#### *Mitchell King vs. John Robinson et al. Anna Maria Rugeley vs. Alexander F. Gregorie et al.*

Lands were conveyed by a debtor to trustees for the benefit of creditors, and were sold, but doubts being entertained as to the validity of the sale, some of the representatives of the debtor, for valuable consideration paid by the trustees out of the proceeds of the sale, and other representatives with, out any consideration at all, released, in order to perfect the title of the purchasers, all their interest in the lands. The debts being satisfied and a fund remaining undisposed of, *held,*on bill filed for distribution of the fund among the representatives of the debtor, that the parties who had been paid for the release of their right, must bring the amount received by them into the account.

*Before*Bunkin, Ch. *at*Charleston;

*February,*1845.

The bill filed in the case first stated, presents a very full history of the complicated transactions which have given rise to these proceedings.

The fund in the custody of the court is from the sales of lands, which, prior to the Revolution, belonged to Rowland Rugeley. By his will, dated, in December, 1775, a moiety of these lands was devised to his brother, Henry Rugeley, and the other moiety to his other brothers and sisters. The lands had been purchased with funds alleged to have belonged to the co-partnership estate of Rowland and Henry Rugeley. In 1790, Henry Rugeley conveyed the lands to trustees for the purpose of being sold, and of paying the debts of Rowland and Henry Rugeley. In 1810, Susan Rugeley, oí Potten in England, in whom the rights of the other devisees of Roland Rugeley had, in the mean time, vested, released all her interest in the premises to the then acting trustee, under the deed of 1790, for the purpose of enabling him to carry into effect the objects of the trust.

Many difficulties were still encountered by the trustees in completing the sales of the lands, in consequence of supposed outstanding- titles in the representatives of Rowland, or Henry, Rugeley. In 1818, the heirs of Henry Rugeley, through their agent, John Robinson, agreed with the trustees to release all their claim or interest, in order to remove any doubt as to the title of the trustees, and, with that view, conveyed all their interest to *158John Robinson, in trust to execute all necessary assurances to the purchasers from the trustees, in consideration of receiving from the trustees a stipulated sum from the sales of the said lands.

Soon after the execution of this deed, a litigation commenced between the trustees and the various purchasers, which was certainly not terminated until 1834.

In August, 1842, Anna Maria Rugeley and others preferred their bill in this court, insisting that they and other persons, claiming, with them, under Susan Rugeley of Potten, (who died in 1824,) are entitled to the whole of the fund proceeding from the sales of the lands which is now in Court, on the ground that the trusts under the deeds of 1790 and 1810 have been fulfilled and satisfied, and that any Tight in the heirs of Henry Rugeley was extinguished by the deed of 1818.

In what has been said, it was not intended to present a minute, or even very accurate, history of the facts. For that, reference must be had to the pleadings. Much less would it be proper, or even practicable, to attempt, advantageously, any abridgment of the evidence in relation to that portion of the case which is the most difficult and embarrassing. •

In 1822, M. King, Esq. was appointed, by the proper parties in England, to represent and prosecute the rights of the creditors. The narrative, presented by him, affords another lamentable illustration of the law’s delays, delays too, which it is often much easier to deplore than to obviate ; and when, at length, his exertions in behalf of his clients had been partially crowned with success, the result of his efforts to reach them is painfully interesting. It shews how unequal are human hopes, or human life, to contend with protracted litigation. While he was still pursuing their claims in the tribunals of justice, his clients had all died, and it is much to be feared that their rights have died with them. When he sought to discharge his trust by paying over the fund, he could find no one to receive it. Death and bankruptcy, and vicissitudes in human affairs, had, long since, destroyed every memorial of those, in whose names, or for whose benefit, the litigation had been conducted. By the orders already made in this court, Mr.. King has been discharged from all further responsibility, (having-paid the funds into the hands of the master) and all parties have-been enjoined from any proceedings against him.

The lands from which the fund arises, belonged, both before- and after the execution of the trust deeds, to the representatives, *159of debtors, subject only to the claims of the creditors. The same character attaches to the fund. No one interposes any claim on behalf of the creditors. After the most diligent inquiry, no one can be found who is willing to represent a creditor, or assume- his rights. After the lapse of time which has intervened and the other facts which- have been established, it seems the duty of the court to recognize the rights of the complainants, and to direct the fund to be paid over in the same manner as if the satisfaction of the trusts had been fully established. Whether they have been satisfied, or have become impossible, or the claims of the creditors have been abandoned, the result is the same.

It remains to consider the effect of the deed of 1818, on the rights of the heirs of Henry Rugeley.

