Columbia, *Richland District.*

Heard by Chancellor Gaillard.

*asxzxxx,*

#### Peter M’Guire and wife, and others, *vs.*Henry M’Gowen and wife, Administratrix of John Compty.

A man who had married the widow and administratrix of an intestate, and acted on the estate, and was acting- guardian of the minor heirs, applied to the court of common pleas, for a partition of the estate, to one third of which his wife was entitled. The court ordered a division of part, and a sale of the remainder, as recommended by the the commissioners. At the sale, which was pubi ic, he became the pur. chaser of the principal real estate. That purchase being contested by the heirs, two of the judges were of op.nion, that he had a right to become the purchaser at a fair authorized sale, at a full price. A third *487concurred, on the ground that his having an interest, coupled with ths trust, authorized him to become the purchaser at such a sale. The fourth judge was of opinion, that he had no right to purchase at all. The court being divided on the particular circumstances of this transaction, (only four judges present,) the appellant took nothing by his motion. '

A resulting trust may be established by parol evidence.

In another ease the question arose, whether an acting executor, who had not qualified, could become the purchaser at an authorized sale of the personal estate of his testator, for his own benefit. He had an interest to about one fifth of the value, and applied to the court of ordinary for leave to sell, which was granted, though there were no debts, and the sale was made at an improper season when the crop wag growing. The executor purchased the whole ; but apparently at a full price. Two of the judges were of opinion that the sale ought to be set aside, on the broad principle of his incapacity to become a pur» chaser. A third concurred, on the ground-of the abuse of his authority, though having an interest he might becomea purchaser. The other two judges were in favor of the general authority to purchase; and of this particular sale.

This bill was filed by the children of the late John Compty, one of whose daughters had married Peter M’Quire, for an account of their father’s estate, and for the discovery of the title of their father to a certain lot of land in Columbia, which they alleged had been suppressed *;*and also to set aside a sale of a tract of land, on Broad River, a little above Columbia, and commonly called the ferry tract.

June, *1814*

The questions in this cause involved a great variety of matter respecting the accounts of the administratrix and her husband, their management of the estate of Compty, and charges against the children. But only two of the points in controversy furnish proper materials for a rev port. These related to the lot of land in Columbia, the title to which the complainants alleged liad been suppressed j and to the ferry tract,' which the complainants alleged had been improperly sold, and bought in by the defendant, Henry M'Gowan, at too low a price.

On these points the bill stated, that John Compty, the father of the complainant, was seised at the time of his death of a considerable real and personal *estate;*and dying intestate in February 1799, left a widow, who af-terwards, intermarried with Henry McGowan, and *twg**488minor children by a former wife, to wit, Charles Compty*, and a daughter Rebecca, who hath since intermarried '"'ith Peter M‘Quire. That the said John Compty in his lifetime, purchased a house and lot on Senate street in Qokmbia, and took possession under some title from tlm grantor; which the complainants charge came into the possession of the defendants, and hath been suppressed by them. That the widow administered on the estate, and took possession of the whole thereof: and after her intermarriage with Henry M'Gówan, they applied to the Court of Common Pleas fork partition of the real estate, and obtained a recommendation from the commissioners, for a sale thereof, which report was confirmed by the court, wheretípon the valuable tract of bind near Columbia, called the Terry Tract, was sold at auction, and purchased in by Henry McGowan, at a price below its intrinsic *value;*and be now claims the same as his own, though he held out to the public, that he, was purchasing for the heirs of John Compty generally ; by which he was enabled to purchase the land at so low a price.

The bill prays relief.

The defendant Mrs. MfGowafi, in her answer, admitted the statement of John Compty’s family to be correct j and that she administered on his estate; and on her marriage with Henry M‘Gowan, she delivered him the papéis and title deeds of the estate. That she known none of the particulars of the purchase by her husband M‘Gowan, of the ferry tract of land, except that he told her he had purchased it at a price which she thought exceeded the value. Siie never heard him Say he had bought in for Compty’s children. She' knew nothing of her own knowledge, of the purchase of the house and lot in Columbia, by her first husband, Mr. Compty; but-Was informed by him, that her father Mr. Stanly, had purchased it for her. She did not know of any bond to make titles for the house and lot.

