, that in the case of Brannan v. Oliver, 2 Stewart, 47, this court held, that a purchase by an administrator having an interest at his own sale, would be supported, if no unfairness appear; and in 6 Ala. 896, it is said, that an administrator, at his own sale, may purchase, if it be fairly conducted, and it cannot be treated as a nullity. But these authorities fall short of the facts of this case. Here, the respondent was a trustee to sell property to pay a debt due from, complainant to the respondent. The respondent, the trustee, became the purchaser at his own sale, and in a short time thereafter re-sold the property, at the profit of $1,000. These facts, within themselves, must set aside the purchase of the trustee at his own sale; he must be held to be a trustee at the time of the re-sale, and the complainant entitled to the benefit of it, arid hence there is no error in estimating the yalue of the negroes at $2,800, for the answer shows this is the amount received by the defendant on the re-sale.

2. It is said, however, that the original bill, without the aid of the supplemental bill, would have been dismissed at the. final .hearing, and that the decree is erroneous, because it can be sustained on the supplemental matter only! The rule is, that a supplemental bill, when properly before the court, may be considered as part of the original bill, and the whole is to be considered as one bill; and hence, if the complainant is entitled to relief upon his whole bill, it should be decreed to him. See 13 Conn. R. 456; Dan. Ch. Prac. 1654.

There is no objection, that the supplemental matter is not properly before the court, and it must be treated as part of the bill; and thus considered, the bill has equity, and the answer shows the measure of relief that should be granted, independent of the testimony taken by depositions.

The decree of the chancellor is affirmed.

•Chilton, J., not sitting.