this request, Wright had an execution levied upon all of the plaintiff's lands not covered by the execution in the Couper Case, and the lands were offered at sheriff's sale and sold in May, 1896, and bought by the defendant Townley for $110, subject to the mortgages and all other liens thereon; there being a mortgage for $5,000 in favor of S. D. Townley, brother of defendant Townley, upon a portion of the lands, and another mortgage for $5,000 in favor of the Western Hawaian Investment Company upon another portion of the lands, and a mortgage for $3,600 in favor of J. F. F. Brewster, and one for over $690 held by the Farmers' & Traders' Bank of La Grande, Or., upon another portion of the lands, and other claims thereon, and, in addition thereto, there was a question as to the title to portions of the lands embraced in what was known as the "meander lines" of Tule Lake, these being lands purchased from the state as swamp lands, to which patent had not then issued from the United States. This sale was also confirmed by the court, and, no redemption having been made, a sheriff's deed was executed therefor to defendant W. J. Townley. On January 15, 1896, the Farmers' & Traders' Bank of La Grande began foreclosure proceedings upon its mortgage covering the lands in the Brewster mortgage, and also claimed that the lands embraced in its mortgage included a part of the lands in the Western Hawaian Investment Company's mortgage within the meander lines of Tule Lake, and made the last-named company party defendant to the suit. On August 27, 1896, J. F. F. Brewster began foreclosure proceedings upon his mortgage, covering the same lands in the mortgage of the Farmers' & Traders' Bank, and the two suits were consolidated, and upon demurrer on the part of the Western Hawaian Investment Company they were dismissed as to the claim of the Tule Lake lands and as against the investment company November 14, 1896, and a decree foreclosing both mortgages entered February 6, 1897. The lands were thereafter sold at sheriff's sale and bought by Brewster, and no redemption made, and were, then sold by him for $3,800, about the amount of his mortgage claim. In February. 1898, the Western Hawaian Investment Company obtained a decree foreclosing its mortgage for $5,000 above mentioned, in which suit most of the defendants herein were defendants, and at an execution sale under such decree it purchased all of the lands covered by its mortgages, except about 84 acres, which were purchased by the defendant W. J. Townley. This sale was confirmed by the court and no redemption made. The lands purchased by the investment company aggregated over 1,000 acres included within the lands purchased by defendant Townley under the sale made upon the execution issued in the case of the First National Bank of Union against Nodine. An appeal was taken from the decree of foreclosure in the Western

Af

Hawaian Investment Company by the Farmers' & Traders' Bank of La Grande, a defendant therein, upon a question of the title to some of the lands involved therein, lying within the meander lines of Tule Lake. ter the determination of this appeal, July 10, 1899 (Western Investment Co. v. Farmers' Nat. Bank, 35 Or. 298, 57 Pac. 912), the First National Bank of Union, whose judgments against Nodine were still unpaid, purchased from the Western Hawaian Investment Company, for $8,500, its certificate of sale issued by the sheriff, and had such certificate assigned to the defendant Townley, who was vice president of the bank, as trustee for it, he being in possession of the lands as tenant of the investment company. Later, in April, 1901, after the title to the lands involved had been determined by the Interior Department and a patent issued therefor by the United States to the state, Townley bought the interest of the bank therein and had the sheriff deed the lands to him May 1, 1901, paying the bank therefor $16,500, being the balance due upon its judgments, with interest, and the amount paid by it to the investment company for the certificate.

The mortgage held by J. F. F. Brewster upon the lands purchased by Townley under the First National Bank of Union execution did not include the lands under the Western Hawaian Investment Company mortgage or the S. D. Townley mortgage. At the time of the commencement of this present suit the only portion of the lands purchased by Townley at the execution sale in the case of the Bank of Union against Nodine not foreclosed on or sold under prior liens was about 800 acres covered by the $5,000 mortgage given to S. D. Townley, in sections 4, 5, and 9, township 4, south of range 39 E., and some fractional lots, all of which, except the lots, are included in the patent to the state above mentioned. His rights under that purchase to lands mortgaged to the Western Hawaian Investment Company had been barred by the foreclosure of its mortgage, and he had subsequently acquired title thereto by purchase from the bank of the sheriff's certificate issued to the investment company, and his rights to the lands covered by the Brewster mortgage had been barred by foreclosure of that mortgage and sale of the lands to Brewster without redemption, so that, at the beginning of this suit, he held title to a portion of the lands formerly owned by plaintiff by purchase at the sale under the execution in the case of the bank against Nodine, and to another portion by purchase of 84 acres directly, and the rest by assignment of the sheriff's certificate issued upon the sale under the execution in foreclosure of the investment company's mortgage.. After sales of these lands to Marshall and Townley in the spring of 1896, the plaintiffs on July 13, 1896, instituted a suit against all of the defendants herein and D. M. Jameson and August Nelson, and one James Raymond, to have the

