#### HENRY FOSTER et al. *vs.*AMOS JONES.

Where a hill alleged that, at an execution sale of the lands of the plaintiff’s deceased father, a certain person, by representing that he was purchasing for the plaintiffs, prevented competition, and thereby obtained the lands at an under value, and afterwards sold the same to the defendant, who pretended that he was buying for the plaintiffs, but afterwards refused to acknowledge the trust, and convey the land to them, *it was held*that, upon its appearing from the proofs,"that the purchaser at the execution sale, did not in fact buy the lands for the plaintiffs, but *bona fide*for himself, it was not necessary to consider whether the defendant bought upon any trust, and if so, upon what trust, for the plaintiffs; for that, unless the facts proved agreed with those alleged, the plaintiffs could not have any decree, and the foundation of their claim, as alleged, was an original purchase in trust for thereby the purchaser at the execution sale, and a devolution of *that trust*upon the defendant.

The original bill .in this case, was filed on the 29th of September, 1836, by Henry Foster, Hezeldah Terrell and *202Sarah his wife; John Foster and Joseph J. Foster, plaintiffs, aoa^ns(: Amos Jones, defendant. The bill was afterwards permitted to be amended, and as so amended, charged in substance, that a judgment liad been rendered in the County Court of Franklin, at the instance of certain infants suing by diaries A. Hill, their guardian, against the personal representatives of Christopher Foster, deceased; and there being no personal assets of the said Christopher, in the hands of these reprenentatives to satisfy the judgment, a *scire fa-cias*was sued out in due form of law against the plaintiffs, to shew cause wherefore the real estate of the said Christopher, which had descended unto the plaintiffs, Henry, Sarah, John and. Joseph,’should not be sold for the satisfaction of the judgment — -'that upon this *scire facias,*there was an award of execution, and the said execution was levied upon a tract of laud in said county, which had so descended; that, on the 2nd Monday of December, 1830, this land was sold at public sale, when the said Charles A. Hill purchased the same at the sum of SS95, or thereabouts, the amount of the judgment and costs, and took a conveyance fr.om the sheriff therefor; and that the said Hill afterwords sold and conveyed the same to the defendant who entered thereon, and had been making large profits therefrom. The plaintiffs further charged, that the said Hill, well knowing that the land was worth the sum of $2,000, being desirous, while he secured the debt due to his wards, also to aid and assist the plaintiffs, because of his long friendship for their father, did declare and agree, before he bought the said land, that he would bid off the same, and hold it merely as a security for the re-payment to him of the money due upon the judgment, for which he was thereby to become personally accountable to his wards; that the knowledge of this agreement and declaration prevented the by-standers from competing with the said Hill, and caused the land to be sold so far below its value; that there were friends of the plaintiffs who, were willing to buy and hold the land merely as a security, until the plaintiffs could refund the price, but were prevented from doing so, because of this agreement and declaration; that the said Hill, after his purchase, admitted and declared that he was but a trustee for the *203plaintiffs, and bound to convey the said land to them, upon their paying him the amount of the said judgment and costs; and that the said Hill was induced to convey the said land to the defendant, upon his representation that he was acting for, and in behalf of the plaintiffs, the children of his sister; and that the conveyance to the defendant was made upon express condition that he should hold the land upon the same trusts, and permit the said plaintiffs to redeem. The plaintiffs complained that the defendant, after having procured this conveyance to himself, and, after the death of the said Hill, supposing that the plaintiffs would be unable to make proof of the trusts upon which the said land was held by Hill, and conveyed to the defendant, had utterly denied the right of the plaintiffs to redeem, and insisted to hold the land as his absolute property. The prayer was, that an account might be taken of the rents and profits, and the defendant decreed to convey the land to the plaintiffs upon their paying to him, after deduction of those rents and profits, what might be equitably due to him, because of the moneys so by him advanced.

