#### CHARLES M. FORD *vs.*JOHN H. BLOUNT’S EX’OR.

June 1843

If an executor or administrator, at his own sale, procure an agent to buy for him any part of the property of his testator or intestate and then to re-convey it to him, such executor or administrator shall account for the full value of such property, or for such higher prices as he subsequently obtains for it, beyond the amount bid by his agent.

The case of *Hoskins*v *Wilson,*3 Dev. & Bat. 343, cited, explained, and approved.

Appeal from the Superior Court of Law of Perquimons County, at Spring Term, 1843, his Honor Judge Pearson presiding.

This was an action of debt upon a note under seal, for $960 90. The defendant relied on the plea of fully administered. To shew assets, the plaintiff proved that at the sale of the effects of the testator in June, 1838, the growing crop of corn was sold by the defendant and bought by one Skinner, who also bought most of the negroes of the testator — . that afterwards the defendant had the crop cultivated by the negroes, and the crop, when sold by him, produced $1800, over and above the price given by Skinner and a reasonable sum for the after cultivation, gathering, &c. Skinner gave high prices for the negroes, much more than they could be now sold for; and bought the crop oí corn, which was sold by fields, at $1 50 cents per 1000 hills, about $3 50 cents per acre, which was a fair price under the circumstances— the time of the year — the little demand for growing crops, as all farmers then had crops in tend — .though the crop would have been worth much more to a man who had force to cultivate it. *Skinner*swore, that Mrs. Blount, the widow, who was his wife’s sister, both being the daughters of *the**517defendant, before the sale, requested him to b:d for her — that in several instances he bid openly for the widow, thinking that would affect the prices, and the clerk of the sale set 3 ' such articles down to the widow — but as Blount’s estate was supposed to be insolvent, and many creditors were present, he found they were not inclined to favor the widow, and when the negroes were sold, he bought them in his own name. He bought the crop in his own name, and both the negroes and crop were set down in the account of sales to him, although he bought them as the agent, and at the request of the widow. But afterwards the defendant executed to him bills of sale for the negroes, and he immediately re-conveyed at the same prices to the defendant. The defendant also credited him lor his several bids for the corn crop, and immediately took the corn from him. There was evidence tending to shew that the defendant had procured the widow to request Skinner to buy the negroes and corn. — ■ Unless the defendant was charged with the $1800, thus realized from the corn crop, it was admitted that he had fully administered.

The plaintiff’s counsel insisted that, in fact, Skinner had, through the instrumentality of the widow, been procured to buy the corn for the defendant, and then having re-conveyed to the defendant, it became again the testator’s property, in the same way as if the defendant had bought it himself directly ; and that the doctrine in *Hoskins*v Wilson, 4 Dev. <fc Bat. 243, was confined to slaves and land, which passed to tne agent by a written transfer. The court charged, that if in face Skinner bought the corn from the defendant, and, after the title was in him, immediately transferred it back to the defendant, although this circumstance might have the effect in equity, where matters of account can be properly adjusted, to charge the defendant with the net proceeds, after proper allowances, yet, in law, the corn, having passed to Skinner, ceased to belong to the estate of the testator, and the defendant was not chargeable in respect thereof for more than the amount of Skinner’s bids — that this principle depended upon the title passing to the agent, and it made no *518difference whether the title passed by deed or by a mere par-°1 sale, whei> the property was oí a nature to pass without deed.

rphg jury fQUncl for the defendant upon the plea of fully administered, and judgment having been rendered accordingly, the plaintiff appealed.

*A. Moore*for the plaintiff.

*Kinney*for the defendant.

Gaston, J.