contract of plaintiff with the defendant Starr and the deeds and transfers made thereunder to the defendants Richmond and Wright as trustees declared a deed of assignment for the benefit of all his creditors, and for an accounting on the part of said trustees for all property that came into their hands, and for damages against them for mismanagement of the property in various ways, and to set aside the sales made to defendants Marshall and Townley. An amended complaint was thereafter filed in that suit, and upon motion of the defendants the greater portion thereof was stricken out, leaving practically as the only important question for determination by the court therein whether or not the contract with Starr and the deeds to the trustees made thereunder constituted an assignment for the benefit of the creditors of the plaintiff Nodine. Answers were filed by the various defendants and the case put at issue and testimony taken, and the case dragged its weary length along with various substitutions and changes of attorneys for the plaintiff, until March, 1903, when, being set for argument upon the testimony taken by a stenographer and reported to the court, upon motion of plaintiff's attorneys made in open court, it was dismissed at plaintiff's cost. Thereafter this suit was commenced, and the amended complaint upon which it was tried was filed July 18, 1904. All of the defendants answered, except Richmond, who was not served with summons, and Starr, who, although served with summons and the original complaint, had no notice of the amended complaint upon which the case was tried. The answers deny all the material allegations regarding the failure and refusal of the trustees to account, and negligence on their part in permitting the sale of the lands upon executions, and also all charges of fraud and conspiracy and misconduct on the part of any of the defendants, but admit the execution of the contract with Starr and of the deeds to Richmond and Wright as trustees, alleging the latter to be for the benefit of plaintiffs and their creditors, but the defendant Wright claimed to hold under the deeds as a naked trustee of the title only to be transferred in accordance with the contract with Starr, and denied being trustee of the personal property. The official relations of Marshall and Connell to the Ainsworth National Bank and of Wright and Townley to the First National Bank of Union are admitted as hereinafter stated. Further defenses are pleaded of mortgages and judgment liens upon the land and sale thereof under executions issued under two of said judgments as heretofore stated, and confirmation of such sales and payment thereafter by the purchasers of certain mortgages and claims against the lands. The former suit dismissed by plaintiff in March, 1903, is also pleaded as a defense

Upon trial the lower court found in effect

that the defendant Wright was a naked trustee of the title only as claimed by him, and not accountable for the management of the lands or for the personal property, but that the defendant Starr was accountable to plaintiffs for $1,086.60 received by him on account of said trust, and that there was no fraud or collusion in the purchase of any of the lands upon execution sales thereof upon the part of any of the defendants, and that this suit should be dismissed as to the defendants Wright, Townley, and First National Bank of Union, but that defendant Connell, acting for the Ainsworth National Bank, had fraudulently obtained a quitclaim deed from defendants to the land involved herein and conveyed a part thereof to Marshall, and that defendant Richmond and wife had fraudulently made a deed to Connell and one to Marshall for certain land, and that all such deeds should be set aside and canceled, and entered a decree dismissing the suit as to Wright, Townley, and First National Bank, and canceling the deeds to Connell and from him to Marshall, and from Richmond and wife to Connell and to Marshall, and awarding a decree against Starr for $1,086.60, and against Starr, Connell, Marshall, and Ainsworth Bank for costs, but denying any further relief against such last named defendants. From all that part of the decree, except the judgment against Starr and the cancellation of the deeds, the plaintiffs appeal, while the defendants Connell, Marshall, and Ainsworth Bank appeal from the decree of cancellation and costs against them.

Leroy Lomax and G. Anderson, for appellants. T. H. Crawford, C. E. Cochrane, and Geo. E. Chamberlain, for respondents.

HAILEY, J. (after stating the facts). In support of the claim for an accounting, it is alleged that the trustees have failed, neglected, and refused to account to plaintiffs for the property transferred to them. To sustain the contention for damages for permitting the sale of the lands upon execution, it is charged that the trustees had in their possession and control sufficient funds arising from the trust property to have paid these claims and prevented the sales of the lands. Neither of these contentions is proved by the evidence. On the contrary, it is shown that Nodine was advised and consulted with regarding the sale and disposition of all property, real and personal, and that all proceeds therefrom were fully accounted for by the reports made in December, 1894, and again in December, 1895, and the sale and lease to Townley, and that, so far as the rents and profits of the lands were concerned, he consented that the trustees should farm the lands and apply the crops and other proceeds thereof to the payment of maintenance and running expenses, and the surplus, if any, to his debts, and that he consulted and advised with and as

