delivered the opinion of the court.
The ■ complainants and defendants are all, the heirs of John Tisdale, senr., who died in Boston, in 1798, ihe owner of a large quantity of lands in West Tennessee. The lands were incumbered at the time of his death with a mortgage in favor of Blake & Green, assigned to Mrs. Mary Gilman, and the title otherwise in dispute. Much legal controversy in relation to it ensued, which was mostly attended to, and conducted to a successful result by James Tisdale, Jr., one of the heirs. The estate being insolvent, with the exception of this property, and most of the heirs otherwise poor and unable, or unwilling, to discharge the mortgage, a decree passed in 1830 for the sale of the land to foreclose the mortgage. To meet this emergency and save the lands, the defendant, Daniel, and his brother-in-law, Horton, borrowed $6000 from one Gummings, for which they gave their bond, with personal surety. With this money, Daniel attended the sale under the decree, and in November, 1830, bought 5000 acres of the land at 70 cents per acre, and at a sale for the balance, in May, 1831, bought 28,580 acres, at nine cents per acre; making in all, 33,580 acres, for $6072. These sales were confirmed, and the title vested in the said Daniel, individually; who constituted the defendant, Loving, his agent, to sell the land as he could. His first sale by Loving, under this authority, was made in 1832, and' up to the filing of this bill he had sold and paid over the proceeds to the said Daniel, to the amount as
The object of this bill is to make Daniel, account, as' trustee, for all the money he may have received, after deducting the amount paid out by him on said note to Cummings, and other expenses, together with a just compensation for his trouble; and to establish the title of complainants as co-heirs to the land still unsold, and held in the name of defendant.
The defence is, 1st: That he purchased the land at a judicial sale for himself, with funds of his own, for which the complainants were in no way liable, after ■they had all failed, and some of them refused to be- • come bound, and consequently he is entitled, individually, to the benefits of his purchase, as the risk, hazard and trouble were all incurred by him. And 2nd, that he is protected by the statute of limitations, and .at all events, by the lapse of time, as it was more than twenty years from his last purchase, and the ves-titure of title before the bill was filed.
1. Can the ground of defence first stated avail him? We think not, for several reasons. He was jointly interested in the land with the complainants as tenant in common, by descent. As such, he will be regarded as acting for all in the removal of an incumbrance, or perfecting the title, unless the contraiy is clearly made
But the purchase in this case was • made under a decree to foreclose the mortgage, made by the ancestor upon the property descended. This, it is insisted, saves the defendant from the operation of the general pervading principle we have laid • down. We are not prepared to admit that there is any such exception, where the decree is made for the satisfaction of an incumbrance, and no provision inserted in the decree, allowing the common owners to become purchasers. But in such a case, we think the law is- otherwise. Any one of the joint owners may purchase, and the sale is good, but the benefits must enure to all and not to Mm alone, unless the others choose to acquiesce in it, either before or after the purchase so as to bind them, and in such a case as this, there can be no difference between a sale under the deed and a decree upon it. Whether the same principle would apply in sales for the general debts of the ancestor, or for partition, need not now be considered.
In the ease under consideration, however, we do not think it important to examine that proposition furthei*, as we regard the defendant in the light of a direct express trustee for the complainants, in .his whole connection with these lands, from and at the time of his purchase to the present time. We think it is clearly established, that he was clothed with that character at
This depends upon a controverted fact in relation to the nature and objects of a writing executed by him and deposited with his brother-in-law, Horton, now deceased, whose children are complainants. Much proof and argument have been directed to this point. The bill charges that the said sum of $6000 was borrowed by defendant and Horton, for the express object of redeeming the land from the mortgage of Mrs. Gilman, for the benefit of all the heirs, and placed for that purpose in the hands of defendant, as agent, whose obligation was executed to that effect, and retained by Horton till 1842, when it was delivered up to defendant, in conformity to some private arrangements between themselves, and destroyed. The answer admits the existence of a paper, but says it only embraced stipulations between Horton and himself, which were complied .with at their settlement in 1842.
“The precise language of this agreement;” (says the answer) “is not recollected by' the defendant, but his best remembrance, is, that he was to give the said Enoch Horton a share, as one of the heirs of James Tisdale, of all such lands as he might purchase.” In the next paragraph, in answer to an allegation and interrogatory in this bill, he adds:
“Something was said in the agreement about the heirs of James Tisdale, but what it was, this defendant cannot recollect, nor has he any opinion or belief as to what interest, if any, was secured to said heirs by said agreement. Of one thing he is very certain, that
“Something was said in it about the heirs of James Tisdale,” but what it was, or what interest, if any, it secured to them, he cannot recollect. Other proof then must be referred to, to ascertain its contents. Samuel T. Tisdale, a son of James Tisdale, jr., proves that he saw it in the hands of Horton in 1832, and that it bound the defendant, “to act as agent in the matter, concerning the Tennessee lands, for the benefit of the heirs of James Tisdale, the elder.” In his deposition, he ex-
This letter was written after the purchase by Daniel in his own name, and to allay the fears that had, it seems, arisen in the mind of James, as to his inten.tions and purposes. The witness had just held a conversation with Horton oú the subject, at the instance of his father, and inspected the instrument, and his recollection was fresh as to its contents, which is strongly corroborative of his present statement of its character.
