#### Alwin S. Britton and others *vs.*William Lewis and others.

Bill against his administrator to set aside a sale of negroes made by an executor, on the ground that the executor was himself the purchaser at the sale, and for his own benefit. The answer of the administrator denied that the executor was the purchaser at the sale; and the evidence was, that the possession of the ne-groes was never changed, but remained with the executor until his death, and were then sold as his property; and, that a son-in-law of the executor was the bidder at the sale, and was entered on the sale bill as the purchaser: *Held,*that the evidence was insufficient to show that the executor was himself the purchaser at the sale; for as stated in the answer, he may have purchased from his son-in-law.

Where there are several executors, and hut one qualifies, he alone may execute a power authorizing the executor to sell lands*

An executor with power to sell land sold on credit and took from the purchaser bond and mortgage of the premises. The purchasers equity of redemption was after-wards sold and purchased by the executor: *Held,*that the executor could purchase the equity of redemption for his own benefit; and, that the *cestui que tmst*had no further interest in the land than a lien thereon for the amount of the bond.

Settlement with plaintiff's agent, purporting to be in full, held, to bar his bill for account.

Bill filed more than five years after settlement with trustee, *held,*barred by statute of limitations.

Plaintiff's wife was entitled, as *cestui que*trust, to funds in trustee's hands, to her separate use. Trustee settled with plaintiff, and paid him a balance due. The wife afterwards died, and then her infant child, the .sole remainderman of the fund also died, whereby plaintiff became entitled to the fund as heir of the child: Held, that plaintiff's claim for an account against the trustee was barred by the settlement.

BEFORE DARGAN, OH., AT SUMTER, JANUARY, 1856.

Dargan, Oh. Henry Britton, died 20th July, 1842. He owned about sixteen slaves and a valuable tract of land, known as the Bradford Springs tract. He left a will duly executed, by whieh he appointed three executors, namely — Leonard White, Jos. B. White, and Thomas M. Dick, of whom Leonard White alone qualified.

*272' The residuary clause under which this litigation arises, is as follows: “All the rest and residue of my property of every description, I will to be disposed of as follows: It is my wish that my executors sell all my visible property in such manner as they shall think most advantageous; out of the proceeds of which and with what money I may have in hand, and what may be due to me, I wish my debts to be paid, and the rest I give to my children by my second marriage, to wit: Alwin Sidney, Sarah Jane, and Susan Ann, to be put into their possession upon their respectively attaining the age of twenty-one years, or marrying; the share of Sarah Jane and Susan Ann to be to their sole and separate use, in case of their marriage, for their lives respectively, and after their death to their children; the issue of a deceased child, if any, taking 'by representation the share of such deceased child; but should any of my said children die before the time directed for the payment of his or her share, or part, it is my will that such part or share shall be divided according to the Acts now of force in this State for the distribution of estates of intestates.”

The plaintiffs are the residuary legatees. Sarah Ann, has intermarried with the plaintiff, Wesley W. Brunson: Sarah Jane is still an infant and sues by her next friend the said Wesley W. Brunson.

By a deed bearing date the 30th October, 1846, the said Leonard White, acting under the power given under the will, conveyed to Julius J. DuBose in fee, the said Bradford Springs tract, said to contain one thousand two hundred and forty-six acres, for the consideration of four thousand five hundred dollars. ’ The payment of the purchase money was secured by a bond of Julius J. Dubose in the penal sum of nine thousand dollars, and a mortgage of the premises, but no part thereof was ever paid, by reason of the insolvency of DuBose.