The defendant Henry M‘Gowan', admitted the facld admitted by his wife in her answer. That after Ms intermarriage with the widow Compty, he acted on the estate of John Comply, and kept it together, and made re-*489guiar returns to the ordinary. He denies that the transactions relative to the affairs of the estate and the interests of the children therein, were done without a guardian to the children, for heÑñmself was their acting guardian ; and he presumed the commissioners appointed by the court would do justice to the children. That the son Charles Compty has approved the transactions relative to the estate since he came of age; and that the complainant Peter M’Gruiré, who married Rebecca Compty, has taken his share of his wife’s land, which was allotted to her in the partial division which was made of the real estate. That the defendant Henry M’Gowen became the purchaser of the ferry tract, at a public sale made by order of the Court of Common Pleas,- on Ms application for a partition, and the recommendation of the commissioners, that a sale should be made of it. That he became the purchaser at the price of §2,500, which he considered an extraordinary high price. Ho denies that at the day of sale, he gave out, or pretended, that he purchased the ferry tract of land for the children oí John Compty.

He also states, that with respect to the house and lob in Columbia, Fitzpatrick, at the instance of Mr. Stanley, made him titles 5 Stanley having purchased the lot for his daughter. He denies that he knows any thing of a bond of Fitzpatrick, to make titles to Compty, or that he ever knew of such deeds, or destroyed them.

At the hearing of this cause, much evidence was given, a great part of which had relation merely to the-pecuniary affairs of the estate, and have no application to the important points made in the case relative to the landed estate.

The evidence which relates to the ferry tract, is ex> iracted from tiie notes of the judge who tried the case ; and is also stated briefly in this decree,

John Wyclie — Says, he was present at the sale of Compty’s ferry. — M’Gowen told the witness he had purchased the ferry for Compty’s children. This was some short time after the sale. Upon being accused by Mrs. M’Gowen, that he intended to defraud the children *4900f Comply, he declared he did not. He thinks tha£ M’Gowen said after the sale, that the ferry was worth from *7*to 800 dollars per annum 5 but he did hot say whether clear of expences or not. — ("The Bale was in tbs latter part of the year 1803.)

Frazer — Says, he was present at the sale of Compty’b ferry-* — Soon after the sale, M’Gowen’s brother-in-law was finding fault with him,, for purchasing the ferry, say* ing he had given too much for it — .Upon which M’Gowen said he had purchased it for the children of Compty.

Bush — Stated, that the ferry in the year 1803, produced about $400 — The receipts of the ferry amounted to that sum. When he rented the ferry, he gave $ 300 per annum for it, and for the flat, rope and slave to attend it. He does not think the value of the ferry has en~ creased.

Col. Hutchinson — Says he was present at the sale? of Compty’s land — (Ferry tract.) M’Gowen bought it — » witness bid $2,000 for M’Gowen, who thereupon bid $500 more. Witness thought the ferry worth $1,500, and he would not give more for the ferry now than M’Gowen gave for it. M’Gowen has been in possession of the ferry ever since his purchase. He thinks the ferry worth more than the land now.

Mr. Bynum — Stated that he was present at the sale of ferry tract. It was the general opinion that M’Gowen gave more than the value of the property. He should have thought the ferry separate from the plantation of very little value at that time. Thinks Compty’s ferry, with the land, worth $5,000i.

Col. J. Taylor- — Stated that he had desired to owe Compty’s ferry, but he did not attend, the sale, as he was Jed to believe from some conversation, that it would sell for more than it was worth. He thinks $1,500 the value of the ferry and land at that time. The ferry then was of no great value. He does not believe that any man within fifty miles of Columbia would have given for it then what M’Gowen did. He believe* M’Gowen, iias been in possession ever since the sale.

*491So muclibf the decree as relates to the lands, isas follows:

The first point in this case relates to the proceeds of the lots of land in Columbia, sold by M’Gowen. These, the complainants claim, and to support their claim, they produced Mr. Stanley, who says that Maj. Compty told him he had purchased Everingham’s lot for him $ but for •his, Compty’s wife, Stanley’s daughter. The purchase was made from Fitzpatrick, who was Everingham’ft agent. Stanley says that after Everingham had made titles to Fitzpatrick, Fitzpatrick told him (Stanley) that he, Fitzpatrick, was ready to make titles according to his obligation. A paper was also produced in evidence, and signed by Fitzpatrick, dated in June, 1799, in whieh he speaks of the lot which he had sold to Stanley. M’Gowen having married the widow Compty, titles for the lot were made to him. The lot was paid for by Compty. On this ground the complainants contend that there was a resulting trust in their favor. Where a purchase is made in the name of one person, and the purchase money is paid by another; there is a resulting trust in favor of him who made the payment.