The answer of the defendant, denied that the late Charles A. *Hill,*so far as he knew or believed, made any such agreer ment as that charged relative to the purchase of the land at sheriff’s sale, or that be bought upon any understanding with the plaintiffs, or any person whatever, to hold the land as a’ security or upon an agreement for redemption — said that the defendant was uot-present at the sale, but on the evening of the day of sale, he met with the said Hill, who told him that after the land had been “knocked off” to him, as the highest bidder, hearing that it was not worth the money, he had withdrawn his bid; that the land was set up again, and he then being determined that it should make the money due his wards, renewed his bid; that the heirs of Christopher Foster were vexed with him for doiug so; and that, on the same evening, Henry Foster, one of the heirs, applied to him to learn whether he would take the price which be had bid, but that he had refused to do so. The answer denied also, that the said Hill, by any declarations or acts, caused an impression to be made, or belief entertained, that he was pur*204chasing for the benefit of the heirs, whereby any person was refrain from competing with him, and insisted that he bought absolutely and fairly for himself, and not for tjie ngGor benefit of any other person. The answer denied that the said Hill ever admitted, after the sale, that he had' bought upon a trust for the plaintiffs^ and most explicitly and peremptorily denied that the defendant represented to the said Hill, that *he*was buying as the friend of the plaintiffs, or that he did buy upon any trust or stipulation for their benefit, or upon any understanding that they were to be allowed to redeem, or in any manner for the use or benefit of any person or persons but himself. The answer stated, that the defendant purchased and obtained his conveyance in December, 1830, a few weeks after Hill’s purchase; that he gave for the said land the sum of $>1,000; whereof he paid $500 in cash, and executed his note for the payment of the other $500, with interest from the date of the purchase; that this price was nearly, if not quite, its value; and that desirous as he was of procuring it on account of its peculiar location, he would not have given $1,200 for it. The answer further set forth, that having understood, after Hill’s purchase, that he was willing to sell the land for $1,000, of which $500 was required to be paid down, the defendant had proposed to his nephews that if they wished to re-purchase it, and would let him have a small part of it lying near defendant’s house, he would assist them to make the purchase; that upon its being said by the plaintiff John, or by his mother in John’s presence, that the plaintiff Henry would not join in the purchase, the defendant then proposed to John, that if he and his brother Joseph would make up $300, he would lend them $200, so as to enable them to' make the immediate payment $500, which, it was understood, Hill required as indispensable, and would wait with them for the money so lent, until they should have repaid the $300 they should have borrowed elsewhere, on condition to give the defendant the small piece before mentioned; that the said John seemed to approve .of the proposal, and stated that he would, in a few days, go to Halifax, where he expected to obtain the $300, and would then return and see him on the subject; that the *205defendant waited several days, and hearing no more from the said John, concluded that he had abandoned the idea of buying; that apprehending some other person would buy whoih he should not like for a neighbour, he then applied to the said Hill and bought the land for himself, in the manner before stated, and had paid up the whole of the purchase money therefor, and insisted that he bought *bona fide*for himself, and without any notice of the pretended trust upon which it was alleged that the land was held by the said Hill. The answer further set forth, that the plaintiff Hezekiab, since the purchase by the defendant, had rented from him a part of the .land so bought, without any pretence, that the same had been bought for, and on account of, the plaintiffs; and the plaintiff John, had several times made propositions to buy the land from the defendant; that he and the defendant could not agree upon the terms; and that the said John, in these negotiations, did not pretend or set up any claim to the land itself, under any allegation that he or the plaintiffs had a right to redeem. To this answer, the plaintiffs replied generally, and the parties having taken their proofs, the cause was set down for hearing, and transmitted to this court.

The case was submitted without argument by

*W. H Haywood,*for the plaintiffs, and

*Badger*& *Battle*for the defendant.