The deposition of Benjamin Parsons, is conclusive as to the character in which Daniel was acting. The witness was the attorney, and agent, for the Boston creditors, of James Tisdale, the' elder, and visited this State every year from 1830 to 1836, on that business, in connection with these lands. His object was to make them liable for the debts he represented. He says Daniel told him in 1831, that he was acting for all the heirs, and in 1833 that the lands belonged to all the heirs.
This witness is in no way ' impeached, nor is his credit affected by any interest, or connection with the parties, and the facts he states are surely conclusive as to the character in which the defendant was acting, and well comport with the existence and stipulations of the written obligation as described by Samuel T. Tisdale. J
Mr. Fogg, who was the attorney of the heirs, speaking to the same point, says, that he considered Daniel as the “agent of his brothers and sisters, and that his object was to secure himself and Horton for their advances, and to receive a liberal compensation for his services and trouble in coming to this country, and to prevent the creditors of his brother James from taking
It also appears from the evidence of Mr. Fogg, that the title to these lands was at the death of James Tisdale, Sr., mostly, if not entirely, in a -man by the name of Daniel Wheaton, and the object of the protracted and expensive litigation commencing in 1819, and terminating perhaps in 1830, to which James, jr., attended under a power of attorney from the other heirs, was to establish the right of James Tisdale’s heirs to one moiety of it, amounting to about 60,000 acres. This favorable result however, was incumbered with the mortgage aforesaid, to raise the one-half of which, the lands recovered were decreed to be sold in 1830, as before stated. The mortgage had been given by "Wheaton to secure the sum of $8,000, borrowed for the joint adventure, and which was vested in the said lands.
It seems that it was in consequence of the advice of counsel, that the defendant permitted the land to be sold under the decree, ánd became the purchaser, instead of discharging the incumbrance by paying off the decree without a sale, as was his purpose when he came out. This fact of itself is sufficient to show that he procured the funds and came out to relieve the land for the benefit of all, for the joint benefit, and not .to ■become a purchaser on his own account in severalty.
Without further reference to the facts, as developed by the pleadings and proof, it is sufficient to say, that to our minds the conclusion is irresistible, that Daniel undertook to act for the benefit of all the heirs in the writing executed by him, and that his determination to appropriate the large benefits of the operation to himself, was not thought of at the time, or until long af-terwards, and that if the purpose was entertained, it was not disclosed until very recently before the filing of this bill. His own declarations to Kennedy, just before the filing of the bill, were to this effect.
There has been much darkness and obscurity observed in his actions, and more still in his conversations with the heirs. They, or at least most of them, have certainly been induced by him to believe that all things would come out right in the end, and full justice be meted out to them at the proper time. The sales of the lands were still progressing, and the business not yet prepared for final settlement. So, if it were a trust at all, it was a continuing and unclosed one.
But what is the legal consequence of the conclusion at which we have arrived as to the existence of the written obligation by which an express trust was created? But another argument is here made, which is entitled to notice, before we answer that question. It
A princely estate in lands was at stake; it had been rescued from the first hazards to which it was exposed, by the long and laborious personal attention and efforts of James, one of the joint owners, with some pecuniary assistance from Horton, and again it was in danger of being sacrificed for this mortgage debt, amounting to but a very small proportion of its value, and Daniel and Horton by the use of their credit, were enabled and undertook to rescue it, for the common benefit. To evince that purpose, to guard against the accident
Thus circumstanced, then, could he take to himself, individually, the benefits of his purchase, to the exclusion of his co-tenants? Surely not. Nothing is better settled in equity jurisprudence. It is one of the canons of a court of equity, that one who undertakes to act for others, cannot in the same matter act for himself. Where confidence is reposed,, duties and obligations arise which equity will enforce. A trustee cannot throw off the trust at pleasure, to the injury of the eestui que trust. He will not be allowed to mix up his own interests and affairs with those of the beneficiary. This doctrine has its foundation not so much in the commission of actual fraud, but in that profound knowledge of the human heart, which dictated that hallowed petition, “lead us not into temptation, but deliver us from evil,” and that caused the announcement of the infallible truth, that “ a man cannot serve two masters.” The right to sell, and to buy, cannot exist in the same person, because of the antagonistic interest in the two positions. Hence the fairness or unfairness of the transaction, and the comparison of price and value, or the existence or absence of actual fraud, are not permitted to enter into the consideration of the court. It is enough that the relation of trustee, and eestui que trust, existed. This appearing, the investigation is at an end, and the doctrine applies with all its force. It is certainly too late in the day to require the citation of authorities to establish this doctrine. But they may be found collected
It is, however, not very cogently insisted In the ar.gument, if at all relied upon, that the defendant can he saved from liability to complainants, if the existence of the paper, with the contents, as charged in the bill are established to the satisfaction of the court under the rules of law. This we have said has been done. The defendant, therefore, must be held to account as an express trustee, for all the monies which have been received by him for the resale of the lands purchased at the mortgage sale, with interest, and the title to so much of said land as has not been sold, will be vested in complainants as tenants in common with the defendant. He will be credited with whatever he may have paid out on account of said lands, with a reasonable allowance for his services. The details will be set out in the decree.
It has not been thought important to discuss the questions made in the argument, arising upon, the statute of limitations, and lapse of time, as the view we have taken of the character of the trust, (being express and continuing,) must, as will be readily seen, put those questions out of the case.