#### JANE BENNETT *against*JACOB MERRITT *and others.*

Where the agent of a trustee received money, arising from the sale of trust property, made by collusion with him, it was *held*not to be a defense to a bill against such agent to follow the funds in his hands, that he had paid the- ■ money over on liabilities which he had incurred for the trustee.

Where trust property is wrongfully sold by a trustee, by collusion with another, who did not, however, receive any part of the price for which the property sold, it was *held*that the principle of following the trust fund, in its converted state, does not apply to such other person.

Cause removed from the Court of Equity of Wayne county.

Thomas Bennett, of the county of Sampson, died about the-year 1857, leaving a widow, the present plaintiff, Jane, and one daughter, Virginia, his distributees, and the defendant, James E. Parker, administered on his estate. Afterwards, in August, 1857, Virginia, the daughter, died, leaving her mother, the said Jane, her sole distributee. J. E. Parker also administered on her estate. The said Parker took possession of the personal estate of both, consisting of slaves, household furniture, stock of horses, &c., carriage, growing crop, provisions on hand, notes, '&e. on several individuals. In March, 1858, the defendant, Jacob Merritt, insinuated himself into the confidence of the plaintiff, and married her, she having *264first made a deed of marriage settlement, securing all her property to her sole and separate use, and constituting himself (the said Merritt) her trustee. It turned out that Merritt, at the time of this marriage, was a married man, and had a wife then living-in the State of Alabama, and was otherwise a very faithless and unworthy man. Shortly after the marriage with Mrs. Bennett, he set himself to work, by harshness and intimidation, to get her property in his hands, and to sell all of it he could get. Parker, the administrator, who seems to have understood the character of Merritt, thwarted him as much as he could in his designs of despoiling Mrs. Bennett of her property and kept much of it in his hands, while it appears that the defendant, Monk, an uncle of Merritt, aided and abetted him in his designs. It appeared that Mrs. Bennett was induced, after the marriage, to remove from her homestead in Sampson, to a place called Magnolia in Duplin county, belonging to Monk, and he admits that he advised their removal to this place, but says it was from kind and benevolent motives.

It is alleged in the bill, and admitted, that Merritt made a conveyance of all his interest in the slave-property, whicli had belonged to Mrs. Bennett, to the defendant, Monk, but he says that this conveyance was by no means made in fraud of the *cestui qui*trust, but for a valuable consideration, to wit, the indemnity of him (Monk) for debts paid and liabilities incurred by him for the said Jacob. It appeared that Merritt succeeded in getting two of the slaves, Hillory and Ell'ender, which he sold for $-, and delivered, $900 of the money to Monk, who, in his answer, says he paid it out on liabilities which he had incurred for Merritt, and he goes into a list and minute account of such payments. Monk answers, that he had no knowledge how the money arose, but the proofs on this subject, in the opinion of the Court, are sufficient to fix the knowledge upon him.

Merritt got possession of another slave belonging to Mrs. Bennett, by the name of Dilsey, and in company with Monk, was proceeding to carry her out of the State to sell her. On *265arriving at Goldsboro’, they consulted an attorney, who told them they could not sell the slave unless they got the authority of Parker, the administrator. They then went back to Parker, who executed a bill of sale to Monk for Dilsey, and he conveyed her, in like manner, to Merritt, who took her to Bichmond and sold her and received the money for her. Monk, in his answer to this allegation, says that Dilsey was an unmanageable slave and had lately runaway, and that her mistress was displeased with her, and wished her sold. He denies receiving any part of the purchase-money.

The prayer of the bill'is for a decree of nullity of the marriage, and that Monk deliver up, for cancellation, the conveyance of the property to him by Merritt, and that he account for the value of all the property belonging to Mrs. Bennett, which was sold by Merritt, and for the $900 received by him, as being the proceeds of her property, also for a decree against him for the price of Dilsey, and also a decree against Merritt for an account of all the property which came into his-hands.

The cause was set for hearing on the bill, answer, exhibit and proofs, and sent to this Court by consent.

*JB. F.*Moore, for the plaintiff.

McRae, for the defendants.

PeaRSON, C. J.

The allegation, that at the time of the marriage, the defendant had a wife, ydio was then living, is clearly proved ; of course his marriage with the plaintiff was void, and she is entitled to a decree of “ nullity of marriage” so far as she is concerned. She is also entitled to a decree making void the deed by which, in contemplation of marriage, she conveyed her estate to Merritt,-in trust, for her sole and separate use. She is also entitled to a decree that the conveyance of the slaves, made by Merritt to Monk, shall be surrendered and cancelled, so as to remove the cloud from her title. • -

We are also satisfied by the evidence, that the $900, which Merritt handed over to the defendant, Monk, to 'secure him *266against the liabilities which he had entered into for Merritt, was money received by Merritt for the two negroes, Iiillory and Ellender, and, on the ground of following the trust fund, the plaintiff is entitled to a decree against Monk for that amount. He faintly denies notice, but that is clearly fixed on him, and the ground on which he puts himself, in respect to this money, to wit, that he had paid it to the creditors of Merritt, to whom he had become liable, as surety for Merritt, will not avail him. That money, in his hands, was a part of the'trust fund, and he knew it: consequently, Merritt, as a trustee, had no right to apply it to the discharge of his debts, and the defendant, Monk, had no right to do so for him.

In respect to the woman, Dilsey, we have had more diffi,culty in coming to a conclusion. She was conveyed by Parker to Monk, and he made a bill of sale to Merritt, for the purpose of enabling Merritt to sell her. Merritt did accordly sell her, but it does not appear, according to proofs, that Monk received any part of the purchase-money ; on the contrary, we are satisfied that Merritt used the money, received by him, as her price, himself; so the principle of following the trust fund, in its converted state, does not apply, and putting out of view the averment, that the woman, Dilsey, was thus sold by the consent of the plaintiff, because of the slave’s insubordination, and also the averment that it was done under the advice of respectable counsel, we can see no ground on which the defendant, Monk, can be made liable, in respect of this slave, even if we suppose he acted collusively, and became an actor in the transaction with an intent to aid Merritt, the trustee’, to get into his hands this negro, and sell her, ■and appropriate the purchase-money to his own use ; for, when Monk takes the ground, that no part of the money can be traced to his hands, he cannot be reached on the principle of following the fund, and there is no other princtple by which, in Equity, he can be- made liable.

The defendant, Merritt, is chargable with all the funds which came to his hands, by reason of the sales made by him or otherwise.

*267As to the other property, the deed executed by Merritt to Monk, does not include it, and there is no proof of his having taken it into his possession, so there can be no decree in respect to it. So, the plaintiff must be left to her own vigilance in gathering it up. There will be a decree against Parker for an account.

Pee Cubiaji, . Decree accordingly»