#### BENNETT P. PITT *vs.*WILLIAM D. PETWAY.

Where A. B. and C. were interested as the principal *cestuis que trust*in a deed of trust of slaves, jor the payment of debts, in which A. was the trustee, and, by an agreement between the three, B., at a public sale, under the deed by the trustee, bid off the slaves, for the benefit of the three ; Held, that, by this sale, the legal title vested in all, as tenants in common.

The position, that “a trustee cannot buy at his own sale,” must be taken with some qualifications. He may buy at hfe 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.

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 co-tenants may treat this as a destructiou of the property. But a sale to a citizen of the State is not tantamount tp a destruction, and therefore does not amount toa conversion.

- Appeal from the Superior Court of Law of Edgecombe County, at the Spring' Term, 1851, his Honor Judge Ellis presiding.

This was an action of trover for the conversion of a slave, named Barton.

The plaintiffs proved, that the slave in question, had been the property of one Robert Belcher, who, by deed in trust, dated 1st of June, 1849, conveyed him, with other slaves, for the payment of debts to the defendant, Petway. In December of the same year, the defendant exposed this and the other slaves, thus conveyed, to sale at public auction upon a credit of four months, the purchaser giving bond with approved sureties. This sale was made in pursuance of the terms of the said deed of trust. One Lewis Belcher bid off the slave Burton, with others, who then went into *70his possession ; and by deed, dated 16th of April, 1850, the said Lewis Belcher donveyed to the plaintiffs, several slaves by name, and also his “ *interest in negroes*Luke, *E'dmund, Burton and Kate,”*to be held by the- plaintiffs in trust for: the payment of debts owing by him.. In Jane, 1850, the-defendant, who was also sheriff oí Edgecombe county, took the said slave into h-is possession under an execution in favor of one Lawrence against the said Robert Belcher, and-exposed him to public sale, when he- was purchased by one-Armstrong, a citizen of Edgecombe county. The circumstances, under which- Lewis Belcher bid off'the slave at the-sale ol Robert Belcher’s property, were as follows: The-(defendant,. Petway, and on© Sugg- and Lewis were creditors, of Robert Belcher,, whose claims were provided for in the-said deed in trust to- Petvvay. The said Petway, Sugg and Belcher held a conference j,ust before the slaves were exposed to sale in December, 1849,, when it was agreed between the three, that, as they were all interested in making, the property bring a fair price, the purchase money being principally applicable- to their respective claims under the said deed in trust, unless the slaves brought certain prices,, which were set forth in a paper, which Sugg then held in his hand, they should be bid off by Lewis Belcher for. the-benefit of the three, and that they should again be sold, when an opportunity presented, for the benefit of the said Lewis Petway and Sugg. He gave no note for the purchase money for the slave, nor did he pay any money. After this sale, it was agreed between the- said Petway, Sugg, and Lewis Belcher, that he, Belcher, should keep possession of the slave, and that either of them should make a sale of- him for the benefit of *them,*when an opportunity presented. That the said Belcher, with the approval of Petway, did once offer to sell the slave.

It was also proved, that Mr. Lawrence’s execution, under which the slave was sold by Petway, was under the control of Sugg, .the judgment having been assigned to one Nor-*71fleet, who held it in trust for Sugg-; and that the said debt was one provided for under the deed in trust of the said Robert Belcher. It was admitted, that the said execution per *se*gave no valid lien upon the said- slave, the said Sugg having assented to the first sale by Petway.

It was proved by Lewis Belcher, that at the time of making his trust deed, he declined the request of the plaintiffs to insert the slaves Burton and others, because, as he told •the plaintiffs, it could not benefit the trust then making; ■'but finally yielded to the plaintiffs, and inserted them in the form stated.

The plaintiffs contended, that Lewis Belcher acquired a title to the whole legal interest in the slave at the said first sale, and held him afterwards as trustee for said Petway and ■Sugg; and that the plaintiffs were entitled to recover in this ■action the full value thereof, they having acquired Lewis Belcher's interest: That, if he, Lewis Belcher, only acquired one third interest in the slave, the plaintiffs were entitled to recover to the extent of that interest, as the slave had been sold by Petway, another joint owner.

The Court was of opinion, that Lewis Belcher did not acquire a legal title to the entire slave as trustee for Petway and Sugg, as contended; but that, if any title at all passed from Petway as trustee for Robert Belcher, the said Lewis Belcher only acquired title to the extent of one third of the interest in the said slave, and held this as joint owner with Petway and Sugg .- and that it did not appear, that there had been any such distinction of the property as would enable the plaintiffs, who had Lewis Belcher’s interest to maintain *trover*against one of the other joint owners.

The jury returned a verdict for the defendant. Rule for a new trial. Rule discharged. Plaintiffs appealed to the Supreme Court.

*72
      *Rodman,*for the plaintiff.

*Moore*and *Biggs*for the defendant.

Pearson, J.

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 and 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 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 after-wards 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 parlies 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 com cerned 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 *73title in Lewis Belcher in trust for the three. His Honor, we think, properly adopted the former conclusion. The purchase was made for the benefit of the three, and they were to contribute rateably 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 irom 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 “ á trustee cannot buy at his^on’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 wo 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 an *aliquot*part of the value, in the same way as if he had destroyed the property, The conversion consisted in this: The defendant, as sheriff, sold the slave under an execution in favor of *Sugg,*and he was bought by one Armstrong, “ *a citizen of Edgecombe coun-iy”*

*74The rule as between tenants in common is, that one cam not 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 co-tenants 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 co-ten-fants may treat this as a -destruction of the property. *But*the idea that a sale to “ a citzen of the county” is “ tanta» mount 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 wrong doer, with whom there is no privity ; for which position there is no-authority and no reason.

•Per Gueiam. Judgment affirmed.