After the execution of the said mortgage, by virtue of sundry writs *oí fieri facias*in his hands against said DuBose, the Sheriff of Sumter District levied upon the equity of redemption of said *273DuBose in the Bradford Springs tract of land. The same was sold by the Sheriff on the 7th February, 1848, and Leonard White became the purchaser for the sum of twenty dollars. He caused the Sheriff’s deed to be made to his son William N. White, and on the 30th June, 1849, William N. White, by a deed bearing that date, conveyed the equity of redemption for the sum of twenty dollars to Leonard White. After the sale by the Sheriff, Leonard White took possession of the property, cultivated portions of it and made crops, and in every respect used it as his own until the 7th July, 1849, when, in considera-, tion of five thousand six hundred dollars, he sold and conveyed the same to “the Bradford Springs Female Institute Company,” a body corporate, of which he himself was a stockholder.

Thereupon the said Company took and retained possession of the said land until the 28th July, 1853, when they sold and conveyed five hundred and nineteen acres of the same to Gilbert Morgan, for the sum of ten thousand dollars; of which the greater part still remains due. The sale to Morgan embraced all the improvements by which I roughly estimate the land to have increased to at least double its value, since the first sale to Julius J. DuBose. Morgan himself since his occupancy, has expended several thousand dollars in improvements upon the place.

In addition to the foregoing facts, which are not controverted, the plaintiffs charge that on the 2d January, 1847, thirteen of the slaves of the testator were sold by Leonard White, that three of the slaves were not then, nor have been since sold; that the remaining thirteen slaves were in fact, bid off by Leonard White for his own use, at the sum of four thousand three hundred and eighty-one dollars; a sum much below their real value, and, that the said Leonard White caused the name of his son-in-law, Thomas M. Dick, to be entered on the sale book as purchaser of twelve of said negroes, and the name of J. S. Bartlett, another son-in-law, to be entered as purchaser of another of *274said negroes; and, that the said Leonard White thus became the purchaser of the said negroes at his own sale, without complying with the provisions of the Act of 1849.

The plaintiffs further charge that the said executor possessed himself of other goods and chattels, &c., of his testator, which remain to be accounted for; that the testator’s debts have been fully satisfied, and, that they are now entitled to receive their shares under the residuary bequest of the said will.

They pray that the sale of the said land and negroes be set aside as null and void ; that the Bradford Springs Female Institute Company, and the said Gilbert Morgan, do account for the rents and profits of the said land while in their possession respectively, and, that the slaves be sold, and the executor of Leonard White do account for the hire and profits of the same, and, that the proceeds of said sales, and the rents and profits of said land and negroes be divided among the said plaintiffs, and for a general account and relief.

The statement of the several answers will be noticed hereafter, when they become material in the consideration of the evidence.

The three negroes stated in the bill not to have been sold by the executor White, and to have been retained by him, were of no value, and were offered for sale without a bid. Two of them, Nancy and Hardtimes, were superannuated, and Ben, though not old, was palsied and worth nothing. They are dead now; or if living would be a charge upon their owner.

The charge in the bill that the other thirteen slaves were actually bought at the sale by the said Leonard White, is positively denied in the answer, and does not appear to me to be sustained by the proof. The sale bill shows that one of the negroes, Pedro, was sold to J. S. Bartlett, and the residue, eleven in number, were knocked off to Dr. Thomas M. Dick. The defendant, the administrator of White, states, that the sale was *Iona fide,*that Bartlet and Dick executed their bonds to Leonard White for the amount of their bids for the negroes *275purchased by them respectively, and that afterwards the said White became the purchaser from Dick, of the negroes purchased by him at said sale, with the exception of Tom and Caroline, who were and are still retained by the said Dick. There is no proof that Tom and Caroline were ever after the sale in the possession of the defendant’s intestate (White), or that Pedro, purchased by Bartlett, ever was. The sale is not impeached for want of being fairly conducted, the prices were full, and there is no circumstance to cast suspicion upon the sale, save the after possession by the executor of a large portion of the negroes. This has been satisfactorily explained, if the statements of the answer be true: and there is not a fact in evidence that may not co-exist with the truth of the answer. Though an executor may not purchase at his own sale unless he complies with the provisions of the Act of 1839 (which was not done in this ease) yet, if a stranger to the trust acquire a good title at such sale, he may undoubtedly transfer (if there be no collusion) his title to the executor for his personal benefit, discharged of the trust. The Court, however, would look with great jealousy at such a transaction; more particularly where the transfer of bids or title takes place very soon after the sale. Regarding the case in this jealous point of view, I do not perceive in the evidence anything to impeach the character of the transaction as explained by the defendant’s answer. There was one thing that excited my surprise at the trial. Mr. Bartlett and Mr. Dick were both within call. The former was present at the trial. Why were they not examined ? I can imagine that from motives of delicacy the defendants might refrain from calling them if they could otherwise sustain themselves. But why did the plaintiffs not put them upon the witnesses’ stand? Prom the considerations foregoing the Court is of the opinion that the claim of the plaintiffs as respects the vacating the sale of the negroes must fail. I now pass on to the consideration of the questions raised in regard to the land.

