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ing. The great difficulty of discovering a disregard of the JULY 1829. rights and interest of the cestui que trust, induced the de

Brannan et al. termination of the Courts, that the trustce had no right to purchase, so long as his vicarial character continued. There, Oliver. the only means, in almost every instance, to ascertain unfairness in the sale, was hy such communication as the trustee might think proper to make; and it is unreasonable to suppose that he would make any disclosure, which would operate adversely to his interest; even when called on in equity, to answer on oath, if he was convinced that a knowledge of the facts was inclosed within his own bosom. How widely dissimilar is the case made out by the facts here? The administratrix sells at public auction the property of her intestate, where all who wish to purchase, have an opportunity of doing so; she returns an account of the sale to the Court, from which she receives her authority, and it is there recorded. If there was any unfairness in such a sale, the testimony of those who were present, (and some persons must be, or the sale cannot be public,) and the records of the Court, would, I may venture to say, in fortynine fistieths of the cases, disclose it; without depending alone upon the answer of the purchaser, in equity. Hence, I conclude, from the publicity of the transaction, that the rule when extended to a case like the present, is not sustained by just notions of policy; and that an administrator may purchase at a sale made at public auction, under legal authority, of his intestate's estate.

The authority furnished by the English and many of the American decisions, in favor of an extended application of the rule, cannot be received as conclusive or pertinent, in those st ites where administrators dispose of their intestate's estates by a public sale authorized by a special license from a Court of record, or where they make a return of such sale to the Court. These decisions are predicated upon a different state of fact.

There the grant of administration is a license to them to perform whatever pertains to them in the character of administrator, and dispenses with a special authority. There the sale is good, though made privately; consequently, sales made by administrators under such circumstances, are less public, and the probability of detecting a fraud greatly diminished.

I understand the rule to be founded upon the idea, that the purchase is a fraud in law upon the rights of those interested in the estate. · I consider it as most congenial with the condition of society and the character of human deal

JU! Y 1929.

Oliier.

he

ings, to narrow the catalogue of legal frauds to as sew ag

practicable, and to declare no act as fraudulent per se, Brannah et al.

where a wise and just policy does not imperiously demand it. Every lawyer who is not too much enamoured with his early notions of law, will admit that the benefits which result from an extension of the doctrine of constructive fr-uds hears no comparison with the injury it inflicts. I introduce this view, merely to shew, that the rule should noi be held to extend to all cases of trust.

I will now notice some authority in favor of the right of the administrator to purchase. In Lindsay v. Lindsey,

a:lministrutor," the Court of Chancery in South Carolina al Dess. 150.

determined in favor of the sale and purchase by the adb'ra,tou's ministr::or Another case in the same book, isto the same Por: point. In 'Ghire and wife, and others, v. M'Gowin C4 L'ess. 187. and wife, aluministratrix,' the same Court seem to treat

the subject as if it was still an open question. Two of the Janiges were in favor of the general authority to purchase; one of ther, though he did not concur in the general authority o the alministrator to purchase, held, that the trust being coupled with an interest in the particular case, might be permitted to purchase; the other two Judges

maintained the broad principle of incapacity. In Perry d Ib. 504 ne te. and wife v. Dixon, the Judges seem to have been divi:'ed,

as they were in the case of M Guire and wife, and others, v. N'Goran and wife, administratrir. Theinferencededucible from these recisions is, that an administrator, where he has an interest in the estate, may purchase; but where he inis a mere niked trust, he cannot. The case we are coasi iering comes within the rule as thus modified. The appellant, as the reliei of her deceased husband, was eiria tle i tone third of her husband's estate, and the appellee as sole heir and distributee, to the remaining tw thirds. Without bending the strict rule further than it has been miteio yield in the cases in 4 Dessaussure, it was com

petent for the appellant to have purchased. e 2 Hen. and

lu Anderson and Starkev. Fox and others, the quesMuni. 245. tion as to th right of an executor to purchase property

exposed to sale by himself, was discussed. Judge 'Tucker in the opinion which he delivered, remarked, that he was no me is prepared to say that as to such purchase the exerutor was a mere trustee. “If this ('ourt,” saiil he, bivere declare the law o be suchi: all cases, even where there was an unted leticienc 0'assets, and alth.ch the sale should have been made after due notice at public.

auction, and with all possible fairness, it would probably JUI Y 1829. be the immediate parent of a thousand suits in chancery,

Bragunn et al. to set aside such purchases, either in behalf of the legatces, distrib:atees or creditors.” Again; “The practice has been

Oliver. too general in this country, and has prevailed too long, to he drawn in question by analogy to the doctrines in Eng. land concerning trustees of lands or commissioners of bankrupts. For though executors and administrators are, to many purposes, considered as trustees in a Court of equity, they are not so in all cases. "a Judge Roane deem

a 2 Vesey. 482. ed it unessential to a decision of the case to express an opinion upon the question; rather intimating however, that the English decisions did not consist with the usage and understanding which prevailed in Virginia upon the subject. The opinion of Judge Tucker, has ever since been considered as correctly ascertaining the law in Virginia.

