8 Cow. 361 | Court for the Trial of Impeachments and Correction of Errors | 1826
Henry Cunningham, the father of the respondent, died intestate in the year 1798, leaving three infant children, and a valuable estate in lands, consisting of two military lots containing 1,200 acres, and a farm in
It may be said that a sale of the whole, or a portion of patrimony of infants, is sometimes necessary to provide for their education and support. Be it so; a partition is not required. During infancy, the rents and profits of the estate of the ancestor are to be applied for the benefit of the infants generally. They are entitled to participate equally; and if, on application to the proper forum, a portion should be deemed necessary to be sold for maintenance, it would not be the share of one of the infants, but so much of their undivided interest as the occasion required; so that no advantage can be derived from the partition of their estates. The whole history of the law shows with what jealous care the rights of infants are watched and guarded. On application to the chancellor, affecting the disposition of their property, every check that prudence can suggest, is inter? posed for their protection. In no case can their real estate be aliened, without some pressing necessity. The presumption derived from this source is very strong, that the legislature did not intend to depart from this salutary course, when the act for the partition of lands was passed; and although the words of *the act are general, its spirit and the mischief to be remedied are opposed to the construction that infants are included.
This view of the subject acquires additional strength, when it is considered that there is no saving or qualification in respect to infants. The proceedings become final and conclusive, unless reversed for error. Besides, the power of selling, instead of dividing, is given whenever it shall appear by proof, that a partition cannot be made without prejudice to the owners. To see how easily such a power may be abused, it is only necessary to look into this cause, where it was pretended that two military lots of 600 acres each, could not be divided among three proprietors, without great prejudice; and on that allegation the whole was sold.
For the purpose of placing this question in a still clearer point of light, I will briefly notice the law relating to parti
At the common law, co-parceners were compelled to make partition, which might be done by writ de partitions faciendo,, or by proceedings in chancery. By the former mode, if the tenants appeared, the partition was conclusive, although all the parties in interest were infants or feme coverts ; but the appearance could not be compelled with certainty ; for process was by summons, attachment and distress infinite. If the proceedings were instituted in chancery, the partition might be made ; but infants and feme coverts were allowed, after disability removed, to question the justice and equality oí the partition. An infant plaintiff, however, is always concluded.
How this was
Joint tenants and tenants in common were not, at the common law, compellable to make partition. The statute, (31 Hen. 8.) authorized it to be made in the same manner as • • • between co-parceners; but did not provide any additional remedy in case of non-appearance. To remove this difficulty, the 8 & 9 Wm. 3 was enacted, and prescribed a ^course of proceeding variant from the common law process; which being had, an appearance might be entered, and the partition perfected; but this statute contained a proviso, that in all cases where judgment was rendered by default against infants or feme coverts, one year should be allowed after the disability removed to object to the partition. Thus stood the law in England, at our revolution; and it continued to be the law0here, until the 16th of March, 1785, when the first partition act was passed. This is evident from the fact that the law relating to partition in England was the law of the colony of Hew York, and by the 35th section of the constitution, it is declared, that the common law and statute law of England, that formed the law of the colony on the 19th of April, 1775, should continue to be the law of this state, subject to alterations by the legislature.
History of the ytio^Engiish and Hew Y ork»
It is then perceived that effectual and conclusive parti
Immediately after the revolutionary war, when the greater part of this state was a wilderness, and its cultivation *andimprovement an object of the greatest importance, the legislature applied a remedy to the extent that the exigency required. The recital to the act of March 16th, 1785, states, that tracts of land held by joint tenants, tenants in common and co-parceners, cannot by law be divided by reason of the absence, infancy or coverture of some of the proprietors. It was so. I have shown that absence was an insuperable barrier; for, in that case, notice could not be served; and as to infants, it depended on their volition, whether to suffer judgment against them by default or not It was therefore correctly said in the recital, that in case of infancy and coverture, land cannot be divided, that is, with certainty and conclusively, when the validity of the partition depended on a contingency.
The preamble is the key to discover the intent of the statute. Why is it confined to the infancy of some of the proprietors, instead of saying where all or any are infants ?
The statute of 1801 may, and I think ought to be considered, as a substitution merely for the former act. It is ^founded on the same reasons, and has in view the same ends, variant from the former act, principally in the form of proceeding; the remedy'by petition and notice, to which the parties might plead, being a manifest improvement upon the former system.