It seems to us that upon one view of the case, which was properly submitted to the consideration of the jury, the instructions of the court were erroneous. His Honor having left it Rto them as a question of fact, whether the witness Skinner, at the public sale made by the Executor, bid off the growing crop for *him,*instructed them, that, if they should so find, the executor was nevertheless not, in law, chargeable to the creditors of his testator for the amount which that crop actually produced in his hands, but only for the sum at which it had been so bid off. In support of this position it has been argued by the defendant’s counsel, that, by the contract of sale, the *legal*title in the crop passed to the purchaser, and was wholly divested out of the defendant as executor, and that, upon the re-transfer, it vested in the defendant again, but in his individual character; that the alleged trust under which the purchaser bought could not be noticed in a Court of Law, as invalidating the sale, but was cognizable only in a Court of Equity, which would not allow the executor to derive gain therefrom ; that these principles were distinctly recognized in the case of *Hoskins*v *Wilson,*(3 Dev. & Bat. 243) where there was a transfer from the vendor and re-transfer from the vendee by deed, and that the same principles must apply in cases of transfer and re-transfer by parol, if the nature of the property permitted it to pass without deed. We do not think that the question to be decided necessarily involves the enquiry, whether, at law, the title of the growing corn passed to the *519supposed purchaser, and was-immediately thereafter re-vested in the defendant, or whether, notwithstanding such appa-^ rent or pretended sale and re-sale, it continued in the defendant until his final disposition of the corn. The question to be decided is, for what sum is the defendant chargeable to the creditors of his testator because of that crop of corn. Is it what he actually got, or only the price at which his agent bid it off? Assets in the hands of an executor or administrator are thus defined : “ All those goods and chattels, actions and commodities, which were of the deceased-in right of action or possession as his own, and so continued to the time of his death, and which after his death the exec-j utor or administrator doth get into his hands as belonging! to him in the right of his executorship or administratorship,'/ and all such things as do come t-o the executor or ad-minis-] trator in lieu or by reason of that, and nothing else shall be! said to be assets in the hands of the executor or administrator to make him chargeable to a creditor or legatee.” — » Touchstone 496, *2*Will’s on Ex’rs 1012. Now the net price, which the defendant obtained for the corn, when ultimately disposed of by him, was obtained in lieu and by reason of goods of the testator which had come to. him in his office of executor, and for this price he ought to be charged unless he had theretofore *rightfully*disposed thereof at a less price. Nothing is better settled with us than that ani executor cannot buy at his own sale. It would be a mise-* rabie evasion of the law, if he could rightfully do tbisj through the intervention of an agent. What is prohibited^ directly cannot be sanctioned,-if done indirectly. Suppose, therefore, the sale or pretended sale to Skinner did pass the legal title, yet if in this transaction he were the agent of the executor and bought for the executor, it was a wrongful disposition, and the price is not the measure of the value of the corn wrongfully sold. An executor cannot be allowed to speculate upon and make profits out of the estate of his testator. Whenever it is seen that he has made profits there-out, these profits, as well at Law as in Equity, are assets for the satisfaction of creditors and legatees. So if he buys in *520a debt of his testator for less than its nominal amount, he shall be allowed only what he paid therefor. And it will make no difference whether lie buys in his own name or , , . *J*through the intervention of an agent.

If the case of *Hoskins*v *Wilson*has been regarded as authority, for the position that a transfer by an executor to an agent, and a re-transfer by the agent to the executor, changes the character of the executor’s ownership, that he now holds absolutely what he before held *in*trust, we must be permitted to say our decision has been misunderstood.— There is.a great difference between the legal effect of sales, conveyances and other dispositions, when made by trustees, who are at law the owners of the property, and when made by those who, without having an estate therein at law, are entrusted with certain powers in relation thereto. In the case referred to, the trustee, whose conduct was arraigned, was of the latter description. Upon the petition of several tenants in common of certain slaves, an order wais made by a competent court for the sale. The sale was made, reported to the court, and confirmed, and a conveyance in due form executed to the reported purchaser by the petitioners. Some of these petitioners were under age, and it was alleged that the purchaser bought in the slaves for the guardian of the infants, and, shortly after taking liis conveyance, conveyed ^them to the guardian. We held, that, although the sale 'might have been set aside under the rule which prevails in Equity, that no trustee or agent of the parties to a sale shall be allowed to purchase for himself, yet the legal title of *ihe petitioners*passed under their conveyance to the reported purchaser, and by his conveyance to the guardian of the infant petitioners. So in the case there quoted of *Jackson v*Walsh, 14 Johns, 407, there was a sale of *land*made by an executor, and it was objected that under his deed the purchaser could not take the legal estate, because the purchase was made in trust for the executor. Here the vendor was not owne.r, and the estate did not pass from him. His deed operated at law as an appointment, and the vendee as the appointee under it took the estate from the devisor. The *521objection that the estate did not pass under this *at law*was overruled, but it was distinctly admitted that a Court of Equity would have readily listened to an application from persons interested in and aggrieved by this transaction, had it been made in due season, and have set aside the sale as one in violation of the settled law of that court. But an Executor holds the goods, which were of his testator as the legal owner, and although the law gives him this dominion for the benefit of others, yet a sale of these goods by him is made in the legal character of owner. Now no man can sell his own property to himself, and whenever an alleged sale, however disguised, is perceived to be of this character, it must be pronounced by every court, which can look beyond the forms of the transaction, to be a nullity. — . Whether there may not be cases in which, because of the peculiar operation of the. solemnities accompanying a pretended transfer from and re-transfer to an executor, a Court of law may be incompetent to ascertain the truth of the transaction, we forbear to say until a necessity for a determination of that question shall arise. But in the case under consideration, we have no difficulty in saying that there was no impediment of this character. If no consideration passed or was intended to pass from the bidder to the executor, there was no contract of sale. The transaction was in fact a sham, a pretended sale, and the law will so pronounce it. The property remained what it had been, the property of the executor.

The judgment must be reversed and a new trial awarded.

Per Curiam. Judgment reversed and new trial awarded.