Resulting trusts are saved by the statute of frauda and perjuries, and stand upon the footing they did before that act. Now, before that act, a hare declaration by parol would prevent any resulting trust. Here there was a trust declared, which is acknowledged by Stanley, consequently there is no resulting trust.

The second point relates to the ferry tract purchased by M’Gowen. The complainants contend that they aro entitled to the benefit of this purchase. This land was sold under proceedings in a writ of partition, and bought by M’Gowen at the price of 500. — The sale was ordered upon the return made by commissioner for the purpose of a division. M’Gowen in right of his wife was entitled to one third of the land, or the proceeds which should arise from the sale of it.

‘It is contended for the complainants, that the sale *ia*Told:

*492First,' — On the ground of irregularity in the proceedings in partition had in the Court of Common Pleas» If so, there is nothing to prevent the complainants from recovering in an action at law. I give no opinion as to these proceedings; if they are irregular, it isfor the Constitutional Court to correct them.

The Court of Common Pleas has concurrent juris* diction with this court in cases of partition, even where minors are concerned 5 and it is not for this court to re-' verse their acts. If the defendant, MGowen, had prac-tised any fraud at the sale, that would furnish a distinct ground of equity, which this court might proceed upon $ but no fraud appears in the transaction, and it will be time enough to make M’Gowen account for the profits of the land when complainants shall have established their right to it.

The second ground on which it is contended that the complainants are entitled to the benefit of this purchase, is, that M’Gowen was the guardian ad litem of the complainants-. This -ground is inconsistent with the first, for it waives the irregularity in the proceedings, and puts the complainant’s claim upon this proposition, that a trustee cannot purchase the estate of his cestui que trust.. It is unnecessary to notice the cases which were cited upon this point, as the principle upon which they turn, docs not apply here. The sale was made under the authority of the Court of Common Pleas. M’Gowen was entitled to a third of the lands, his wife’s share. -The sale was made for a division of the property, in pursuance of the recommendation of the commissioners, and was per* fcctly fair; and the land brought gl,000 more than it Was worth. The only witnesses who spoke of the value of it at that time, were Col. Hutchinson, and Col. John Taylor ,• and they concur in the opinion, that the value of it was Si,500.

Mr. Wycbe and Mr. Frazer say, that they have heard M’Gowen say, he bought the land for the heirs of . Compty. Wyclie heard him say so on his being accused by Mrs. M’Gowen, of intending to defraud Compty’s children 5 and Frazer, on being found fault with by hjs *493í&rother-in-law for making the purchase. Mrs. M’Govf1en in her answer, says, that when M’Go wen returned from the sale, he said he had purchased the land, at which she was quite dissatisfied; and well might she have been so, for Col. , Taylor says, that no man within fifty miles of Columbia would have given for it what he M’Gowen did. M5 Go wen’s subsequent acts do shew that he purchased for himself; and it would eoepose his con-4uct to the suspicion of unfairness to suppose otherwise. Col. Hutchinson, as M’Go wen’s agent, bid for the land $2,000, and upon this bid, M’Gowan bid $500 more. As M’Gowan was entitled to a third of the proceeds of the sale of the land, if he were acting for Compty’s children, he should not have bid upon the bid of his agent.

The l’ent of the ferry paid to M’Gowan before the partition must be accounted for. The commissioner must make up the accounts according to the principles contained in this decree. 1

Theodore Gajixaud.

From the decree of the judge holding the Circuit Court an appeal was made, on the following, grounds, applicable to- the important points of the case relating to the land:

First, — because his honor erred In decreeing on the parol evidence of Stanley, as to the declarations of Comply, when Stanley himself testified that Hie contract of purchase was in writing, which he had seen ■ with defendants since the death of Compty, and which they ought to have produced, or the conclusion in law and equity ought to have been against them.

Second, — 'Because, although the defendant answered that-there was no bond nor other writing respecting the purchase, within their power or knowledge, yet they produced on the trial a paper signed by Fitzpatrick, in 1799, long after Compty’s death, which recites the original contract, which shews that they had interfered and altered the. contract ; which should have induced his honor to have compelled the- production of the original, or to ..have concluded against defendants.