It is an established rule, that all acts in pari materia are to be' taken together. So, also, if anything contained in a subsequent' statute, be within the reason of a former statute, it shall-be taken-to be within its meaning. (6 Bac. 382; Lord Ray. 1028.)
It cannot be denied, that the same reason existed for the exception, when all were infants, at" the time of passing the last act, as at any former period. It would, therefore, be doing violence to well settled rules of construction, to say, that because there is not an express exception in favor of-infants, therefore they shall be included within the general Words.
In the cause-of Jackson v. Woolsey, (11 John. 446,) the
ingsTin^parfr tiou were conmnonjudice.
however, it be admitted that the statute applies to this case> next inquiry is, whether the proceedings under it were not irregular, and therefore void.
Whether proregular3 Were
*The act of March 8, 1811, (sess. 34, ch. 43,) declares, that if the commissioners shall report that the lands are so circumstanced that a partition cannot be made without great Prejudice to the owners; and if it shall appear by satisfactory proof to the court, to which such report shall be made, that the lands cannot be partitioned among the owners without great prejudice to their interests, the court shall order the commissioners to sell. Before the passing of this act, no such authority was given. The power of the court was restricted and limited. Satisfactory proof, then, must be adduced. In the absence of proof, the question is not before the court. The distinction here arises between proceedings void and voidable. If proof, evidently defective, had been exhibited, and the court'had passed upon it and deemed it sufficient, that would have been error; but that cause would not have defeated a purchase, in other respects valid. When the court undertake to dispense with a condition precedent, upon which solely their authority is founded, then the act become void; for the statute must be con-
Whether proceedings were fraudulent, or Wm. Erwin a trustee.
With respect to fraud, the distinction between legal and equitable jurisdiction, is tins: that at law it must be proved, not presumed; so that equitable jurisdiction may be exercised, *when a court of law could not enter into the question. (18 Ves. 483.) A variety of cases have been decided, and relief afforded in equity, where, From the nature of the transaction, and the situation of the parties, fraud and imposition might be presumed. (3 P. Wm. 139 ; Pow. on Con. 31.) Thus, in Chesterfield v. Jansen, (2 Ves. 155,) lord Hardewicke describes one species of fraud, which may be presumed, from the circumstances and condition of the parties contracting; and this, he says, goes farther than the rule at law. Let these principles be applied to the case before us. By the pleadings, it does not appear, nor is it any where alleged, that William Erwin had ever been appointed guardian of these infants, until May, 1812, when application was made for partition. It is true, the notice served in March, 1812, is directed to William Erwin as guardian, but that fact is not put in issue. If he was not guardian at that time, he was a stranger and intruder. If he was guardian, he violated his trust, as will be shown in the sequel. The father of the respondent left to his three children a valuable real estate, not necessary to be sold for the payment of debts, or for their education or mainte
Evidence to warrant inference of fraud.
If the proceedings had been- thus" far regular and fair, Erwin was a trustee,- and could not profit by the purchase rr — —, . * , of the lot of 600 acres. He gave bond for the faithful discharge of his trusts, and received the money arising the sales. Erwin must be considered as having caused the lands -to be sold,-and the cestuiqm trust' is- entitled, as of course, to have the purchase set aside. It is true, as a general proposition, subject to some exceptions, that trustees, *agents, commissioners and-assignees -of" bankrupts, solicitors to the commission and auctioneers,* are incapable of purchasing. The ground on which the disability - or disqualification* rests, is, that a-person cannot be both judge and.party. “Ho man can serve two-masters.” He that is intrusted with the interest* of others, cannot be allowed to make the business an object of interest to himself; because, from the frailty, of human- nature, one who has the power will be too-reádily seized-with-the-inclination to use the opportunity for serving his own interest at the expense of those for whom he is intrusted. A purchase by a trustee, whether for adults or infants, cannot be supported, although the estate be-sold at auction, or before -a master under a decree for sale. . (Yorkbuildings v. Mackenzie; 6 Bro. Par. Ca. 42 ; 5 Vesey, Jun. 681; 1 Mad. 90; Sugden's Law of Vendors, 422, 427, and the' cases"' there cited.) A very. elaborate and learned review of nearly all the cases, will be found- in Davoue v. Fanning, (2 John. Ch. 252,) where the general" principle is examined and illustrated" with great perspicuity, and to an -extent which would seem to - have exhausted the subject.
