[Present, Chancellors Rutvedge, James and Tnojirsorr.]

#### Charles Lining, vs. R. H. Peyton and others.

A purchaser of land, held in trust, to certain uses, with proviso, authorizing’ a sale, and re-investment ofthe purchase money, to the same uses, is notbound to see to the application ofthe purchase money to the purposes ofthe trust. Atrustee directed to be changed in the manner prescribed by law.

THE bill stated, that Ann Peyton, the wife of the defendant, was entitled under the will of her first husband, *376J. Stobo, to an estate in fee, in a tract of land, called Arch-in St. Paul’s Parish, containing 694 acres. And she agreeci to and joined with her present husband in selling and conveying the same, (through a public sale by the sheriff) to Dr. John Hams ay, on condition, that the purchase money arising from the sale should be applied to purchase a tract of land of equal value, to be conveyed in trust, to such uses as are therein set forth. That in pursuance of such agreement, the said R. H. Peyton, purchased of Charles Freer, a tract of land, called Bloch Island, in St. Paul’s Parish, which the said Freer, in consideration of 1900/. conveyed to Joseph Peace, his heirs and assigns, in trust, for the sole use of Ann Peyton, during her lifetime, and upon her death, to the use -of the said R. H. Peyton, during his life, and upon their death, to the use of the heirs of the said R. H. Peyton, and Ann *Peyton;*with other uses, and for other purposes therein stated. And there was a proviso in said deed, that the said R. H. Peyton and Ann his wife, might change said trustee; and might sell and convey the said tract of land called Block Island, to any person they pleased: “ Provided the proceeds of Such sale should be immediately laid oüt and vested in the purchase of some other estate, or property of equal value, either in lands or negroes, or public funds, or bank shares, which should be conveyed and secured upon the same trusts, and to the same uses and purposes, as the lands and premises above described, were subject to.”

MAY, 1806.

That the' said R. H. Peyton, and Ann his wife, in pursuance of said powers, had proceeded to change the trustee, & had appointed, by deed duly executed J. S. Fowke, to be the trustee, in the room of Joseph Peace, who had consented thereto, and the said J. S. Fowke had accepted said trusteeship.

That the said R. H. Peyton, and Ann his wife, had also thought it adviseable to sell the said tract of land called Block Island, and that the proceeds should be laid out in the manner, and to the uses prescribed in the said deed; *377and *they,*together with the new trustee, J. S. Fowke, had by proper deeds conveyed the same in fee simple, to the complainant, C. Lining, for the sum of g>15,000. That the said Charles Lining had paid $8,000 in cash, and secured the remaining $>9000 by bond and mortgage of the land. That the j§6000 cash, paid by the said Charles Lining, had been invested in the purchase of lands and slaves, and conveyed to the trustee, to the uses, stated in the original deed *from*Charles Freer.

That doubts have arisen, whether upon the change of the trustee aforesaid-, the estate in the Block Island tract of land, was so vested in J. S. Fowke, the new trustee, as to enable him to convey a fee simple estate to the complainant, and whether the original trustee Joseph Peace ought not to have joined in the said deed of cónveyance¿ The bill therefore prays for relief, and that the court would direct the conveyances to be perfected,’ so ás to vest a full, clear and indefeasible estate in fee simple in said land in the complainant. The bill also submits to the judgment'of the court, whether it is the duty of the complainant as purchaser of the Block Island land, to see to the appropriation of the consideration money to the purposes of the trust estate, it having been suggested that it was the duty of the purchaser to see to such appropriation and investment, otherwise he might not be safe in his said purj chase, and prays that the court would make such orders, and give such directions in the premises, as will secure the complainant. v

The defendants, R. H. Peyton, and Ann his wife, Joseph Peace, the former trustee, and J. S. Fowke, the present trustee, admit all the facts , stated in the complainant’s bill, and submit to the court that the deeds ahead}? made and executed, are sufficient to convey and assure the Block Island land in fee simple to the *complainant;*but they are willing to execute any other deeds or conveyances which may be thought necessary for that purpose. And the defendants deny, that the’ complainant -is bound to see’to the supplication of the purchase money *to*the purposes of the *378trust, or that he ought to intermeddle therein *;*the same being the duty of the trustee and the *Cestuis que use.*

The answer of the minor children of R. Eh Peyton, and Ann his wife, by their guardian, states their ignorance of these transactions, and submits their rights to the protec - tion of the court.

