| Cal. | Jul 1, 1856
Mr. Justice Terry concurred.
It is a familiar principle in law, that one who is a trustee, or who stands in a situation of trust and confidence, cannot purchase or deal with the subject of the trust, neither can he purchase debts due, to be paid out of the trust estate, nor place himself in an attitude antagonistic to the trust. The purchase by the defendant of the one thousand dollars indebtedness of Page, Bacon & Co., and the judgment obtained in the name of S. C. Hastings, if not a fraud in fact, was in violation of his duties as a trustee of said firm, and it makes no difference in this respect, whether the instrument conveying the property to himself and Parrott was a deed of trust or mortgage, or whether the same was void or not.
I am satisfied that the instrument was a deed of trust, hut if a mortgage, the defendant was a special trustee, who took the premises charged with the payment of whatever loss himself and others might sustain, by reason of having guarantied the certificates of Page, Bacon & Co. Having accepted this trust, and entered into possession of the property, and received the rents and profits, the law will not allow him to dispute its validity, particularly for his own benefit. The judgment itself is in violation of the law, and is a nullity; and Page, Bacon & Co. have a perfect right to protect the fund or property in the hands of their trustees, inasmuch as they are ultimately liable to their creditors, and are interested in seeing the property applied to the liquidation of their indebtedness.
Judgment affirmed.