Erwin was a trustee, and the sale should be set aside for cause-
ag^purchases by trustees, '
How the appellants are affected by the fraud of Wm. Erwin, or his relation as a trustee.
If a purchaser rests his claim on the fact of being an innocent bona fide purchaser, he must deny -notice, even not charged, positively, and not evasively, He must deny fully, and in the most precise terms, every circumstance from which notice could be inferred. (Pre. in Ch. 226; 2 P. Wms. 491; 1 John. Ch. Rep. 302 : 3 id. 345.)
To make purchase, nodenie™USt oí tively,’ even charged, "so of every drcumstanco from which it can be inferred.
The appelthem*’ selves within
waa not put.missue. Evidence concerning it, ¡nadmissibi&a3
„ But it is contended, the respondent and Margaret Cunningham have confirmed the acts of Erwin, and cannot be permitted to impeach their validity ?
As to the confirmationo, Erwin’s acts.
TTT- i , . , . With respect to .the respondent, it is only necessary to observe, that the assignment of the mortgage to her, against Mattison, was taken while ignorant of her rights ; and was received only as a collateral security. Her case, therefore,
A void -purpable of confirmation.
From the preceding view, it will.be seen thát the claim of the appellants to attach their mortgages and conveyances on two thirds of-the lot, has no foundation to rest on. .The appellants, -in judgment of "law, acquired-no ¡title to any part of the'lot. The respondent here is acting on the defensive. It is "enough that she has shown the absolute nullity of the appellant’s claim. The question, whether the court will decree that the'whole lot isdiable toiher demand, or one-third only, does not now arise. 'When the -respondent presents that question fin the character of a .plaintiff, it will receive a-decision.
F ara 1 °f opinion that -the decree of his honor, the ¡chancellor, be affirmed.
For affirm•nce.
■Sutherland, J., - expressed his concurrence imthe -result of this opinion.
'Savage, Gh. J., not having "heard 'the argumetit, -gave no opinion.
The facts submitted to us in this case, show, without-contradiction, that an infant, by the conduct of a person- who procured himself to be made her guardian, has been deprived of the whole of her inheritance: that this has'been effected through the instrumentality of a court of law; and we are now to decide, whether the legal forms by which it has been accomplished, preclude redress.
iwai T;ew oftiie ease-
It is"impossible to Consider' this question, without» strong anxiety to rescue- the administration of justice from the reproach which it Would seem to deserve,' if.we should be obliged to acknowledge that our courts may be rendered *the instruments of such injustice; and we must feel" the greater regret, should we be obliged to decide that-the wrong is without remedy, when we reflect that the injury arises out of the- sacred relation of guardian and ward, which .the courts themselves create.
But it is the duty of a judge to control his- feelings. He is to administer law as he finds it established, and not as he may wish it were, or thinks it ought to be, in order to' meet- particular exigencies or hardships. .
A judge ought jaw- without regard to parcies.
It is to be considered, also, that, in this case,, the-question is not nowbetween the guardian and his ward. Bights . . . , of third persons intervene. ' These persons insist,, that however exceptionable the conduct of the guardian may have been, their title is valid; because- they are-purchasers from persons who had no notice that he who conveyed to them was guardian when he acquired his title. If this be so, the appellants must be-protecte'd, although it be at the expense of another innocent party, -
. Question n,ffects third Pe{sons, appellants, claiming g™™ alleged to have
if so, the apbe protected!"1
In my view of this case, there are many points which have been argued at our bar with great zeal-and ability, that I do not think it necessary we should decide. I shall not consider whether there be evidence that" the :proceedings of the supreme court were fraudulently conducted by the parties to'the partition suit. Neither doesdt-appear to me to be necessary to decide on what day of the week the order for sale was entered, nor what would be the cansequence, if it were entered on a Sunday. :My decision will rest on the single fact that the guardian was the purchaser,
Many points examine,
Decision rests chaser.
Otherwise not^Te °°d!d feated.
But the purchaser under the partition sale was guardian'; and let us, for a moment, suppose that he was the only party in interest before the court. Then the question would be, whether a guardian who purchases lands of his ward, under a sale to which he assents, can hold the property against the will or claim of his ward.
There is no principle better settled, nor one more ealeu¡aj¡ed to defeat that cupidity which is so apt to seduce men r 1 , from a disinterested and honest course, than that a trustee shall never be allowed to claim and to hold as a purchaser, property which was the object of his trust, against the will Q|. tbe cestui yUe ¿rusi_ Indeed, the just jealousy of the law carries the rule further. It will not permit an agent or attorneyto hold, against the will'of his principal or employer, anything which was in litigation, of which litigation he had ,, the management.
