77 N.J. Eq. 555 | N.J. | 1910
The opinion of the court was delivered b3r
It would be unnecessary to add anything to the opinion of the vice-chancellor in the present case but for the strenuous contention on the part of the appellants that he erred in charging them with the amount for which the property was sold at the sheriff’s sale. It is contended that if O’Reilly and McKenna were trustees, it was their duty to protect Mrs.' Throckmorten’s property by buying it in at the sheriff’s sale, and that they are accountable not for the $16,300 at which it was struck off, but only for $14,500, the amount for which the property was subsequently sold. This would undoubtedly be the ease if they had purchased the property at the sheriff’s sale in execution of an ordinary trust, but the difficulty with that argument in the present case is that by their own conduct they repudiated the idea that there was a trust and insisted that Reilly was an actual purchaser and that Mrs. Throckmorten had no interest in the property. Reilly was evidently acting for McKenna and O’Reilly, and it would be inconsistent now to permit them to set up that the property was bought in for Mrs. Throckmorten’s benefit. They assumed, through Reilly, to buy it for themselves. The trust, as this court held when the case was formerly before us, arises ex maleficio, and under such circumstances it was the right of the cestui que trust to affirm the sale and seek to recover the purchase-money, as she and her executor have done.
The reasoning of Vice-Chancellor Pitney in the suit against Reilly (68 N. J. Eg. (2 Robb.) 151), is satisfactory, and the same legal rules are applicable in the present suit against Mc-Kenna and O’Reilly.
The decree is therefore affirmed, with costs.
For reversal — None.