sisted them in the farming operations and the management of the property and sales. The evidence shows that, instead of having trust funds on hand unaccounted for which could have been applied to the payment of the judgments upon which executions were is sued, the trustees had not only exhausted all personal property in the payment of pressing claims and had done so with Nodine's knowledge, and had fully accounted to him for all receipts and expenditures, which account he had approved and accepted after having gone over it in detail, but had also used all reasonable means to sell the real estate in accordance with the terms of the contract, and failed. It was not until after all these things had been done, when all resources had been exhausted, that the executions were issued upon the judgments, and the evidence shows that at least one of the executions was issued at Nodine's request. The proof is therefore wanting to support the charge of funds sufficient on hand to pay the judgments.

2. To recover the lands or the value thereof and have canceled certain deeds thereto, fraud and conspiracy upon the part of all the defendants are charged in procuring the original contract between Starr and plaintiff Fred Nodine, and in all the subsequent acts of defendants in relation to the plaintiffs and the trust property and its proceeds. It is alleged that defendant Starr was attorney and agent for all of the defendants in procuring the contract with Nodine, and that the defendants Marshall and Connell were cashier and vice president, respectively, of the defendant Ainsworth National Bank, and that the defendants Wright and Townley were president and director of defendant First National Bank of Union, and that the trustees, conspiring with the other defendants, failed to pay, when they had sufficient trust funds therefor, certain judgments existing against the plaintiff Fred Nodine which were liens upon all his lands, and one of which was owned by the defendant Marshall and the other by the First National Bank of Union, and caused executions to issue thereon and upon a mortgage foreclosure decree in favor of the Western Hawaian Investment Company, and had the lands of the plaintiff sold thereunder, and prevented competitive bidding at the sheriff's sale of such lands by falsely representing that they were greatly incumbered by mortgages and other liens, and were being sold subject to such mortgages and liens, and thereby purchased the same at grossly inadequate prices, and that said trustees failed to notify plaintiff of the issuance of such executions and of the sales thereunder. It is further alleged that the defendant Connell, acting with the other defendants, by false and fraudulent representations, procured from the plaintiffs a quitclaim deed to all the lands so sold at sheriff's sale, and also by the same means

procured an assignment of the plaintiff's interest in a certain suit then pending in the circuit court of the state of Oregon for Union county, brought by plaintiffs against all the defendants herein, except Connell, and that the defendant Richmond and wife made certain quitclaim deeds to defendants Connell and Marshall of said lands so sold to defraud plaintiffs and without their consent. It is sufficient to say that the evidence fails to show any fraud on the part of Starr in the procurement of the original contract with Nodine, and none of the other defendants had anything to do with its inception, and Richmond and Wright were acting as trustees at the request of Starr and Nodine, but Starr was not agent or attorney for any of the defendants in that matter. The official relation of Marshall and Connell to the Ainsworth National Bank is admitted, but there is no evidence that any of them had anything to do with the management or disposition of any of the trustee property, except that Marshall, as cashier, in order to avoid the expense of foreclosing his mortgage upon a part of the plaintiff's land, caused an execution to issue upon the judgment which he had bought from Couper and which was a prior lien to his mortgage, and had the lands sold and bought them in for the bank, all of which he had a legal right to do; for both the judgment and mort gage were prior in time to the transfers to the trustees, who took subject thereto. The only evidence upon which the plaintiffs relied to prove fraud and conspiracy upon the part of the bank or its officers in connection with the trustees in the sale under the Marshall judgment was the fact that Wright and Connell looked over plats of the lands and drove over the lands, and Wright pointed out to Connell the west boundary of the lands mortgaged to Marshall, who held for the bank.

There is no evidence whatever to support the charge of fraud in regard to the sale under the foreclosure decree of the Western Hawaian Investment Company's mortgage. Eighty-four acres of the lands sold at this sale were bought by Townley for $800, the sale confirmed and deed issued as in the other cases. The lands bought by him were separated from the main body bought by the investment company and adjoined other lands he had bought at the first sale. In each of these sales the judgment or mortgage lien existed long prior to the transfer from plaintiffs to the trustees, and each of the parties had a right to enforce the payment of his claim by the sale of any or all lands upon which it was a lien. It is not contended that any of these claims were fraudulent in any way, but that the sales thereunder were collusive and fraudulent. The evidence fails to bear out the contention. Neither Marshall nor the bank of which he was a cashier was in any way connected with the plaintiffs