From the history of the case, it is manifest that, even after the confirmatory deed of 1810, by Susan Rugeley of Potten, the trustees had much difficulty in making title to the lands — what was the character of the obstacle interposed by the heirs of Henry Rugeley, or under what right, or supposed right, they interfered, cannot now be ascertained. It is clear, however, from the recitals in the deed of 1818, that their claims embarrassed the sale, and it is not less clear that, through their agent, John Robinson, they had agreed to relinquish their claim. In consideration of receiving a stipulated sum from the sales, they, accordingly, released their interest to Robinson, in trust, as has been stated, to execute the necessary *deeds to the*purchasers from the trustees. In the opinion of the court, this must be viewed as part of that transaction. The release was not to the other devi-sees of Roland Rugeley, nor for their benefit. Nor could the trustees of course take any beneficial interest, either under the agreement or the deed. The heirs of Henry Rugeley were paid, too, from their own funds, which the- court has declared to belong to them, subject only to the payment of the creditors. It is insisted, on the part of the complainants, that the trustees acted for them as well as for the creditors. But they, the trustees, stood in the same fiduciary relation to the heirs of Henry Rugeley, and any contract, made with them, to the disadvantage of the *cestuis que*trust, would be permitted to stand only as a security for the monéy paid. But suppose the representatives of Susan Rugeley of Potten, had also interposed a claim, or were supposed to have some rights, notwithstanding the deed of 1810, which threw a cloud on the title of the trustees, and they, (being the present complainants) had also released their right in the samo way, in consideration > of one hundred, or one thousand *160pounds, paid from the sales of the lands; would such release now bar the claim of the complainants ? And, if so, to whom would the fund now belong ?

In the judgment of the court this was a common fund, placed in the hands of the trustees for a specific purpose. The object having been accomplished, or having become impracticable, the fund belongs to the original owners. The heirs of Henry Ruge-ley having already received a share of the fund, and asking a further participation, must account for what has been already paid, on a principle analogous to that recognized by the court of appeals in *Perdrieau vs.*Hunt, Riley’s Eq. Ca. 88.

It is ordered and decreed that it be referred to the Master to state an account between the parties in relation to the fund, on the principles herein indicated, and that he report thereon, with leave to report any special matter preparatory to a final decree.

The defendant, John Rugeley, appealed from so much of the foregoing decree as directs the heirs of Henry Rugeley to bring into account the money received from the trustees in 1818, on the ground:

That the heirs of Henry Rugeley are not accountable to the heirs of Susan Rugeley, for the money which they received for joining in the deed of 1818.

Petigru, for the motion.

•-■, contra.

*Curia, per*DuNicin, Ch.

In the argument at the hearing in the circuit court, it was insisted, on the part of the devisees of Rowland Rugeley, that, as the heirs of Henry Rugeley had refused to concur in carrying the trust into effect, and had exacted from the trustees a valuable consideration for the release of their right, every possible or contingent claim on their part was thereby extinguished — that their ancestor, Henry Rugeley, had conveyed the lands to trustees for the purpose of being sold, and of paying the debts of Rowland and Henry Rugeley;— that the heirs could, therefore, have no other claim but their right to the residue, and this contingent right was released by the deed of 1818, in favor of the other parties interested in the fund. There was much to sustain this view of the transaction. But the court regarded it as a contract between trustee and *ces-tui que trust,*and which could not be insisted on to the disadvantage of the latter, — that the trustee stood in a fiduciary relation, both to the heirs of Henry Rugeley and the devisees of *161Rowland Rugeley, and could make no bargains to the prejudice of either. But, if the contract is to be opened, it is quite clear that the consideration money must be brought into the account.

A testator devises his estate to his executors for the payment of his debts, who accordingly sell the estate for thirty thousand dollars. One of the heirs suggests some real or imaginary doubt as to the authority of the executors, which is sufficient, however, to interrupt the completion of the contract. He, in consideration of receiving ten thousand dollars of the purchase money from the executors, withdraws his objection, or releases his interest. His co-heir does the same gratuitously. The supposed debts of the testator are proved to have been paid, or are abandoned. The twenty thousand dollars, which remain in the hands of the executors, are now to be apportioned.

In such case, it would be difficult to maintain that the heir, who had already received one-third of his father’s estate, should divide the residue equally with his co-heir, who had received nothing. Whether, if the twenty thousand dollars had been exhausted in payment of debts, the co-heir could call for an account of the ten thousand dollars, is not now the inquiry. But he who asks the aid of this court, must conform to its principles.

There was no evidence before the court as to the amount of funds received by the former trustee, or of his disbursements. It was only in evidence, that the amount paid to the heirs of Henry Rugeley, was part of the fund received for the sales of the lands. This was a common fund, to which the devisees of Rowland Rugeley were equally entitled, and, in distributing the surplus, they should first be placed on an equality with the heirs of Henry Rugeley.

The appeal is dismissed.

Johnson, Ch. concurred.