3 Paige Ch. 178 | New York Court of Chancery | 1831
The correction of the decree as to the Christian name of the appraiser is a mere matter of form. It may be inserted in the original decree in the register’s minutes ; and any copies which have been furnished may be amended accordingly.
The application to permit the trustee to bid and to become a purchaser on his own account, is one which deserves a more serious consideration. It is the settled law of the court, that the trustee for a sale cannot become a purchaser on his own account, or as the agent of another, or through the agency of another. In this case it cannot be necessary to permit the trustee to bid for the purpose of protecting his own interest, as the property must in any event be more than sufficient to reimburse him for all his advances and claims, which are entitled to a priority in payment. If a trustee can in no case be permitted to purchase without the consent of the cestui que trust, except by permission of the court, what facts are presented here to justify the court in departing from the general rule, by giving such permission 1 Where the chancellor can see that the trustee has a personal interest in.procuring a fair price for the property, which interest may probably be sacrificed if he is not permitted to bid, it is very much a matter of course to divest him of the character of trustee, to enable him to protect his own rights. In such cases a master or another trustee is
, Under such circumstances the creditors are entitled to the full benefit of his information as to the value of every part and parcel of the property; and as to the manner in which it should be put up and sold. It will therefore be his duty to give to them or their agents if any of them attend the sale, as well
I am aware of the difficulties of obtaining a full price for the property on this first sale, in consequence of the absence of the principal creditors. But I cannot see how those difficulties are to be remedied by permitting the trustee to bid it in at his own prices on his own account; whether the sale is made by himself, or by a master -who can know but little of the value of the property. The consent of these complainants who sue in behalf of themselves and the other creditors, in this stage of the suit, would not justify the court in making an order which might injuriously affect the interests of those who have not yet had an opportunity to come in and make themselves parties under the decree. After the time has expired for the creditors to come in, the trustee can be permitted to bid, on obtaining the written consent of all the parties interested in the sale. But until that time, and without such permission, such privilege cannot be granted.
See Ex parte Rolfe & Milne, (1 Deac. & Chit. Rep, 77.)