147 Pa. 512 | Pa. | 1892
Opinion by
The question of pleading is not important in the case, because, although complainant failed to prove the main ground of his bill, the express agreement and the purchase with the trust funds, as averred in section eight, yet he set out as a ground of relief in section nine the legal incapacity of Doyle to deal with the title to be produced by the sheriff’s sale, because he was trustee. So far as respondents were concerned-this averment of the bill put them upon notice that the validity of Doyle’s acquisition of this title while he was trustee would be questioned, and, of course, that the burden of proof would be upon them to sustain a purchase which, if valid at all, could only be so under some exception to the rule that a trustee shall not have an advantage to himself to the detriment of the trust estate.
Whether the situation which led to the sheriff’s sale was of the trustee’s own making, or whether he could have prevented the sale, are questions of some difficulty, upon which the auditor of the first account and the master in the present suit differed. It is not necessary for us to consider which is right, nor how far the first finding may be conclusive upon the second. Conceding both points to be decided in appellant’s favor, and that, up to the point of the sale, Doyle, as trustee, was within the exception recognized in Fisk v. Sarber, 6 W. & S. 18, there still remain the circumstances of the sale itself, and Dojde’s subsequent conduct in regard to the title. Though there was no express agreement-to purchase for the trust, there is evidence satisfactory to the master and the court below that Simpson believed such was to be the case, and that the conduct of Doyle aided in producing that belief. The master finds ex
• The question of the statute of limitations does not arise. Under the circumstances found by the master, already quoted, the statute did not begin to run until the filing of the account in March, 1885.
Decrees affirmed at cost of appellants.