#### JOEL JENNINGS et al. Ex’rs of LEMUEL JENNINGS, v. ELLIOT SYKES, et uxor.

A trustee cannot claim from the *cestui que trust*immunity from the consequences of a breach of trust, or indemnity against pecuniary loss from it:— Therefore where a guardian procured an order of Court for the sale of slaves belonging to his ward, and purchased them himself, and afterwards claimed them as his own, *it was held,*that he could not, upon the ward’s becoming of age and recovering the slaves in a suit at law, obtain in a Court of Equity, remuneration for his expenses in keeping and maintaining them.

Lemuel Jennings was the guardian of Susan Harris, an infant of tender years, who was entitled to a negro woman and three children. The guardian obtained an order of the County Court for the sale of them, upon the ground that the ward had no other sufficient estate to defray the expenses of their support. At the sale, Jennings became himself the purchaser, through a friend, at the price of $101 ; which he credited to his ward, in the guardian accounts returned to coui't. He kept possession during his life, and the negroes increased to a numerous family ; and at his death, his executors delivered them to the several persons to whom Jennings in his will bequeathed them. Actions of detinue were then instituted by Susan Harris against those several persons for the slaves in their possession respectively, and judgments obtained in the names of herself and Sykes, with whom she intermarried. Thereupon the executors of L. Jennings filed their bill against Sykes and wife, and therein further alleged, that their testator believed he had acquired a good title to the slaves, and under that belief, took possession of them as his own property, and laid out large sums of money and labor in their maintenance ; but that the recoveries against his legatees were effected upon the ground that his purchase was a nullity. The bill insisted then, that Jennings held the slaves as guardian, notwithstanding his supposed purchase and his claim, and therefore that his estate was entitled to be reimbursed those expenses. And the prayer was, that an account might be taken thereof, and that the slaves might stand as a security for the sum found due, and, in the mean while, for injunctions to stay the executions at law.

*152The defendants gave security to abide by the decree that might be made, and the order for an injunction was there-uPon discharged.

The defendants answered, that the sale was made for the purpose of defrauding the ward, and not honestly for the reason stated in the petition ; and that both Jennings and his legatees claimed to hold, by virtue of his pretended purchase, in opposition to and defiance of the defendants’ title ; and they insisted, therefore, that the plaintiffs had no right to the compensation claimed, or if they had, that it ought to be recovered at'law.

Iredell, for the plaintiffs.

*Kinney,*for the defendants.

Ruffin', Chief Justice,

after stating the case as above, proceeded as follows: We are not aware of any equity, on which the bill can be supported : and are of opinion that it must be dismissed. If the defendants had found it necessary to seek their redress here, their obligations to remunerate the plaintiffs for outlays, of which they derived the benefit, might perhaps be recognised. But that is not the case. The guardian did not clothe himself with the legal title, but the ward was able to recover at law upon her original title and without any help from this Court. The guardian has to resort to us, and he asks that the recoveries at law may be defeated, at least in part. The equity on which this is asked is, at all events, novel. It is one of this sort: That a trustee may claim from the *cestui que trust*immunity from the consequences of a breach of trust, or indemnity against pecuniary loss from it. We see no sound reason for such a principle. It is said, however, that there was no breach of trust; for the sale was ineffectual, and the title remained as before. But that only proves that by the providence of the law, the breach of trust was not as successful, nor the injury as great as it was intended. Still it was a breach of trust, inasmuch as the guardian denied his ward’s title, and claimed and disposed of her negroes as his own. If a stranger had taken the slaves into possession as a wrong-doer, neither natural justice nor artificial equity would sustain a demand upon the *153innocent owner for outlays on the slaves, beyond the proceeds of their own labor. With even less face, it would seem, can one prefer the claim, whose office it' was to take and keep possession for the owner, and who, contrary to his office, denied the owner’s right and set up title in himself. If the title thus set up prove defective, the party must submit to the loss. He can look no further for remuneration ; for his advances were made in confidence of his own tide, and not on the faith of that of his *cestui que trust.*The relation between the parties cannot, therefore, affect the question; for every act, out of which the claim arises, was done without reference to that relation, and contrary to the duties incident to it. The bill must be dismissed with costs.

Pee. Cukiam. Bill dismissed.