#### *Zachariah Rawls*vs. *William Wall and another.*

Bill to set aside a purchase made by an agent of his principal’s property at sheriff’s sale: the Circuit Chancellor refused to set aside the purchase, but ordered defendant to account for “the true value” of the *property:*— Seld} that this meant “the true yaluo” at the time of the sale; and plaintiff having acquiesced in the deeree and acted under it, his appeal, after an adverse report from the Commissioner on the question of value, was refused.

*Before*Wardlaw, Ch. *at*Fairfield, July, 1851.

Wardlaw, Ch. This is a bill by the principal against his agent, to enjoin the execution of a judgment of the agent against the principal, and to set aside certain purchases of the principal’s estate by the agent, and for a general account of the agent’s transactions in the affairs of his principal. On November 13, 1844, Z. Rawls confessed a judgment to Wm. Wall for $>1,300, with interest thereon from November 10,1844, and on the same day Wall gave Rawls a written acknowledgment, that the judg*144ment was intended as security to Wall for several bail bonds he had signed as surety for Rawls, and for various notes held by him on Rawls, and for several notes of Rawls to other persons, in which he was surety. On the same day, Rawls executed a deed, constituting Wall his attorney, to demand and receive all money due, or to become due to him in this State — to pay all his just debts, and to take charge of his property, both real and personal, during his absence from the State, and to act for him generally in relation to his business here. The judgment and power of attorney were given by the plaintiff in contemplation of his absence for a time from the State; and the general arrangement between the parties was, that plaintiff was to furnish the defendant with $300, for the satisfaction of plaintiff’s creditors having older liens, and to deliver to him plaintiff’s property and claims here ; and that defendant was to protect plaintiff’s property, until plaintiff’s return from the West with means. The plaintiff soon afterwards left the State. Before his departure, he hired his land and three negroes, and some chattels, for 1845, to one Carter, for five-sixths of the crop which should be made, — he delivered to the defendant chattels and credits to a considerable amount in value, but, so far as appears, did not pay to him the $300, according to stipulation. Carter, who is since dead, did not remain the whole year at Rawls’s place, having been informed by the sheriff that the property must come to sale under the executions, in the course of the year; and defendant rented out the place to one Thomas Barber, for $75, and hired out some of the negroes. The defendant also disposed of nine bags of cotton, two horses, a mule, a cow and calf, a wagon and harness, some hogs, two axes, some corn and fodder and small notes, belonging to the plaintiff, for sums sufficient, if so appropriated, to satisfy the elder liens upon plaintiff’s property; but, as defendant alleges, these sums were applied to the discharge of other liabilities of the plaintiff. On November 5, 1845, the Sheriff, not acting, so far as appears, at the instance of defendant, sold the land and two negroes belonging to plaintiff, under executions, to the defendant, for the aggregate price *145of $450, which, in the opinion of the witnesses, was not more than half the value. Most of the bid of 'defendant was applied to the satisfaction of older executions. Before and after the sale, the defendant declared that he would allow the plaintiff to redeem the property, upon the plaintiff’s repaying his advances; and all that was owing to him by plaintiff. At the time of the sale, the impression prevailed that Wall was purchasing for the plaintiff, and one witness, Harrison, forebore to bid on that account; but there was no proof that Wall declared that he was so purchasing at the time of sale. After Rawls’s return to this State in 1846, he and defendant attempted some settlement, but disagreeing, defendant gave notice that he should hold the property as his own, if his claims were not promptly'settled, and afterwards sued out a *ca. sa.*against plaintiff. This bill was filed November 12, 1847, to enjoin the execution of the plaintiff, and for a general settlement.

The case of the plaintiff is not very strong. He failed in his promise, in the first instance, to furnish money to discharge the elder liens; and since his return to the State, he has not used proper diligence in his efforts to redeem. But time is not usually regarded in this Court as of the essence of contracts; and purchases by agents, from the principal, should be scrutinized with vigilant suspicion. Story Eq. § 315, 316. The defendant is liable to account generally for his agency in the affairs of the plaintiff, and he is not entitled to make profit of a bargain, to which he was helped by the fiduciary relation he sustained to an absent principal, and by his equivocal declarations as to the character in which he purchased, discouraging competition.

