Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-10-24
DlGESTED BY W. 3. MARTIN
EXCLUSIVELY FOR
viRcINlAN-PILOT.
Notes of Cases Recently Decided
Which Are Of Interest to
Our People.
SMITH ". MILLER.


A DEED OF TRUST TO SECURE
EXISTING DEBTS OF THE
GRANTOR SECURES A BOND
DATED SUBSEQUENT TO THE
TRUST 1T 1T WAS FOR A DEBT
EXISTING AT THE TIME OF THE
DEED.
"A TRUSTEE CANNOT BUY AT HIS
OWN SALE. NO MATTER HOW
FAIR THE SALE MAY BE.
WHERE THE SALE WAS FAIR
AND THE MOTIVE PURE, THE
SALE WILL BE SET ASIDE, AND
THE PURCHASE MONEY AND
VALUE OF PERMANENT I'M
PROVEMENTS MADE BY HIM
RETURNED TO THE TRUSTEE,
AND HE WILL BE CHARGED
WITH PROFITS, &c. THERE CAN
BE NO RATIFICATION WITHOUT
FULL KNOWLEDGE OF THE
FACTS.
The court says:
Complaint Is made of the allowance
as credit to John b. Miller. in his set
tied account as trustee under the deed
from his father. John Miller. of the
bond of S904.2S. The deed bears date
on October 8, 1872. and one of it's OBJ
1ectS was to secure the existing debts
of the grantor. The bond bears date
on January Ii. 1878, and expresses on
It's face that ii is for the balance found
due on settlement of open accounts
between the parties, running from Jan
uary l, 1862. to January 49, 1873. The
ground of objection to the payment of
the bond is that it bears date after the
deed and by It's terms implicitly in
cludes accounts between the parties
made subsequent to as we'll as before
the deed, and that Ii does not apear
how much of the consideration of the
bond was incurred after the date OF the
deed and was not an existing debt at
the time of the execution of the deed
John Miller, by the said deed, diveSt-
ed himself of his entire estate of every
description, and being OF advanced age
ceased thereafter TO be engaged in any
business. having made provision for
his maintenance and support by the
cXaction OF an annuity from each of his
children In consideration of the lands
divided among them by the deed. The
presumption from the evidence is
wholly against the creation OF accounts
between the parties after the execution
OF the deed; and 1t was proved by r.
IL. Miller that he was present at the
execution of the bond. examined the
account for which 1t was given in his
fathers presence. who thought it cor
to be correct; that the bond was given
for the same amount as the balance
due on the account, and that he there
upon witnessed the bond. r. T.. Miller
was trustee in the deed along with his
brother John Is. Miller, and a grantee
as one of the four children OF John Mil
Ter of the lands divided among them by
the deed. 1t Is oltogether improbable
that he would have sanctioned the
bond by atesting it and thereby made
his share of the estate liable for one
fourth of the debt evidenced by the
bond if he had not been wholly salts
fed of its correctness. The Circuit
Court did not err in allowing the bond
as credit.
The last assignment of error relates
to the refusal of the lower court to set
aside the sale of the "Hogbacl1" tract
OF land. This presents a much more
serious question than those which we
have been considering.
BY the deed of trust and settlement
John B. Miller and r. L. Miller were
made the trustees to execute its many
important provisions. Among other
things, 1t became their duty to sell the
mountain land called the "Hogback"
tract for the payment of the debts OF
the grantor. John Miller. which were
primarily secured by the said deed At
the sale thereof John b. Miller became
the purchaser, and one OF the main OBJ
jects of this suit was to set aside the
sale and require the purchaser to ac.-
count for all rents. issues and profits
derived from the land. The ground
upon which 1t was asked that the sale
be set aside was that John p. Miller
being one of the trustees to sell and so
acting, he could not buy at his own
sale.
The testimony does not seem to leave
in any doubt the fact claimed by John
B. Miller that he had no desire to buy
hal To- 1t. g.. "a
to try and make it bring it's full value
or fair price. After 1t was cried out
upon him, he explained to his CO. trus-
tee his reasons for bidding, disclaimed
being the purchaser. and authorized
his co-trustee to sell the land to any
one else who would give the price at
which 1T had been cried out to him, but
was told that he would be held to his
bid
However these facts may be, IAN in
eNorable principle OF public policy"
renders 1T unnecessary to consider and
determine for it is a settled principle
of equity that trustees and all persons
acting In confidential character with
respect to the subject OF sale are dis
qualified from purchasing the property
for themselves. The characters of
buyer and seller are incompatible, and
cannot be safely exercised by the same
person. The validity of a sale in such
$50 uoeo ilol Nepeiiu upoii US
but the sale is voidable. and when at
tackled must he set aside. although the
price was fair. or the best to be had
and the motive pure.
1t is contended that although the sale
may be invalid, the parties interested
after such lapse of time, must be
deemed to have ratified on acquicsced
IN the sale. and are now estopped to
contest It.
The propf is wanting that they knew
or the sole and the facts connected
therewizH until since the institution of