*494Third, — Because his honor decreed that the pardS declaration made by Compty to Stanley, was sufficient' in law to pass his interest in the said house and lot tc Mrs. Compty.

’ Fourth, — Because the plaintiffs proved a title in themselves to the ferry plantation, and defendants could not prove that title removed from plaintiffs, by reason of there being no record in the pretended partition.

Fifth, — That if the record liad been good, yet plain* tiffs ought to have the benefit of the purchase, according to M‘Go wan’s own declarations, from the manner of purchase, and from the length of time before he charged him% self with the land, and from the circumstance of his ne« ver getting the sales ratified or confirmed by the court, whereby to perfect a title in himself: And moreover, from both defendants’ answers, in which they swear, Henry MeGowan, that he never said he bought the plantation for the children, and Mrs. M‘Gowan, that, she never heard him say so j both which were directly contradicted by Wyche and Frazer.

Sixth, — Because his honor has said, that the complainants have a remedy at law for the recovery of their rights to the ferry plantation, although this court has a concurrent jurisdiction with the Court of Common Pleas, in partition, which seemed to have influenced his opinion with regard to the ferry tract.

The cause came to a hearing in the Court of Appeals, and was fully argued.

The Chancellors differing in the .views which they, took of the questions under discussion, delivered their opinions separately.

I have given tills c.ise further consideration, and am satisfied with the decree I pronounced in it, in the Circuit Court. The evidence of Wyche and Frazier has made some impression. Their evidence is, that they heard M’Gowan say, he bought the land for the heirs of Compty. This declaration was made to the witnesses separately. ■ Loose declarations made many years back, are not much to be relied on, where they are not supported by other evidence. The declarations in this case do not, I think *495-deserve that any weight should be given to them. The occasions on which they ware made, suggest the purpose intended by them. Wyche says he heard M’Gowan say so, on his being accused by his wife of intending to defraud Compty’s children. Frazer says he heard him say so on his being found fault with by his brother-in-law, fer making the purchase. These declarations shew too, that Mrs. M’Gowan and Mr. M’Gowan’s brother-in-law both considered him as having purchased for himself; and Mrs. M’Gowan’s answer confirms this, for in it she says, she was dissatisfied with M’Gowan for having made the purchase. There is an inconsistency in tvhat Wyche says passed in his presence, for if the purchase were a bad one, and certainly it was generally so considered at the time, and Mrs. M’Gowan was displeased with her husband for having made it, as she believed he had for himself, the accusation of intending to defraud Compty’s children, who by the bye were not hers> Seems unaccountable.

This charge would have been better founded had the purchase been made for the children, as it cost one thousand dollars more than two very good judges of its value thought it was worth *;*and as M’Gowan having, by his agent Col, Hutchinson bid §2000, bid on that sum §509 more. M’Gowan had no right to buy for the children of Compty. Col. Taylor was not at the sale j he wished to get the land, but understanding that M’Gowan would give for it more than he thought it was worth, he Con-cludted that his attendance at it would be useless. At the sale M’Gowan was considered as bidding for himself j and his acts in the whole course of his administration of Compty’s estate, shew unequivocally that he made the purchase on his own account. But he was the guardian of Gompty’s children, appointed by the Court of Common Pleas to represent them in the division of their father's estate; and being so, it is said he could not purchase for himself. Why ? Because a number of cases s.ay that a trustee shall not be allowed to purchase the estate of his cestui que trust. Tifiáis a correct princi-plej laid down as broadly as it is j but it does not apply to *496sales made under the order of the Court of Commoc Pleas, for division among parties interested in estate,?» That court-has concurrent jurisdiction with the Court of Equity on this subject; and the power of appointing guardians to enable it to bring all parties regularly before, it in cases of partition, is expressly given to it by an act of the Legislature. Having exercised jurisdiction in this case, and confirmed the report of the commissioners act. ing under their authority, this court is not competent to revise their acts. What is done in that court, may become the subject of discussion in the Court of Equity y but then it must be on grounds which cali for the interference of this court, and render it necessary for the attainment of complete justice.

The principle to be collected from the cases which say that a trustee shall not be allowed to purchase the estate of bis cestui quo trust, is this, that a trustee shall not be allowed'to derive any advantage to himself from the relation in which he stands to his cestui que trust, nor be exposed to any temptation to betray his trust;' that relation being intended not for his benefit, but for that of his cestui que trust. The extension of this principle to sales made under the authority of the Court of Common Pleas for the division of estates, would answer no one purpose for which it was adopted.