A trustee cannot purchase and hold the subject of gainsfthe will of his^ cestui gw rus.
agent oratto¡> ney, as to any thing which he litigates.
The sale to the trustee or agent is not absolutely void; but may always be avoided by the cestui que trust, or by the principal, unless long acquiescence, with knowledge of their rights, warrants a presumption that they approved and ratified the sale. • .
It is upon this ground that I take the distinction-between e^ect the proceeding of the supreme court as to .the order for partition and sale, and the order confirming the sale to William Erwin, who was the guardian. The partition and order for sale may be conclusive, but the con
Rule cHaquatee’A& topuiv chase, extends ad ufan under
He who undertakes to act for another, shall not, in the same matter, (says one of the books,) be permitted to act for himself. How, throughout the proceedings in partition, the guardian undertakes to act solely with a view to the interest of his ward. If he may acquire an indefeasible title by a sale, he may be acting for himself. He may. be endeavoring so to shape the proceedings, as that he may make a bargain out of the estate. Upon the report of the sale," the court is to look to the guardian for information,
. In.Scotland, whenever there is a judicial.=sale, *a..person who is* -called; an agent, :is.-.appointed* by the -, court, torascertain, and to; inform thern as. to the1 value of the property tc be sold. "In the ease of McKenzie, (6 Ves. 630, note (b) the British house of:lords set aside,;after the .lapse.of-a. *great number of years,, a purchase under an. order of1, sale made*by the -court: ofsession, by one of. these.-agents ; the lord.chancellor saying, that , he who was interested by the court to- instruct them how. to. sell, should not be permitted to acquire-a title .under the-authority- ef1 the court.
"We-are,* however, referred to:a< direct-decision,-.as is.said, of the . supreme. court,: on the very, poiñt now.under- consideration. (Jackson v. Woolsey, 11 John. 446.) ..If.I understand that. case, it does not ; at, all impugn the. principles, which the other cases, as it appears*to. me, ¡so. firmly, establish; ,Mt the report of that Lease ¡is not -very, perspicuous,' and I am- not very certain that-1 understand-it. 'We have, in the.report, the title to-the proceedings". in .partition which were in* question. ; It is stated that the.infants: appeared by William Giilspie, as- their--guardian. The saléis represented to-have been: to Matthew Gillespie; and yet'it is certain,- that-both- the counsel *and court-assume ;as-a fact, that the. sale was to the guardian. Again *r I do; not understand, that in this suit of* Jackson v. Woolsey, the wards were endeavoring-to set aside a sale to, their-'guardian. *Thewards were the heirs of Jane Gillespie. The sale -was" the .estate of the infants,- which they had inherited 'from1 her;; and - nnder a commissioner’s deed consequent". on-thafc sale,' the defendant, Woolsey,'- 'claimed. The lessors of ¡the .plaintiff were the heirs- of James -Neely. Now,- if * in Jackson v. Woolsey, it was not the-wards who were endeavoring to-set- aside the sale to-their, guardian, then thedoctrine of-that ease is entirely coincident with, other-cases on the-subject: for it is-admitted,: that a-sale-to a - guardian, or trustee is not-absolutely'void,-but is1 only
*But if we .are -to understand, the supreme court as deciding, as a broad and general principle, that “ the sale to the guardian conveyed .a title to him - which could not be impeached by the- ward,-.because -there was.no fraud, and because the sale was public-to the highest bidder, and made by .the commissioners, according.to the order of the court,” then I feel-myself , constrained, to dissent from-that decision.
I hope, that in any thing I shall ever say or do, I shall-manifest.the unfeigned deference I feel for the members of the court-which pronounced the- decision in the case mentioned. But we are to take care that our respect for any other tribunal, does not lead us to forget that this is a court of appeal, and . that it would be a mere mockery if any other adjudications than those pronounced here, were to have more influence than belongs to the abilities, learning and wisdom of those to whose judgments we are' referred.
The question, whether a, trustee, guardian or agent can, by; purchase, acquire an indefeasible title to property to which his trust, guardianship, or agency relates, is one upon .which we. are. not distracted with a contrariety of opinions.. I have looked with diligence, for all the cases reported which touch this question. Most- of those decided in England, are referred to by Maddoek, in his .chapter on -frauds. (1 Mad. 111, last ed.) I think I may venture to say.there is not one single case, either in the English or’ our own books, (unless Jackson v. Woolsey be an exception,) which does, not support the general rule, as I have above stated it to be.