The remark of Judge Tucker, as to the generality of the practice of executors and alministrators in Virginia, purchasing at sales of the estates they represented, will apply with equal force to this country; and the injury consequent upon a decision in opposition to usage, would be alike incalculable. Under these circumstances, nothing but rules of law too inflexible to yield to considerations of general bones v. Logconvenience, should superinduce such a determination. Where rights have matured under a general impression that they were sustained by law, such impression Swider. should not be lightly regarded. And in cases where the Olim 13,

wood.

Colloin

V.

Haters et al, adjustment of the law is more important than in what way it be settled, it should receive a controlling influence.b

in Error 47. In 2 Carolina Law Repositoryo the general authority is cPage 49. maintained, with this restriction, that the personal representative shail be answerable to the creditors to the full value of the property. And in 2 Haywood,d it is held d Tomlinson's that an executor may purchase the property of his testator at a public sale by order of Court.

Exrs.p. 291. I Having shewn that there is little danger of unfairness in the sale passing undetected where it is made publicly, I proceed to consider whether a just policy doesi.ot require a rclaxation of the rule in such cases. It is certainly for the interest of the creditors and distributees, that the estate should yiell, when sold, as large a sum as practicable; and as the surest means to effect that result, a fair and honorable competition should not only be toleried, but encouraged. The widow or some neir relative is most frequently be personal representative, and most solicitous to purchase

y. Stewart. N. 1. Cases

Exrs. V. De testitutins

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Oliver.

some particular portion of the intestate's estate; and if not

permitted to purchase by openly bidding, would procure Brannan et al.

some one to become the ostensible purchaser, and acquire through him the ownership. If this can be done, and it is beyond the operation of human laws to restrain it, witlioui inhibiting, to an impolitic extent, the transfer of property, why declare that the administrator shall not be permitted to purchase? The rule when extended to such a case can produce no good; since by a kind of tacit understanding, which the law cannot reach, he can acquire title through another. Surely, reason and good sense demand that he should be permitted to do that, directly, which he can do indirectly; and when too, if there is unfairness in the sale, detection is almost inevitable.

This course of reasoning has brought my mind to the conclusion, first: that the purchase by the administratrix is prima facie valid, because divesied of all unfairness; second: that the sale is prima facie legal, because it does not appear what the law of South Carolina is. Without therefore expressing an opinion upon the other assignments of error, I am of opinion that the decree should be reversed, and the cause remanded, that an opportunity may be given to shew the law of South Carolina; and with me the

Court concur. * See the Ca

Reversed and remanded * et al. v. Sin

The CHEF JUSTICE and Judge CRENSHAW, not sitting, gleton. i Stewart p. 575.

ses of Gavle

HOBBS v. Bieb.

3. Possession of personal property, remaining with the vendor, is presump:

tive evidence of ownership in lin; but this presumption may be rebulted

by proof. 2. Such possession is only presumptive evidence of fraud, but is not fraud

per se.

THOMAS Bire obtained a judgment in the county Court of Madison county, against John Estell and John Bradley, in February 1927, for $2213 0-1; on which a fi fu issued the 26th of February 1927, which was levied on the next day on four negroes, besides other cifects, as the property of John stell. On the 25th of March the said slaves were

JULY 1929.

Hobbs

Libb.

claimed by John Hobbs, who made affidavit and gave bond acror ing to statute. The proceedings were returned to the Circuit Court of Madison, for the trial of the right of property. At May term 1827, issue was joined, between the plaintiff in execution, and the claimant of the property; Bibh averring that the negroes were liable to the satisfaction of his execution as the property of John Estell, and Hobbs denying the same, and insisting they were his. The issue was tried by a jury, who found that at the time of the levy, the negroes were the property of the firm of John and Joseph Estell; and that one undivided half thereof being John Estell's interest therein, was subject to the cxecution:” on which the Court rendered judgment, subjecting said undivided half to the satisfaction of said exccution, and for the costs, against the claimant.

Hobbs took a bill of exceptions at the trial, by which it is shewn that his claim was under a purchase made by him from John and Joseph Estell. lle proved that in August 1825, he lent J. and J. Estell S2500, and took their note payable on demand for the repayment; that in November following, he purchased from them the four negroes levied on, and four others, and took a bill of sale for them and gave up the note for $2500 in part payment, the whole price being $2700. That at the time of the sale, John Estell hired the negroes from Hobbs, and continued in posses sion under said contract of hire until January 1827, when the hire, $250 was paid, and liobbs took possession of four of the negroes, and again hired the four now in dispute to said John Estell for the year 1927, for $200, and took his note for the payment. It was proved that the Estell's were in partnership in all their transactions, and had been for several years; and that the negroes sold to Hobbs were partnership property, and sold to him to pay a partnership debt, the firm being indebted to him for other loans of money to more than the remaining amount of two hundred dollars, after deducting the note for $9500. J. and J. Estell were in good credit, and transacted busines: extensively in Huntsville as auctioners, brokers and commission merchants for several veurs; that in the fall and winter of 1824-5 they bought cotton largely, and sold it in NewOrleans at considerable profit, and afterwards vested the proceeds, and extended their credit in the purchase of a large quantity of Coiton at New Orleans, which they shipped to Liverpool on speculation. At the time of borrowing the $2500 from Hobbs, the fall of cotton in

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