34 N.C. 69 | N.C. | 1851
The case turns upon the legal effect of the sale and delivery to Lewis Belcher. It must have operated in one of three ways: The slaves were simply "bid in" by Lewis Belcher, acting for the trustee, so that there was no sale and they continued a part of the original trust fund; or they were purchased by him for himself and as agent of the defendant Sugg, so as to vest the title in the three as tenants in common; or they were purchased by him to be held in trust for himself and the defendant and Sugg, the legal title being in himself alone.
The proof was, the slave in controversy and three others, together with other property, had been conveyed by one Robert Belcher to the defendant in trust to sell and pay certain debts in which Lewis Belcher, the defendant, and Sugg were the persons principally interested. Before *61 the sale it was agreed between said Lewis Belcher, the defendant, and Sugg that unless the slaves were run up above certain sums, Lewis Belcher should become the purchaser for the benefit of the three, and either of them was afterwards to make sale of them whenever a favorable opportunity occurred. Accordingly, Lewis Belcher became the purchaser and the slaves were delivered to him. He did not pay or give his note for the amount of his bids; that was left as a matter of future arrangement.
It is obvious that the object of the parties was not simply to "bid in" the slaves and allow them to remain a part of the original trust fund, because there were other persons concerned in that fund, and because, upon this supposition, there was no occasion for a change of possession and no reason why the trustee should deliver the slaves to Lewis Belcher.
It remains to be decided, did the sale and delivery vest the title in the three as tenants in common, or did it vest the title in Lewis Belcher in trust for the three? His Honor, we think, properly (73) adopted the former conclusion. The purchase was made for the benefit of the three, and they were to contribute ratably towards the price. The natural inference, then, is that the title was to be vested in the three unless there was some purpose to be accomplished by vesting the title in one to the exclusion of the others. We can see no such purpose and reason for excluding the defendant and Sugg from the legal ownership.
It is suggested that as a trustee cannot buy at his own sale, there was a necessity for Lewis Belcher to become a trustee for the defendant; and this is a reason, so far as he is concerned, for excluding him from the legal ownership. The position that "a trustee cannot buy at his own sale" must be taken with some qualification. He may buy at his own sale and charge himself with the bid; and the cestuis que trust may, at their election, hold him bound by it, or may repudiate the sale and treat the property as still belonging to the trust fund. This consequence follows, whether the purchase is made by the instrumentality of an agent or that of one who is to hold the title as trustee. This suggestion, then, has no weight; and the fact that the defendant was the person who made the sale favors the one view as much as the other, and we are left to adopt the natural inference that the title was to be in the three in the absence of any reason for vesting it in one to the exclusion of the other two, except as cestui que trust.
It was then insisted that if they were tenants in common the defendant had so converted the slave as to entitle the plaintiffs to recover analiquot part of the value in the same way as if he had destroyed the property. The conversion consisted in this: the defendant, as sheriff, *62 sold the slave under an execution in favor of Sugg, and he was bought by one Armstrong, "a citizen of Edgecombe County."
(74) The rule as between tenants in common is, that one cannot maintain trover unless there be a destruction of the property. The first exception made — if it can be termed an exception — was where a tenant in common of a ship had it repaired, the name changed, and sent it to the East Indies, where he sold it and appropriated the whole price to his own use. This was held to be "tantamount to a destruction," because the cotenants could not follow it. In our State it is held that if a tenant in common takes a slave out of the State to parts unknown and sells him, the cotenants may treat this as a destruction of the property. But the idea that a sale to "a citizen of the county" is "tantamount to a destruction" is now advanced for the first time, and cannot be sustained without putting a tenant in common upon the footing of a mere wrongdoer, with whom there is no privity, for which position there is no authority and no reason.
PER CURIAM. Affirmed.
Cited: Pitt v. Albritton, post, 77; Robinson v. Clark,