But it is said it may be -very, injurious to an infant, if the
a trustee or guardian may purchase under a special cery?e°fOrUs chase° may be confirmed in 1 way"
As has been said, the ward may confirm the sale, or lose the right to question it, if there be no objection made t0 ^ jn a reasonable time. I will not stop to inquire . . r i whether there was any acquiescence of the ward m this eag& moment she came of age, she complained of the injustice of her guardian’s proceedings; and it would be cruel to construe her acceptance of the mortgage from Mattison, the only fragment of her patrimony which remained, as a confirmation of her guardian’s purchase.
The ward thef sato” by delay; but has not done so m this case, by May or other-
If, then, the guardian was now the party in interest be- ^ us anq he alone was to be affected by our decision, I hope we should not hesitate for a moment to say, that his title against the claim of his ward was good for nothing. I hope we shall adhere, with unrelenting severity, to the rule that a guardian cannot acquire, by purchase, (unless by the means I have before mentioned,) an indefeasible title to property, the care of which is the purpose of his office.
The guardian’s title in between him wat ^good afor nothing.
But the appellants contend that they are purchasers; that is to say, that as to the mortgage given by Erwin to "Wood and Wardell, they hold that mortgage as théir as- . „ 7 • , „ signees. If they are purchasers, they can be m no better
not^aily^et UP want of notice in their answer, they ^““defeTvby testimony.
If takes a defective title bad in the hands of the purchaser.
him_ 0r those that the purwithout notice!
If it be said, that the appellants might not know whether Wood and Wardell had notice or not, they might, notwithstanding, set up by plea, if not by answer, want of notice as the ground of defence. They might, at least, have stated unequivocally, that they did not know that Wood and Wardell had this notice. But instead of this, they ’ ^ say in their answer, “ that, whether or not Wood and Wardell, at the time they received the mortgage from Erwin, had notice of all the charges, circumstances, and allegations contained in the said bill of complaint, they cannot set forth from knowledge or information.” “ If a purchaser,” says chancellor Kent, in the case of Denning v.
This.being.my opinion on this point, it da unnecessary ^ exam}ne testimony as to Wood-and Wardell being informed, when- they took the mortgage from Erwin, -that his title to the mortgaged premises came from.his.ward. Mr. Wood’s testimony on this point, I think, is quite equivocal. He denies that Wood and Wardell had knowledge that -Erwin had purchased under the partition sale. But he does not say that they had no information on- this subject. He adopts, as to this point, a circumlocution, which leaves -us in much doubt as to what we are to understand from-his testimony. “Heither be-nor-Wardell,” he says, “were-informed of the manner, or from whence Erwin had acquired possession of the land, nor- by what conveyance, or by what authority he claimed title to the same.” But then immediately follows a part of. the testimony of Wood, which, is calculated to create some doubts- whether he means to deny that he had any information • when he took the mortgage from Erwin, that Erwin was mortgaging property which had belonged:to his ward. Wood says, “.that.at about the time of giving the mortgage, Erwin stated that he was guardian to some children; but he (Wood) did not recollect that the respondent’s name was mentioned.”' Then comes this very qualifying. part of' Wood’s testimony, .to wit, “ that he had-but a faint recollection of the conversation that passed between him and Erwin-on the subject.”
I have referred to this part of the testimony, because I think-it illustrates-the good sense of the rule, that a party who means to rely., on want of-notice, either to himself or
As For these reasons, I think we must consider that Wood and Warded had notice of the nature of Erwin’s title, to the appellants, if that be of any importance, they unequivocally admit the fudest notice to themselves when, they took the assignment. Though this may not affect the law of the case, yet when* we add to this admission, that it appears they also1 knew that Erwin- was old, and poor, and unable to make bis ward recompense for the inheritance of which he was despoiling her, and that the sale to Erwin was' for greatly less than the property was- worth, there must be less reluctance in giving a decision which will defeat the claim of the appellants.
that the assignors had no-Inference ¡,
I shad not extend the reasons for the opinion 1 shad give in this case, by any observations as to the mortgage toGallatian. The principles which I have adopted as the: mortgage of Wood and: Warded, apply to the other.