It is ordered and decreed, that it be referred to the Commissioner to inquire aird report as to the accounts between the parties, in which accounting the defendant must be charged with the true value of the land and slaves bought at sheriff’s sale, and of all the property and *choses*of the plaintiff received by him, and be discharged for all expenditures, debts and liabilities on account of the plaintiff. Costs to await the accounting.

*146In obedience to the above decree, the Commissioner submitted his report, dated July 1, 1852, as follows :

“ To use the words of the Chancellor in his decree in this case, this is a bill ‘filed by a principal, against his agent, to enjoin the execution of a judgment of the agent against the principal, and to set aside certain purchases of the principal’s estate by the agent, and for a general account of the agent’s transactions in the affairs of his principal.’

“The Chancellor’s decree settles all the questions of law made by the pleadings, sets up the purchases made by the defendant at a sale of the plaintiff’s property, made by the Sheriff of Chester District, on the 4th November, 1845, under sundry judgments in force against plaintiff at that time, and closes by a reference to the Commissioner in the following language:— ‘ It is ordered and decreed, that it be referred to the Commissioner to inquire and report as to the accounts between the par ties ; in which accounting, the defendant must be charged with the *true*value of the land and slaves, bought at sheriff’s sale, and of all the property and choses of the plaintiff, received by him, and be discharged for all expenditures, debts and liabilities, on account of the plaintiff.’

“ On the 13th November, 1844, the plaintiff confessed a judgment to the defendant in the sum of one thousand three hundred dollars. The defendant admits in writing at the time of the confession — ‘That the consideration of the said judgment is my liability for him, as security on several bail bonds, together with various notes, which I hold on said Zachariah Rawls, and several notes given by him to various persons on which I am his surety’ — In other words, the confession was given in part as indemnity. Therefore, in order to state the accounts between the parties, as directed by the decree, it must be determined what amount, if any, was due to defendant on this judgment, at some convenient period for the accounting. Plaintiff and defendant, in the bill and answer, differ so widely in their statements as to this amount, and their accounts were so badly kept on both sides, as appears from the exhibits filed, that *147the Commissioner would feel at very great loss to fix this amount, but for the testimony of the witness, Martin Reynolds, examined on reference, before the hearing. He testified, that he, soon after Rawls returned from the West, presented a statement or account to Rawls, in which Wall had charged him (Rawls,) with a statement of claims he held against him to the aggregate amount of $773 41 and in which he had given Rawls credit, the items stated, to the amount of $261 34; thus leaving a balance due to Wall, at that time, of $512 07. The witness testified, that when he presented this account to Rawls, he said the debts were correct, but that he thought that he was entitled to more credits than were allowed him therein, but could not recollect but a very few small items.

*“*This statement of accounts was offered in evidence and proved by the witness. To this evidence Rawls made no reply. The Commissioner’s judgment is, that at the time of the sale of Rawls’s property, by the Sheriff, 4th November, 1845, there was justly due the defendant, on this confession of judgment, about $500.

“At the hearing, some evidence was offered to shew thatthe property purchased at sheriff’s sale was bid off for less than its true value. This property was a small tract of land, and two negroes, one old woman, and a boy probably about two or three years old. This property was purchased by the defendant, and under the circumstances of the case, the Chancellor thought proper té refer it to the Commissioner to inquire whether it was sold for its *true*value or not. The whole property was bid off at $445, of which amount, only about $120 was applied to the confession, there being other older judgments in the office against this plaintiff at that time. Allegations of unfair conduct on the part of defendant, touching this sale and purchase, were made in the bill, but were denied in the answer, and stand wholly unsupported by evidence. The defendant, therefore, seems entitled to the presumption that the sale was a fair one, having been made by the proper officer, under executions unsatisfied against the defendant at law, and stands .free to insist, that the best evidence *148of the true value of the property, is the price at which it sold at a fair sale. Several witnesses wore examined on reference before me, who testified that this property was bid off by defendant, at less than its true value, and about an equal number testified on the other side, that Wall gave the full value of the property at that time.