It is evident that M’Gowan and his wife had a right, as parties interested, to a division or sale of the land, as the case might be. The writ of partition is ex debito justitise ; his being the guardian of Compty’s children did not affect the sale in any manner; and surely did not preclude him from exercising the rights he acquired by his intermarriage with the widow of Compty.

Theodore Gaiiiard..

I have had great doubts on three points of this case^, and I greatly regretthat we have not had the benefit of the assistance of the judge, who did not hear the argument, as well on account of the intrinsic difficulties of the case, as of the difference of opinion which prevails upon the bciielu,

*497With respect to the house and lot of land, I think that the evidence is sufficient to establish that they were bought for Mrs. Compty. There was no evidence which shewed any title in Mr. Compty. Mr. Sta-Jy, the only witness called by the complainant, stated that the former owner or holder of the lot of land, agreed to convey it to him *;*but that he wras to ho¡cl it merely as a trustee of Mrs. Compty, now Mrs. McGo wan* This testimony must either be rejected or received. If rejected, then there is no evidence to shew that Mr. Compty had any sort of interest in the land, under which his children ■could claim any title, or demand any account of the rents and profits i And the title such as is derived from the agreement of Fitzpatrick, would vest in Stanly himself. But if the evidence be admitted, then Stanly declares voluntarily a trust, (which he could have been compelled to do,) not in favor of the children, but of Mrs. Compty, who has since married M'Gowan. This is not the case put at the bar of the admission of parol evidence, to contradict a deed, which the court could not permit *. but it is evidence of a declaration of trust, consistent with the deed. Stanly says, the agreement is indeed to convey to me* but I acknowledge I have no interest i I am merely to hold as trustee for Mrs. Compty. And no document is produced in contradiction to this. I am therefore of opinion, that on this point, the complainants did not make out a case, to entitle them to recovery; and that therefore, the decree as to the house and lot ought to ho affirmed.

The question respecting the Ferry tract of land, is much more difficult. It involves a point of great magnitude and delicacy. It is, whether a person standing in the relation which Mr. M‘Gowan did to the children of' Mr. Compty, who were orphans and minors, and in the possession and management of their father’s property, and at least the actual, if not the legal guardian, is at liberty to become a purchaser of tljgt property at a safe made at his instance. The courts look with great jealousy at'the conduct of a party so situated, and many . cases decide, that an agent, trustee or guardian shall not* *498become the purchaser of the property under his care un« ^er aiT circumstances. The court will not enquire into the fairness of the transaction, hut denies him the right to purchase, as the best security for the party confiding. The case of Fox and Mackreth, stated in 2 Brown5» Chancery Cases, which was more fully argued and occupied more of the time of the Court of Chancery and of the House of Lords than almost any other case on record, goes that whole length. The case of Crow and Ballard, reported in 3 Brown, is equally strong. The cases in 5 Yez. jr. 678 and 707, and 6 Vez. jr. 617, and 631, are to the same *purpose;*and in one of them a purchase even at a sale made at auction, was set aside. There is no doubt great wisdom in the rule 5 and I would on no account shake it, in cases coining plainly within it, and where no circumstances made it necessary to depart from it. Let us then examine the circumstances of the case under our consideration, and see if there be nothing in them which should induce us to hesitate in the application of the rule.

M’Go wen, on marrying the-widow of Mr. Comply, became interested in her right in the estate. Those interest's were blended with the children’s. He found them orphans and minors, living with their mother-in-law. Humanity required of him that he should take care of them and their property. He did so. Hence his relation to them, as an acting guardian. But this did nob fake away his legal right to have a partition of the estate. The court to which application was made for partition, acted according to its acknowledged and concurrent jurisdiction in ordering a sale. Shall he then be debarred the right of becoming a purchaser at that sale of property in which he and his wife have an interest in common with the children ? If he should be so debarred, it would be a prejudice to Ms rights and his.interests, and might even be injurious to the interests of the children.

I am inclined to think, that under these circumstances, the strictness of the rule in Fox and Mackreth’s case ought not to be *applied;*and that he ought not to be en~ irely prohibited fresn becoming.^, purchaser. It will be *499a sufficient-security to the children, and the purposes' of justice, which is the object of the rule, that the validity of the purchase should be, made to depend on;the fairness of the transaction and the fullness of the price.