In the first place, the will of Henry Britton did confer upon *276his executors the power to sell his land. Of the three persons named as executors, only one qualified, namely: Leonard White, defendant’s intestate. Where lands are devised to be sold by the executors, it is necessary that all the qualified executors should unite in the execution of the conveyance. At common law, the rule was the same where some of the executors did not qualify and others did. Where some qualified, and others (one or more,) did not, those who qualified could not execute the power. But by the Statute 21 Henry the 8th, 2 Stat. 257, where there are several executors, those who take upon themselves the execution of the will are declared to be competent to execute the powers conferred by the will to sell and convey lands.

The sale of the Bradford Springs tract to Julius J. DuBose by White the executor of Henry Britton, was made under competent authority. The power was legally exercised and the sale valid. The price agreed to be paid (four thousand five hundred dollars) was full and fair, as the property stood at that time, and probably at the present, but for the subsequent improvements. It is not pretended that this sale is impeachable for any cause whatever. The sale being valid, the property was changed. The residuary legatees of Henry Britton no longer had any interest in the land, except as to the mortgage. Their sole connection with the land was through that instrument, which was a security merely. Their claim was transferred to the purchase money, with the interest that might accrue. Thus stood the case when DuBose’s equity of redemption was sold by the Sheriff.

When Leonard White sold and conveyed the land, he was free and discharged of all his fiduciary relations as to said land. He was thenceforward a trustee as to the fund arising from the sale of the land. As to the land itself he was as any stranger. There is no doubt he may have bought it from DuBose at a greater or less price than the latter gave for it, and for his own benefit. If he could have become the purchaser of the entire estate of DuBose in the land, what impe*277diment could exist in his becoming the purchaser of LuBose’s equity redemption ?

Under a sale to foreclose the mortgage, when the mortgagee becomes the purchaser of the mortgaged property, he purchases the equity of redemption, and thereby extinguishes the mortgage debt. MeGlurevs. Wheeler, 6 Rich. Eq., 343. This is the result wherever the same person is the mortgagee and the purchaser of the equity of redemption. It must be so, to prevent the grossest injustice. Otherwise the mortgagee, having thus become the owner of the fee, would have his debt still open against the mortgagor, and would be entitled to enforce it against his other estate.

When Leonard White became the purchaser of the equity of redemption, he thereby extinguished the mortgage debt. He was then as trustee chargeable for the purchase money as for cash in hand. He purchased the equity of redemption for himself as a stranger might do, and was personally entitled to the benefit of the contract. The legatees óf Britton had no other interest in this transaction, than that the purchase money due by DuBose should be secured to them. But inasmuch as White stood on the mortgage in the character of a trustee, I think that the land in his hands as a purchaser, would be subject to a lien for the payment to the *cestui que trusts*of the sum agreed to be given by the mortgagor and the interest. To this extent he must be considered as having bought for the benefit of the *cestui que trusts.*This lien would remain impressed upon the land in the possession of any who might be purchasers from or through White with a knowledge of the equity. This latter view might be very material, if White was insolvent. But as his estate is amply good, it is of no practical importance.