“ The judgment of the Commissioner is, that the land and two negroes were sold for their full and true value at that time.

“ On the reference, plaintiff offered to prove *thepresent value of the*property, to which defendant objected. The Commissioner held that the inquiry must be confined to the time of the sale. That such was his construction of the decree.

“ Upon the conclusions arrived at in this report, I find the balance due to the defendant, William Wall, upon his said judgment against complainant, to be three hundred and eighty dollars, and interest thereon from the 4th day of November, 1845.”

The complainant excepted to the report.

Because the Commissioner has erred in not charging the defendant with the present value of the land and slaves, the subject of suit.

The cause was heard on the report and exception, at June Sittings, 1852, befqre his Honor, Chancellor JohnstoN, who made the following order :

JohNston, Ch. On hearing the report of the Commissioner in this case, and argument on the exception, it is ordered, on motion of Boyce, complainant’s solicitor, that the complainant’s exception be sustained, and that the report be re-committed to the Commissioner with directions to re-state the account upon the principles of this order.

The defendant appealed, on the ground, that his Honor, the Chancellor, erred, in sustaining the exception to the report of the Commissioner.

The complainant also moved to modify the decree of his Honor, Chancellor Wardlaw, so as to declare the purchases of complainant’s property, by defendant, void :

*149Because the defendant standing in a fiduciary relation to the complainant, his purchases, under the circumstances, were fraudulent and void.

*Hammond, McCants,*for defendant.

*Boyce,*for plaintiff.

The opinion of the Court was delivered by

Duktkin, Ch.

The object of this bill was to enjoin an execution which the defendant held against the complainant, and to set aside a purchase which the defendant had made of the complainant’s property at sheriff’s sales. The charge was, that the defendant was, at the time, the agent of the complainant, and that the property was sacrificed for half its value. The cause was first heard at July Term, 1851. The Chancellor) after reviewing all the facts, remarks, that “ the case of the plaintiff was not very strong,” but that purchases of this character should be scrutinized strictly; and concludes, by directing an account, in which the defendant should be charged, among other things, “ with the true value of the land and slaves bought at sheriff’s sale.” Under this decree, the parties proceeded with their references, and, at July Term, 1852, the Commissioner submitted his report, stating, among other things, that the property purchased at sheriff’s sale was a small tract of land and two negroes, one an old woman, and the other a boy, probably about two or three years of age, and that, after hearing the testimony, his judgment was, “ that the land and two negroes were sold for their full and true value at the time.” And that, on the accounting, the complainant was indebted to the defendant in the sum of three hundred and eighty dollars, with interest from 4th November, 1845; To this report the complainant excepted, because the Commissioner had erred in not charging the defendant with the *present*value of the land and slaves; and the exception was sustained.

It appears to this Court, that the Commissioner acted in strict conformity with the terms of the decree of July, 1851. If the complainant had been dissatisfied with the measure of justice *150then awarded to him, he was at liberty to have had that decree revised. But he acted under the decree, and witnesses were examined before the Commissioner, to prove that the property was sold, at sheriff’s sales, at less than its true value. On the preponderance of testimony, the Commissioner came to a different conclusion; and, on that issue, the complainant having failed,- he seeks now to reform the decree of 1851, in which he had acquiesced, and Uiider which he had acted, and thereby create a new issue for another inquiry before the Commissioner. This Court is of opinion that the exception should have been overruled, and the report of the Commissioner confirmed ; and it is now so ordered and decreed.

Johnston, Dargan and Wardlaw, CC., concurred.

*Appeal sustained. '*