GastoN, Judge,

having stated the case as above, proceeded as follows: Upon the proofs, we have no hesitation in declaring that the allegation in the bill, that the late Mr. Hill purchased the land at the sheriff’s sale in trust for the plaintiffs, and upon an agreement to hold the same as a security only, is not m'erely not established but is disproved. No objection has been made to the evidence because of its being *yarol*testimony; and therefore, without enquiring whether it might not have been objected to on that account, we have fully considered the whole of it. In the first place, there is not a particle of proof that the bystanders understood or supposed that Mr. Hill was buying the land in for the plaintiffs, and on that account declined from competing with him at the sale. In the next place, no individual testifies that he was *206present when the alleged agreement was entered into, and ^ess was ca^e^ uPon to take notice of the nature and terms of that agreement. The sole testimony on which the plaintiffs rely to establish this agreement, is that of witnesses who. speak to loose declarations of Mr. Hill, probably imperfectly understood and yet more imperfectly remembered. This is to be found in the depositions of William D. Jones, Aaron Bledsoe and Henry Cooper. The first of these was the *crier*at the sale, and he testifies that before the sale began, he saw Mr. Hill and some of the plaintiffs in private conversation; that after this, ancl as the sale was about to begin, Mr. Hill told him that he was about “ to enter into a disagreeable business, to buy the land for the boys;” that after the sale, he heard Mr. Hill say that lie had bought it for the boys. He does not know that any notice of this intention of Mr. Hill so to buy was, at the time of the sale, given to others, nor that it in any respect influenced the price of the land. He also states the fact, that while the land was up, Mr. Hill recalled his bid — went off into the court-house —and then returned and renewed it. Aaron Bledsoe testifies, that after Mr. Hill had sold the land, he heard him say that he had bought it for the Foster boys, and had sold it to Jones under the understanding that Jones was buying for -them; and Henry Cooper deposes, that after Mr. Hill had bought the land, the witness, supposing that he intended to settle negroes on it and would want an overseer, applied to Mr. Hill to be retained as such, when the latter declined employing him, saying that he had bought it for the young Fosters and did not mean to settle it. Were this *all*the evidence, it would be very unsatisfactory on which to declare the existence of the agreement alleged in the bill. It was so easy to mistake a remark of Mr. Hill, that he was about to do a disagreeable business in buying the land *of*the boys, for the one supposed by the witness, Jones, of buying it *for*the *boys*— and also so easy to misinterpret general declarations of a willingness or an expectation to let the heirs of Foster have the land again, into acknowledgments of a purchase on their account — that we should certainly hesitate very much, to say the least, in founding any decree thereon. But there is plenary evidence, we think, that in fact the witnesses have so *207misapprehended the remarks about which they testify. Washington Branch, a witness for the plaintiffs, deposes, that on' the day of the sale, he, in the behalf and as the friend of the plaintiffs, applied to Mr. Hill to learn whether he would let the plaintiffs have the land back, and was answered that he would, at the price of $>1,000 — that having been put to the trouble of buying, he was determined not to sell without being paid for his trouble. Frederick Leonard, who was present at the sale, also, at the instance of Henry Foster, one of the plaintiffs, made the same application to Mr. Hill, on the same evening, and received the same answer. This witness communicated Mr. Hill’s terms to Henry, and he declined the purchase. There is not the slightest intimation from these agents for the plaintiffs, that it was then pretended that'Mr. Hill had bought under any agreement with or in trust for them; and the latter is explicit in declaring that he understood that Mr. Hill purchased absolutely and for himself. The sheriff, Henry G. Williams, who sold the land; the wit. ness, Leonard, Benjamin Bledsoe and Richard Noble, who were present at the sale, all understood that Hill was buying absolutely for himself. The plaintiffs have not pretended that Mr. Hill was unfaithful to his alleged engagement; but-have insisted that he always recognized the trust, and conveyed to the defendant expressly as his substitute, and in trust 'for them. Mrs. Hill, his widow, and Daniel S. Hill, his son, have been examined upon this part of the case. The former has never heard any such recognition — the latter is full and explicit against it, and his testimony relating to a part of the *res gestee,*is material and strong, to disprove the pretended trust. He was present at the sale, and on the evening after it was made, and, as we collect from his deposition, before the applications to his father through Branch and Leonard, heard his father relate the circumstances under which he purchased. His father said, that he discovered that there was a .disposition manifested by some persons to hurt the sale of the land, by depreciating its value as being less than what was bid for it — that he then went off and ascertained what was the amount necessary to be raised to pay off the judgment of his wards — that he returned and bid that amount, declaring *208that if any person would bid more, he might have it — that he heard his father say, that his sole motive for baying, xvas to save the debt for which he considered himself responsible— that the heirs ought not to be angry with him, for they had had a fair opportunity of buying — that he was under no obligation to let them have it back — he has heard his father since .say that they might have it back for $1,000 — and that he was disposed to give them a preference, at that price, to any other person — but, as he collected from his father’s declarations, he felt himself at liberty to sell to any other person. This evidence is strongly confirmed by the deposition of William K. Fallrner, taken by the plaintiffs. He is examined as to Mr. Hill’s declarations to him, after the purchase by Jones, and states that Mr. Hill enquired if there was not a dispute between Jones and the buys in relation to the land; and, upon being informed that there was, and that it was said the boys found some fault with *him,*he answered that they had no cause to be displeased; that he had waited a considerable time to see what they would do; that when he bought, (meaning no doubt the applications herein before mentioned,) they had made application to him, to get the land back, but had never since said a word more to him on the subject; that he was in debt, and *obliged*to have money, and sold the land to raise it. The testimony of Aaron Bledsoe, weak as it is, is rendered yet weaker by a fact which is testified by Benjamin Bled-soe; that the said Aaron informed him, that in a conversation with Mr. Hill about the land, before he sold it to Jones, Mr. Hill observed, that if lie could not sell, he would settle his son-in-law, Dr. Malone, upon it. If, in connection with this evidence, we consider the extraordinary character of the trust alledged — that Mr. Hill, who, though a man of property, was then in debt, and pressed for money to pay it, would bid off the land for the amount of the judgment and make himself thereby accountable to his wards for so much money in his hands, yet hold the land simply as a security, allowing the plaintiffs an unlimited time for redemption — we hazard nothing, we think, in pronouncing that he did not purchase in trust for the plaintiffs, as by them alledged.

This allegation being disproved, it is not material to exam*209ine whether the defendant bought upon any trust, and if so, what trust for the plaintiffs; for unless the facts proved with those alledged, the plaintiffs cannot have a decree; and the very foundation of their claim, as alledged, is an original purchase in trust for them by Hill and a devolution of *that trust*upon Jones. We have, however, examined all the evidence relating to Jones’s purchase; and we are obliged to say, without commenting minutely upon it, that this evidence leaves it wholly uncertain whether Jones bought upon any previous agreement with the plaintiffs, or only with an intention to make an arrangement with them, which had been talked of before his purchase, and which, it was thought, would be mutually agreeable — and equally in doubt, if there was a previous agreement, whether, by that agreement, the plaintiffs were to have the whole of the land or all except the part close to Jones’s house, and, therefore, peculiarly desirable to him. In this state of the evidence, independently of the failure of the plaintiffs to shew a trust in the original purchaser, their bill could not be sustained.

The bill of the plaintiffs is to be dismissed; and, because of the falsehood in the main allegation, it should be dismissed with costs.

Per Curiam. Bill dismissed..