My judgment therefore is, that Leonard White as executor could only be responsible for the purchase money which he obtained for the land, namely, four thousand five hundred dollars, with the accruing interest. My judgment further is, that when he subsequently became the purchaser of said land in his own *278right, a lien attached upon it to the extent of said purchase money and interest, and that this lien remains upon the land in the possession of purchasers from White, with notice of this equity. The Bradford Springs Female Institute Company, a defendant in the case, was charged in the bill with notice of the plaintiffs’ equity. This is not denied in the answer. It must, therefore, he considered as admitted. So much, therefore, of the said land as remains to them, undisposed of to third parties, would be subject to this lien ; and is hereby declared to be so subject, the estate of Leonard White being primarily liable.

This company sold to the other defendant, Gilbert Morgan. He was charged with, but denies notice, and notice has not been brought home to him.

When one purchases property from a trustee, having the legal estate, for valuable consideration without notice of the trust, he takes the estate discharged of the claims of the *cestui que trusts.*By the payment of full value, without notice, his equity is equal to that of the beneficiaries of the *trust;*and where the equities are equal, the legal title will prevail, and not be disturbed.

Where the purchaser under the like circumstances has not paid the purchase money before a bill is filed in behalf of the *cestui que*trusts, or before a notice of their equity, the purchase money in his hands, or so much thereof as remains unpaid, is subject to the equity of the *cestui que trusts.*This title however remains good, it is only the purchase money unpaid at the time of notice which the Court assumes to direct and control, and will decree, that, instead of being paid to the trustee who has abused his trust, it shall be paid to them to whom in equity it belongs.

In this case Gilbert Morgan had no notice of the equity which attached upon the property in favor of the plaintiffs prior to his purchase, and if he had then paid the purchase money to his vendors, he would be entitled to have the bill dismissed *279as to him. But he bought on a credit, and the greater part of the purchase money is still due. And so far as the same is unpaid, and as to the portions thereof that he has paid since the filing of the bill, the said purchase money is subject to such claim as the plaintiffs or either of them may have on the estate of Leonard White arising from the sale of the Bradford Springs property in the way of a secondary liability — the estate of the said Leonard White being primarily liable. And whatever payments the said Gilbert Morgan may make on account of his secondary liability, as herein declared, shall go to his credit on his debt due to his co-defendant, the said Bradford Springs Female Institute Company. And if a resort to this secondary liability of the said Gilbert Morgan should hereafter be found necessary or important, the party entitled to such remedy shall have a reference to the' Commissioner to ascertain the extent of the secondary liability according to the principles of this decree. I am obliged to decide these questions, as they arise on the pleadings and evidence; though I plainly perceive that the decision of the court on this branch of the case will prove practically unimportant, as from the views I have taken of other branches of the case the indebtedness of the estate of Leonard White will not be large, and the said estate will be abundantly sufficient to satisfy the same.

I pass on to the consideration of other questions that have been raised. The defendant Lewis, the administrator of White, as respects the claim of Alwin Sydney Britton, has pleaded in bar a settlement in full. To this claim he has also pleaded the statute of Limitations.' Both the pleas are sustained. Alwin S. Britton had removed from the State of South Carolina. Anthony White was his agent. On the 16th February 1848, a settlement was made between Leonard White and Anthony White as the agent of Alwin S. Britton, of all the claims of the latter in the estate of his father Henry Britton, including the sale of the Bradford Springs property to Julius J. DuBose. There was a balance in favor of Leonard White of five hundred *280and ten dollars and thirty-six and three-fourths cents, which was subsequently paid by Alwin S. Britton. The said Alwin S. Britton was of age on the 6th June, 1844. This is conclusive. If more were wanting, and supposing that the settlement was erroneous, or made upon erroneous principles, and supposing that it was at the'time not obligatory upon Alwin S. Brit-ton, the statute commenced to run from the date of the settlement (the 16th Feb’ry, 1848.) The bill was filed the 7th April, 1854. The claim of the said Alwin S. Britton is barred. On both grounds the estate of Leonard White is not liable to account to the said Alwin S. Britton. It is so ordered and decreed.