Whether the appellants, having taken their security fon a precedent debt, and whether, as assignees of a mortgage, they can be considered as purchasers, are questions which I do not think it necessary to discuss.
Hor do I at ad enter into the inquiry, whether there be proof that there was fraud in conducting the.- proceedings in partition. Consistently with my opinion, it' maybe . , , . sumed, that there was the utmostgood faith mail the parties to that suit. I wish to establish as a principle, and mean to do it, so far as my opinion can establish anything, that if a guardian purchases the estate of his ward, with
The only matter that this court can decide on these original and cross-bills is, whether the appellants are entitled to foreclose the mortgage to Wood and Wardell, and the mortgage to Gallaban, according to the prayer of the original bill. We can say nothing as to the shares of Margaret and John Cunningham, because they are not parties to the record. Nor can we say any thing as to the new title set up by John Erwin and Abraham Wood, in their answers to the cross bill, under deeds to them from William Erwin, in 1818. Neither was it in the power of the court below, nor is it now in our power to say to what relief the respondent is entitled. All we can do is, to decide whether the "bill which brought her into court, shall be dismissed or not. . ° My opinion is, that it ought to be so.
againat9 the respondent should be dismissed.
^ concur with the chancellor in his decree as to costs, and am also of opinion that the appellants must pay the of the aPPeaL
A d th peiiants 9 coste d court below and of this appeal.
On the above opinions being delivered, the court voted unanimously for affirmance; but they declined embodying in the decree the grounds upon which they were for affirmance, though this was moved.
Whereupon,
It was ordered, adjudged and decreed, that the decree of the court of chancery, against which the appeal was brought, be in all things affirmed; and that the appellants pay to Catharine Cunningham her costs in this suit, to be taxed, &c., with the usual order to remit, &c.
See Waterman’s American Chancery Digest, vol. 3, tit. Partition,
A trustee cannot act for his own benefit in a contract on the subject of- the trust. Thus, a trustee who purchases a mortgage or a judgment, which was a lien on- the -trust estate, at a discount, is not allowed to apply
Where a purchaser seeks relief from a court of equity, because ho has purchased without notice, he must deny notice. So when he sets up by plea or answer a purchase without notice, as a bar to discovery or relief to which a plaintiff is entitled, he must be equally explicit in denying it. But where a plaintiff would convert a purchaser into a trustee, and seeks to charge him because he bought with notice, if the allegation of notice is not admitted, the plaintiff is bound to prove it. McGahee v. Sneed, 1 Dev. & Batt. 333.
The ground on which an original purchaser with notice, is estopped in equity, is that the taking the legal estate alter notice of a prior purchase ot
To make the plea of a bona fide purchaser without notice available, the notice, before the whole of the purchase money was paid and conveyance received, must be positively denied. Nantz v. M'Pherson, 7 Monroe, 599.
Such information as would put a prudent man on the search for the truth, is sufficient notice. Ib.
Want of notice in a purchaser is a matter of defence, which he must aver by way of defence, and establish by proof. Galatin v. Erwin, Hopkins, 48.
He must also deny all knowledge of facts charged from which notice may he inferred. And the denial must be full, positive, and precise. Ib.
If a vendee relies on want of notice in another, he must still aver the fact by plea or otherwise. Ib.
A defendant must deny ail notice and every circumstance from which notice can be inferred, otherwise he will not be deemed a bona fide purchaser. Pillow's heirs v. Shannon's heirs, 3 Yerger, 608.
In order to protect himself as a purchaser, bona fide, the defendant must leny that he had notice of the complainant’s equity, previously to the execution of the deed to him, and payment of the purchase money; and if he had notice before that time, he is bound by it. Ib.
A person claiming as a bona fide purchaser for a valuable consideration, must deny the fact of notice of a trust, and of every circumstance from which such notice might be inferred. Murray v. Ballou, 1 Johns. Chan. Rep. 566; Heatley v. Finster, 2 Johns. Ch. Rep. 168; Murray v. Finster, 2 Johns. Ch. Rep. 155; Quære. Am. Chan. Dig., p. 491, et seq., Nos. 298, 299, 313, 314, 315 316, 317, 322, 323, 325.
Beside; the case was on the law side. Is not a fair purchase by a trustee, of the subject of his trust, valid and binding at law, even as between him and his cestui que trustt Can it be avoided; except in a court of equity? ’ The court decide, in terms,.that the deed, not being-fraudulent in fact, was valid in law. They do not pretend to say how it would be viewed: in equity,