Mr. Lining appeared in *propria persona.*

And Mr. Parker for defendants.

The case came to a hearing, and afterwards Chancellor Rutledge delivered the decree of the court:

This we believe to be a new case, no precedent having been adduced to shew that it ever has been determined in this country anterior to the revolution, which is more than probable it never was, as the proceedings of the court under the royal government were extremely relaxed; and since the establishment of this court in 1 f84, we are pretty certain the' question has never been formally discussed. Whatever may be the law in Great Britain on this subject, from which our jurisprudence has been principally derived, there are a variety of local circumstances which render it not only highly improper, but almost impracticable that it should be adopted in this country.* The case before us proves the position, for scarcely would a purchaser be found of trust estates who would be inclined to be saddled with the inconvenience and embarrassment of see. ing that the purchase money was applied to the purposes *379of the trust. It has never heretofore been determined that he should, and we will not now establish a precedent, for it might tend exceedingly to embarrass, if not shake to the foundation, the titles of very many persons who have heretofore purchased at the sales of the trust estates without the remotest idea of responsibility, as to the application of the purchase money. We do not say that where property has been conveyed in trust for the payment*of debts, or other specific purposes,- that it is not the duty as well.as the interest of purchasers at such sales to attend to the right appropriation of the money ; but in cases like the present, and others that may be assimilated to it, purchasers are not, and ought not to be considered in the same light as trustees, and intrude themselves on the parties to see that the purchase money is applied as the trust deed directs, because the *cestui*que' trust joining in the conveyance-with the trustee, it is his particular duty as well as his interest to see the trust money properly applied, and if he finds the trustee disposed to misapply it, he can Immediately apply to this coiprt for redress. The court are therefore of opinion and decree, that in this case the complainant is not obliged to attend to the disposition of the purchase money of the estate in bill mentioned, conceiving that the *ce&tuisque*trust, who are parties to the conveyance, are fully competent, and the only persons who ought to interest themselves in the business. The trustee not having been changed in the manner the law directs, *380that should be done, and the conveyances to complainant be then made as the deed directs, or the original trustee may join in the conveyance.

*

Note. — The question in this case, whether the purchaser was bound to see to the application of the purchase money, to the purposes of the trust, arose from some decisions in the English Court of Chancery, which however had never been acted Upon in this country, though they had never been denied to be the law of the court on the subject, in cases to which it might apply.

The general doctrine appears to be as follows : That if an estate be devised by will or directed or authorized by deed, to be sold for the payment of debts, which are enumerated or stated in a schedule, there, unless the trustees are authorized to receive the money, and g-ive receipts, the purchaser is bound to see to the purchase money being applied to the payment of those debts. But he is not bound td see to *379the application where the trust is to pay debts generally. See the rule laid down and illustrated, and the exceptions made in the fallowing' cases. Abbot v. Gibbes, 1 Equity Cases abr. 358. Spalding v. Shalmer, 1 Vern. 301, Dunch v. Kent, 1 Vern. 260, Rogers v. Skillicorne. Ambler 188, Lloyd v. Baldwin. 1 Ves. sen. 173, Ithell v. Beane, 1 Ves. sen. 215, Smith vs. Guyen. 1 Bro. C. C. 186, Tenant v. Jackson; Cotton v. Everall, and Langley v. Oxford. 1 Bro. C. C. 186. (n. to 3d edition.) Jebb v. Abbot. Butler’s notes to 14th edit, of Co. Litt. 290 Williamson v. Curtis. 3 Bro. C. C. 96, Jenkins v. Hiles. 6 Ves. 654, Braybook v. Inskeep. 8 Ves. 417, M’Queen v. Farquhar. 11 Ves. 467, Balfour v. Welland, 16 Vesey, 151. See the doctrine well stated, and the cases collected, classed and reconciled in Sudgen’sLaw of Vendors, Chapter 12, p.352.