or either of the trustees, and no duty rested upon them to refrain from buying plaintiff's lands at a sale based upon the judgment against him. The Western Hawaian Investment Company was not connected in any way with the plaintiffs or the trustees, and had a perfect right to make the amount of its debt out of plaintiff's property. The Marshall judgment and investment company mortgage, both being prior in time to the transfer to the trustees, were also, it is conceded, prior in right thereto. No confidential relations existed between either Marshall or the bank he represented, or the investment company and Nodine or the trustees. The. was no fraud or collusion, and no interference of any kind in bidding at either of these sales. The only remaining reason alleged for setting them aside, if any, is inadequacy of price. This court, in accord with the great weight of authority, has held in Farmers' Loan Co. v. O. P. R. R. Co., 28 Or. 70, 40 Pac. 1093, "that mere inadequacy of price, where parties stand on an equal footing, and there are no confidential relations between them, is not of itself sufficient to set aside a sale, unless the inadequacy is so gross as to be proof of fraud, or to shock the judgment and the conscience." The plaintiff personally, as shown by his letters to Starr, had made an effort to sell his lands to pay his debts, and had failed. Starr, Richmond, and Wright and all the various agents by them employed had likewise failed to sell the lands, and plaintiff had been willing to accept at one time an average of $15 an acre if he could get out and have something left. After all this the lands bought by Marshall, being about 1,440 acres, were offered at public sale by the sheriff. Marshall's judgment then amounted to over $2,000. It and taxes were a first lien upon 280 acres lying about 14 miles east of the remaining lands levied upon. which were contiguous and also subject to the lien of his judgment and taxes, and 1,040 acres thereof subject to a subsequent nortgage in his favor for $4,000 and two prior mortgages for $4,000 each in favor of Balfour, Guthrie & Co., while 40 acres of the remaining 160 were subject to a prior mortgage in favor of the Western Hawaian Investment Company, with other lands for $5,000 under which they were taken from Marshall, and the 120 acres were subject to a mortgage for $1,200 in favor of the Alliance Trust Company, making a total of claims against the property, other than taxes and the Marshall judgment, of over $13,200, and, adding the taxes and judgment, the liens would exceed $15,000. There is evidence in the record that the entire Nodine tract was worth in 1894, 1895, and 1896 an average from $15 to $30 an acre, but much of it was swamp land, used for fall and winter pasture, and plaintiff claims in the original complaint filed in the other case, and which was introduced in evidence in this

case, that much of the meadow had been destroyed before 1896, when this sale occurred, and the evidence shows it had been badly flooded each spring by the waters of Catherine creek, which flow through it, and was not in a good state of cultivation, being infested with fox tail and mustard to such an extent that portions of the crops had to be harvested in patches, and the evidence is strong throughout the record that it could not be sold at any reasonable price, even the lowest given by the witnesses. It is also in the record that after the Ainsworth National Bank had acquired title to the lands through the sale to Marshall, and had paid all taxes and other claims against them, it sold them for only $19,800, and gave the purchasers long time in which to make their payments. These facts are not sufficient to support the claims of inadequacy of price so far as the sale to Marshall is concerned. The sale under the decree foreclosing the Western Hawaian Investment Company mortgage is in practically the same condition. Eighty-four acres not included within the meander lines of Tule Lake were bought at that sale by defendant Townley for $800, and the remainder, about 1,000 acres, mostly within the meander lines of Tule Lake, and title to which was in dispute and on appeal in this court at the time of sale, were bought by the investment company for the amount of its decree, less the $800 bid by Townley, and afterwards sold for $8,500, which was about the amount of its judgment, costs, and expenses. In view of the foregoing facts and the financial conditions then existing, and the status of the lands sold as to incumbrances and title, we cannot say that the price bid was even inadequate, and it was clearly not so grossly inadequate as to be proof of fraud or to shock the judgment or conscience.

Plaintiffs vigorously contend that the sale to Townley under the bank execution should be set aside. The record shows that prior to the issuance of this execution Marshall had issued execution upon his judgment and levied upon a part of plaintiff's lands, and that the Farmers' & Traders' Bank of La Grande had brought suit against plaintiff to foreclose its mortgage upon other lands, and that plaintiff, having failed in his efforts under the Starr contract to sell his land, thought that his lands must go to pay his debts, and so indicated to Wright, and suggested that the bank, whose customer he had been, try to save itself, and the execution was then issued, not through fraud or collusion as claimed, but practically at plaintiff's request. The judgment in favor of the bank was valid, and is not questioned, and it had been docketed in December, 1893, long before the transfer to the trustees, but was subsequent in time to the Marshall judgment. The execution on the latter judgment having already been levied upon certain

