delivered the opinion of the court.
Thеre are no questions of law or fact of any difficulty in this case. A brief opinion will be sufficient to dispose of it.
An examination of the rеcord has satisfied us that the consideration for the conveyances to the appellee proceeded wholly from the appellant; that the, appellee took the titlеs in trust; that he was a trustee; that the appellant was the cestui que trust ; and that thе appellee has stood in that relation ever since thе conveyances were executed .to him, and that he still holds the premises in that capacity. This is the whole case. The claim of the appellee that he- took the titles in trust for the grantors is absurd upon its face, and contradicted by the pr.oofs. If the grаntors intended to deny the right of the company to demand the pеrformance of the contract, why did they convey at all? Potior est conditio defendentis. Why. interpose a trustee? and especially why recite iii the deeds-that the condition of the subscriptions had been fulfilled ?
[ These suggestions set in a strong light the character of this pretence. ' .
But it is . said the conveyances grew out of ¿n illegal transaction between the- сompany and the grantors. To .this there are several, answers. The grantors have' voluntarily executed the contract. They havе not intervened, and do not complain.
The conveyances to the trustee-were, in the view of the law, the same thing as if they had been to the company. The transaction between the parties in interest was,thus finally closed. There will be.neither more nor less of illegality between the original parties, whether the trustee does or does not respond to his obligation to the company. In thаt obligation there is no pre
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tence for saying there is any taint of any kind; and it is that obligation alone which it is sought to enforce by this prоceeding. All the deeds but one designate the appelleе as “ trustee,” without setting. forth for whom or for what purpose'. Parol .еvidence was admissible to show these things. The designation alone was sufficient to devolve the duty of inquiry upon any third person dealing with .the рroperty.
Duncan
v. Jaudon,
.The office of a trustee is important to the community аt large, and frequently, most so to those least able to take сare of themselves. It is .one of confidence. The law regаrds the incumbent with jealous scrutiny, and frowns sternly at the slightest, attempt to pervert his powers and duties for his own benefit. The tenant cannot deny the title of his landlord. A multa fortiori ought not the trustee to be permitted to deny thаt of his beneficiary.
The position assumed by the trustee in this case is nоt-unlike that of one who, having deprived the owner of the possеssion of his property, when called to account'civilly or criminally, should, insist that the owner’s title was fatally tainted with fraud, and that hence the offender had the right .to “ take and carry away,” and keeр and enjoy, the property himself with impunity.
. The conduct of the appellee, stripped of' the verbiage with which -it has been surrounded, and viewed in its nakedness,' strongly offends the moral sense of -the judicial mind.
The decree will be reversed, and the cause remanded with 'dire-.tions to enter a decree in favor of the complainant; and it is So ordered.