Let us then examine the case by those criteria. The sale was made under the authority of a court having competent jurisdiction. It was not made pi’ivately, or at an unusual time or place, but at the time and place prescribed by the statutary provision for all sales made under judicial authority. It was open to all to become bidders. It was then so far regular and fair. If we look to the price, there is a difference of opinion, as to tlie fullness of it. But the great weight of testimony is with the pur-, chaser, M’Gowen. Witnesses of integrity and knowledge of the property were decidedly of opinion that the price actually given by him was above the value of the property $ and in confirmation of that opinion, no other bidder came nearly up to that priee. One witness of in- • tegrity and intelligence certainly was of a different opinion. But he seemed to look rather to what it might be Worth hereafter, than to its present value. This mode of considering the subject, would have been an abridgment of the right of any of the parties in interest to obtain by legal process, a partition and sale of the property, to which they were entitled, and to oblige them to wait the event of a speculative (increasing value, I think the evidence of the fulness of price quite sufficient. Some stress was laid upon the declarations of M’Gowen, that he had purchased for the benefit of the children of Compty; and they certainly threw such a cloud over his conduct, that if I had not been otherwise satisfied that the proceedings were fair, and the purchase at a full price, I should have willingly laid hold of those declaratiofts, to have set aside-the sale, or to have made him a trustee for the benefit of the children. But these declarations were loose and inconsequential, and were contradicted by all the acts of the case.

Upon the whole therefore, I do not perceive that there was such error in the decree as to induce me to reverse it. I repeat that I have hpd great doubts and dif. *500ficulties, and í am not sure that I have cometo the right *conclusion;*but I am bound to give my best judgment on the case, and that judgment leads me to affirm the decree on this point.

With respect to the question of the rents and profits of the ferry tract before the sale, I concur entirely with the decree.

I am therefore of opinion, that the decree should be affirmed on all the points.

Henry W. Desaussur®.

. I concur with the majority of the court on the general law and its application upon the point of M’Gowen’e power to *purchase;*but disagree with respect to the declaration of trust. Frazer and Wyche, whose testimony lias not been impeached, swear positively, that shortly after the purchase, M’Gowen told them he had purchased the ferry tract, for Compty’s children. This I think a sufficient declaration of trust, and vests the estate in them absolutely.

Í am therefore of opinion, that the decree, so far as relates to the ferry tract, should be reversed. In other respects it ought to be affirmed.

W. TiiompsoW

In this case several points have been disposed of by *my*brethren, which meet my concurrence.