lands, the execution on the bank's judgment was levied on the remaining lands of plaintiff, which were incumbered as heretofore stated and the title to the greater part thereof imperfect and in dispute in the foreclosure suit of the Farmers' & Traders' Bank, and also questioned by owners of lands bordering the Tule Lake, who claimed that Tule Lake was not swamp land, but a lake the bed of which belonged to them as riparian owners, and one of them so far asserted his claim in the summer of 1896 as to fence a large portion of the lands included in the Townley mortgage, but was afterwards ejected as a trespasser. The lands were sold at public auction by the sheriff, and it is claimed that Wright and Townley prevented competitive bidding, or, as it is sometimes called, "chilled the bidding," by falsely telling prospective bidders that the lands were greatly incumbered. The evidence on this point is to the effect that while the property was being offered for sale by the sheriff, in the presence of Wright and Townley at the courthouse, N. Schoonover came out of the courthouse and made a bid upon the property, which bid was raised by Townley, who then told Schoonover that the lands were being sold subject to mortgages thereon. Whereupon Schoonover went away and the lands were bought by Townley, the sale confirmed, and deed issued without objection of any kind on the part of plaintiffs. Schoonover, when asked if he had been kept from bidding, answered, "No, sir; I could have gone on and bid for that matter." This was the only sale where anything was said about mortgages or liens by any one so far as the evidence shows, and the facts disclosed wholly fail to prove the allegation of preventing competitive bidding, or that the representations made were false; but, on the contrary, the record shows they were true. In Leake v. Anderson, 43 S. C. 458, 21 S. E. 439, a similar truthful statement made by an intending purchaser to other prospective bidders regarding the title to the land offered for sale was commended, "as it tended to prevent an unwary bidder from 'buying a lawsuit.'"

It is contended that the purchase was made by Townley for the joint benefit of himself, Wright, and the Bank of Union; but this contention is largely based upon inferences drawn from the fact that Wright and Townley were connected with the bank at the time of the sale, the former as president and the latter as a director. So far as the bank and Townley were concerned, they owed no duty to the plaintiff, and either of them had a right to purchase at the sale for their individual or joint benefit so long as there was no collusion or fraud between them and any one who did owe a duty to plaintiff. The only evidence connecting Wright with this sale is in relation to the issuance of the execution and his presence at the sale, and

the former was done at the suggestion of plaintiff, while the latter was the ordinary act of a bank officer in sales wherein his bank is interested. Even granting, as plaintiff claims, that Wright as well as Townley told Schoonover at the sale that the property was being sold subject to mortgages, it was the truth, and the same rule would apply as to the statement there made by Townley. The fact that Wright and Townley, officers of the bank, were present at the sale, is not enough to warrant an inference that Townley bought for the joint benefit of all. Especially is this true in view of the fact that Townley testifies positively that he bought for himself and gives his reasons why he did so, and the sheriff's certificate of sale and the deeds thereunder were issued to him. and there is nothing in the record that contradicts these facts. It is true that some three years later, when he was vice president of the bank, the certificate of sale for the lands bought by the Western Hawaian Investment Company was assigned to him as trustee for the bank; but at this time the plaintiff and all the defendants herein had lost all rights to the land by foreclosure sale, and the rights which he acquired as trustee for the bank and afterwards from it for himself were not acquired as a redemptioner or in any confidential or fiduciary character, but as a purchaser from one who had rightfully acquired all rights of the plaintiffs in the lands purchased, and not for the purpose of perfecting any questionable rights he might have in the property as against the plaintiff. We fail to see wherein the claim of purchase by Townley for the joint benefit of himself, Wright, and the bank is established.

Inadequacy of price is also relied upon and strenuously urged to set aside this sale The same rule applies to this sale as to the sales to Marshall and the investment company cited, supra. Townley was not acting as trustee or in any confidential relation to the plaintiff or the trustees. He was merely a tenant whose rights were being interfered with by an execution issued at the request of plaintiff upon a judgment prior to his lease, and as such tenant he had a right to purchase the lands. 18 Am. Eng. Ency. Law, 423. The plaintiff and at least one of the trustees knew of the issuance of the execution, and the trustee was present at the sale, and under such circumstances it cannot be presumed that the purchase was for the benefit of the trustees or the plaintiff. The only question then is: Was the price so grossly inadequate as to come within the rule cited, supra? The mortgages upon these lands have been heretofore mentioned, and at the time of sale a foreclosure suit by the Farmers' & Traders' Bank of La Grande was pending, and the title to much of the 1,800 acres embraced in Tule Lake was in dispute, and owners of bordering fractional lots were