To the claim of W. W. Brunson, and Sarah Ann, his wife, (formerly Sarah Ann Britton) the defendant Lewis, the administrator of White, pleads in bar a settlement in full. This settlement bears date the 12th January, 1852 :■ Sarah Ann was of age on the 15th of June, 1851. She had also intermarried with an adult. Her husband executed the receipt for the balance on settlement three hundred and twenty-two dollars and sixty-four cents. The settlement embraced all the claim of the said Sarah Ann in the real and personal estate of her father the said Henry Britton. In this settlement Leonard White accounted for the land at the price obtained from Julius J. DuBose. There are no grounds upon which this settlement can be opened. And if there were, none are alleged in the bill, and without a specific allegation by the plaintiffs in their bill of the grounds upon which they claim to have the settlement opened, the court would not grant relief. *Porter*vs. Gain, McMul. Eq. 81. These plaintiffs have alleged no settlement, but have prayed for an account as if no settlement had been made. In the opinion of the court, the settlement is a bar to the claim of W. W. Brunson and wife. It is so ordered and decreed.

The other plaintiff, Susan Jane Britton, is entitled to an account. She was born on the 5th April, 1833. She was still *281an infant at the filing of the bill. It is not pretended that any settlement has been had with her. The administrator of Leonard White must account to her on the principles of this decree, and to the -extent of the liabilities of the said Leonard White as herein declared. It is so ordered and decreed. It is ordered and decreed, that the Commissioner examine and report upon the accounts. Eor whatever sum or balance that may thus be found due, it is ordered and decreed that the estate of the said Leonard White be primarily liable. If the estate of the said Leonard White should be found insufficient, the said Susan Jane Britton, as regards her claim upon the funds arising from the sale of the real estate, shall be entitled to have satisfaction out of so much of the Bradford Springs tract as remains in the possession of the Bradford Springs Female Institute Company, undisposed of by the .said company ; and also out of so much of the purchase-money agreed to be given by Gilbert Morgan to the said company as was unpaid at the filing of the bill. It is so ordered and decreed. And it is further ordered and decreed, that whatever amount the said Gilbert Morgan may pay, on account of his liability as herein declared, shall be applied as a credit on his bond given to the said company for the purchase-money of the said land.

And in respect to the said Alwin S. Britton, and W. W. Brunson, and Sarah Ann, his wife, it is ordered and decreed that the bill be dismissed.

The plaintiffs appealed, and now moved this Court to reverse so much of the Circuit decree as dismisses the bill in respect to the plaintiffs A. S. Britton and W. W. Brunson, and to modify the same in other respects, on the grounds :

1. The sale by the executor, Leonard White, of nine of the slaves of his testator, should have been set aside — it having been sufficiently proved that the purchase of said slaves was *282made by Mr. White himself, and not by bis son-in-law, Dr. Dick; and his Honor, it is respectfully submitted, erred in relying upon the answer of Mr. Lewis as evidence upon this point.

2. The power conferred by the will was not legally exercised in the sale of the Bradford Springs tract of land to Dubose.

8. The purchase by Mr. White of the equity of redemption in said tract of land was (and could only be) made by him as trustee and for the benefit of his *cestui que trusts;*it is at their option whether to treat said purchase as made for their benefit or not.

4. The defendant, Mr. Morgan, connot be protected as purchaser without notice and for valuable consideration. The very title deeds which he holds, show that he had notice, and he had not paid the purchase-money when the bill was filed.

5. The settlement made by Mr. White with the agent of the plaintiff A. S. Britton, then and ever since a resident of Louisiana, and until a short time before the bill was filed, a stranger to the facts, is no bar to the claim of the said A. S. Britton.