But there remains one, in which unfortunately I differ from them in opinion. This is, with respect to the legality of the purchase of the ferry tract made by the defendant M’Gowen. The price paid for the land was said to be a good one a£ the time of the *sale; but*the ferry has since improved-greatly in value, and is likely to keep pare with the growth of Columbia. The defendant was entitled to one third of the tract, in right of his wife, who was the widow1 of Compty, when he married her. The children were minors, and he applied to the Court of Common Pleas for a partition. To obtain a division of the estate was no doubt for his interest, but in seeking this, he was also tyoqgdto at toad to that of the children.-*501He was administrator of the estate, arid was appointed by the court guardian ad litem of the minors, and in this Rouble capacity, he must be considered by this court as a trustee j and though perhaps not a trustee to sell, yet the sale was made by his procurement, and he acted for the children. He purchased the land at public sale, and there was no unfairness ; but this will not affect the principle which applies almost universally. The rule is, not to permit a trustee to purchase a trust estate, while the connection between him and the cestui que trust continues *;*because by the situation in which he is placed, he has opportunities of discovering advantages in the property which might have escaped the rest of mankind. Now the situation of this defendant was particularly opportune to discover the value of this property, for he alone knew the custom of the ferry, and its increase $ and he alone was in the habit of receiving monies for ferriage, which being in small sums, and easily disposed of* might easily have been secreted from the knowledge of the rest of mankind. But he had many other advantages over the minors besides a knowledge of the true value of the property. In his own right, and by representing them, he had the sole power of nominating four of the coinmis-. sioners who recommended the sale. I knpw not who they were; they were no doubt good men, but I speak abstractly upon a general question. As the court is not generally acquainted with persons in the vicinage, he might perhaps influence the choice of the fifth commissioner. This is by no means unusual, and thus he might, have the whole of them his particular Mends. Then a sale of the ferry tract was recommended by the commissioners, and was made. The defendant was entitled to retain one third of the purchase money, and to have credit for it; and therefore he could buy upon easier terms than any other person. He might give out privately that he was about to purchase for the minors, and thus stop the mouths of many, who otherwise would have become bidders. In short, this case is surrounded with dangers to the children. He was in loco parentis, his wife. *502was the step mother, and they had no others to look to for protection, and though there was no fraud, yet, it is the danger of fraud in similar cases that I am seeking to avoid. During the whole transaction, the minors are ' ,. ,. . , _ at the mercy or the guardian — their whole property ism his hands, they are not free to act, they are under his authority — they are bound to *obedience;*and it is not until they come of age, or claim the protection of this court, that they can call upon him to do justice* See Sugden’s law of vendors, from p. 393 to 398. Also New-3and on Contracts, 459 to 466. This case is very similar in principle to that of the assignee of a bankrupt, who purchases the bankrupt’s estate; upon which the case' ex parte Reynolds was cited by the counsel from 5 Yez. jr. 707'. Such cases also abound in the subsequent vols. of that work. In the principal case, the sale was made by authority of the *court;*so in a case of bankruptcy, the assignees have no power but what is derived originally , from the lord Chancellor. The assignee is a trustee for the creditors, and has an opportunity to deal for his bene.-fit, more amply afforded, and more out of the reach of investigation *•,*and he has the bankrupt at his mercy. Thus likowiseinthe present case, the administrator is a trustee for creditors, and has the minors at his mercy. And yet it is laid down, *“*that without reference to the circumstance of advantage gained or unfairness practised, and whether the sale be by private contract, or by auction, that an assignee under a commission of bankruptcy, as he is a trustee for the benefit of creditors, and of the bankrupt, cannot purchase the bankrupt’s estate j and is more particularly within the general principle.” Newland on Contracts, 462, 3. But as I have compared the present case of an administrator, to that of an- assignee, to give it support, so in other cases the assignee is assimilated to an executor for the same purpose. Ex parte Lacy, 6 Yez. jr. 625, ex parte James, 8 Yez. 337. But further, there is a rule laid down by lord Hardwicke, which I think very strong upon this point. That where a trustee for •persons, not sui juris, becomes hot!) buyer and seller, the *503court will, under no circumstances whatever, he they lie--ver so fair between the parties, establish a purchase of that kind, unless the transaction is legitimated by an act of the court, or some public act. Sug. 393, 4. Now the defendant in this case was virtually the seller, for the sale was made by his *procurement;*and the purchase made by him, while guardian for others not sui juris, has not been legitimated by any court; nor can it be, by the public manner in which the sale was made, for “ the publickness of a sale ought not to sustain a purchase, which cannot otherwise be supported10 Vez. jr. 394. But finally, it is laid down by high authority, “ that this general rule stands much more upon general principle, than upon thé particular circumstances of any individual case. The purchase is not permitted in any case, however honest the circumstances; the general interests of justice requiting it to be destroyed in every instance, as no court is equal to the examination and ascertainment of the truth, in much the greater number of cases 8 Vez. jr« per lord Eldon. This authority appears to m'e to be con-elusive. It is certainly more safe to require the trustee to divest himself of his character as such, by order of the Court in which he applies for leave to sell, before he should he permitted to purchase *y*and by this means to prevent all the consequences of his acting both for himself and the cestui que trust. But there are other reasons for opening the sale of this property. Defendant said ia the presence of .certain witnesses, that he had purchased for the children, and he rendered no account of the purchase, to the ordinary, for three years after the sale. He ought therefore to he bound by his declarations, and ought not to be allowed such a length of time to speculate about the purchase.

Upon the whole, Í am decidedly of opinion that tins decree of the Circuit Court, upon this point, should be reversed, that a re-sale of thelands should be ordered; that they should be set up at the price at which they were bought by the defendant; but that he should be held to Ms purchase if a better price cannot be obtained.

W, D, James.

*504Starke, Clifton and W. F. Desaussure for tbe com?--, plainant.

Chappell, Hooker and Harper for the defendants,

The much contested question, whether trustees, agents, guardians, executors, or others in confidential situations, can legally be» come purchasers for their own benefit, in any and what cases, cante again before the Court of Equity in the case of Perry and w.fe, *vs*Samuel Dixon, executor of J. Dixon, deceased; and it is deemed adv is cable to report that case in a note at this place, in order to put the profession in possession of all that has been yet done oh this important Subject in the Court of Equity.