6. The said A. S. Britton’s right of action is not barred by the Statute of limitations. The settlement which is supposed to give currency to the Statute was made while the facts were concealed — it was made before Mr. White had acquired, by conveyance to himself, the equity of redemption of said tract of land — and the bill was filed within five years (the plaintiff being a non-resident of the State) after Mr. White took from his son, William M. White, a conveyance of said equity of redemption.

*2837. It is not contended that the amount paid the plaintiff, W. W. Brunson, on the 12th January, 1852, should not he allowed as a payment *fro*tanto, but it is respectfully submitted that said payment is no bar to the claim set up in the bill: — the payment itself was a breach of trust: — the so called settlement was made with a person not authorized to make one; and was, therefore, properly not noticed in the bill.

¿Spain, *Richardson^*for appellants.

Moses, *DeS'aussure,*contra.

The opinion of the Court was delivered by

Johnston, Gh.

I think the Chancellor has properly dismissed the bill as respects the claim of the plaintiff, Alwin S. Britton, and also as to the claim of Brunson, now the sole representative in interest, of Mrs. Brunson, deceased.

I am also of opinion that as to the claim of the other plaintiff, Miss Britton, the decree properly disposes of the matter of the negroes.

And I do not see much reason to differ from the result of the Chancellor’s decree as to the lands.

There is no doubt that the sale of the- lands to Mr. Dubose, transferred the title to the latter, subject to the mortgage.

There is much reason to doubt whether the executor purchased the equity of redemption of Mr. Dubose, when sold by the Sheriff. I should rather conclude he did not; but that it was bought by his son, and afterwards conveyed to Mr. White.

But when, — in whatever way he became the owner of the title, — the utmost that can fairly be insisted on is, that being mortgagee of the mortgaged premises, the legal operation of the mortagage was extinguished; but still there was an equity in his *cestui que trusts*to have the mortgage set up and *284enforced for satisfying the debt in which they are interested. The case of *Black*vs. Hair, (2 Hill Ch. 622,) would seem to imply that he might have bought the premises, even if sold under the mortage itself, if he paid a fair price.

Then, when he conveyed the premises to the Bradford Springs Company, which was done for a fair price — the title passed — subject, nevertheless, to the equitable lien of the *cestui que*trusts, under which he himself had held it. In this sale, computing interest on the debt of Mr. Dubose, still unpaid, with annual rests as provided for in the contract with Mr. Dubose, — it appears that he made a very trifling profit,— if any.

But taking it to be correct, that the equity of the *cestui que trusts*was only for this debt, then let us look to the effect of it.

I think the ' decree properly throws the primary responsibility on Mr. White’s estate, to make good the mortgage debt to his *cestui que trusts.*

Then, the equity of the mortgage, in the next place, attends the land in the hands of the Bradford Springs Company ; they having notice when they bought.

But then, this company alienated portions of the land. I think the recitals of the deeds under which Mr. Morgan acquired title to a portion, were notice to him, — even if by payment of the purchase-money, he were entitled to rely on the plea of purchase without notice. The deed to Mr. Dubose is recited, which obliged Mr. Morgan to look into his title, and then the mortgage being on record, the registry affected him with notice of the incumbrance.

But the law is well settled that the portion purchased by Mr. Morgan is not equitably liable, until that portion retained by the company be first subjected.

It is true the company may have subsequently aliened other portions to persons not impleaded in this suit. But still, Mr. Morgan has a right to ask that before he is made liable, (or rather his land,) these other persons be brought in. The *285decree will then be (if all of them are equally affected with notice, and if the primary responsibility of Mr. White’s estate prove unavailing) that the lands in the hands of the company, and its different alienees, be subjected — by taking hold of the retained land first; and proceeding step by step, until the first alienee be reached. The liability is in the inverse order of the alienations.

It is my judgment that the decree be affirmed, except as modified by the opinion I have expressed; and it is so ordered.

Dunicin and DaRGAN, 00., concurred.

Wardraw, Oh.

I concur in the decree, except that I think White substantially bought the land with the trust funds ; and that the *cestui que trusts*should have the benefit of the profits made.

*Decree modified.*