title and estate as the bankrupt then had; if to the order of sale, then that is the time to which his right is referred. But in neither case can a sale devest a lien "existing before or at the time," or "immediately" before such order. Thus taken, the Bankrupt Act is an affirmance of the universal principle as laid down by the Supreme Court in Rankin v. Scott (12 Wheaton, 179), "that a prior lien gives a prior claim, which is entitled to a prior satisfaction out of the subject it binds," unless it be defective, or the party holding it has done some act to postpone him; and that a purchaser is bound by the lien unless there is a prior act of the Legislature to protect him from it. (12 Wheat., 80.) The second question, therefore, is answered in the negative. What constitutes notice of a trust? An agent, employed by a trustee in the managequires a knowledge of the trust, is, if he afterwards ment of the trust property, and who thereby acbecomes possessed of the trust property, bound by the trust, in the same manner as the trustee. purchaser has full means of acquiring complete Where, upon the face of the title papers, the knowledge of the title from the references therein made to the origin and consideration thereof, be will be deemed to have constructive notice thereof. the same title as the other proprietors, is presumed A coproprietor of real property, derived under to have full knowledge of the objects and purposes and trusts attached to the original purchase, and for which it is then held for their common benefit. covenant or warranty, is not entitled to protection A purchaser by a deed of quitclaim without any in a court of equity as a purchaser for a valuable consideration, without notice; and he takes only what the vendor could lawfully convey. A warranty, either lineal or collateral, is no bar to an heir who does not claim the property to which the warranty is attached by descent, but as a purchaser thereof. Whether a bill in equity is open to the objection of multifariousness or not, must be decided upon all the circumstances of the particular case. No general rule can be laid down upon the subject: and much must be left to the discretion of the court. The objection of multifariousness can be taken by a party to the bill only by demurrer, or plea, or answer, and cannot be taken at the hearing of the cause. But the court itself may take the objection at any time at the hearing or otherwise. The ob court. Trusts-option of cestui que trust to take pro-Jection cannot be taken by a party in the appellate ceeds or follow property into hands of one not a bona fide purchaser not controlled by repurchase by trustee-judgment against trust property-collusion of trustee with purchaser-cestui que trust not party to foreclosure appointment by two land companies of one agent to buy at sale of public land not a fraud-subsisting trust-lapse of time no bar-laches of some of the cestuis que trust-joinder of parties defendants-multifariousness-objections— Where exceptions are taken to a master's report, 68 warranty of ancestors no estoppel of heirs olaiming by purchase. In cases of trust, where the trustee has violated his trust by an illegal conversion of the trust property, the cestui que trust has a right to follow the property into whosoever hands he may find it, not being a bona fide purchaser for a valuable consideration, without notice. Where a trustee has, in violation of his trust, invested the trust property or its proceeds in any other property, the cestui que trust has his option, either to hold the substituted property liable to the original trust, or to hold the trustee himself personally liable for the breach of the trust. The option, however, belongs to the cestul que trust alone, and is for his benefit, and not for the benefit of the trustee. If the trustee, after such an unlawful conversion of the trust property, should repurchase it, the cestui que trust may, at his option, either hold the original property subject to the trust, or take the substituted property in which it has been invested, in lieu thereof. And the trustee, in such a case, has no right to insist that the trust shall, upon the repurchase, attach exclusively to the original trust property. Where the trust property has been unlawfully invested, with other funds of the trustee, in other property, the latter, in the hands of the trustee, is chargeable pro tanto to the amount or value of the original trust property. NOTE. Cestui que trust may follow trust property in hands of third person who purchases, unless he is a bona fide purchaser without notice for value. Purchaser of trust estate, with knowledge of the trust, is subject to all the duties of the original trustee in respect to the same. See note to Wormley v. Wormley, 5 L. ed. U. S. 651; and note to Hughes v. Edwards, 6 L. ed. U. S. 142. Trustee cannot purchase trust property. Employed real property. The bar does not begin to run until Lapse of time is no bar to a subsisting trust in knowledge of some overt act of an adverse claim or right set up by the trustee is brought home to than twenty years will not bar the cestui que trust the cestui que trust. The lapse of any period less of his remedy in equity, although he may have been guilty of some negligence, where the [*334 of the breach of trust, or others claiming under suit is brought against his trustee, who is guilty him with notice. it is not necessary for the court formally to allow or disallow them on the record. It will be suffcient if it appears from the record that all of them have been considered by the court, and allowed or disallowed, and the report reformed accordingly. There is no principle of the common law which forbids individuals from associating together to purchase lands of the United States on joint ac count at a public sale. of the United States for the District of Ohio, This was an appeal from the Circuit Court sitting as a court of equity. The record was very voluminous, consisting of nearly eight hundred printed pages. The acts and declarations of the parties were given in evidence, running through a period of twenty years; and the case being an appeal from the decree of the Circuit Court, as a court of equity, all this matter was brought up to the Supreme Court. It is impossible, therefore, to put into this statement all the circumstances which had a bearing upon the point in issue, which was, whether a trust did or did not continue in a valuable body of land. The leading incidents in the history of the case are these: In the summer of 1817, two distinct com See to buy for another cannot buy for himself. His pur- Length of time is no bar to a trust. When time begins to run. See note to Prevost v. Gratz, 5 L. ed. U. S. 311. panies were formed at Cincinnati for the purpose of purchasing lands at the public sales of the United States, to be shortly held at Wooster, in the State of Ohio; the object being to lay out and establish a town in the reserve of twelve miles square on the Miami of Lake Erie, since called the Maumee River. One company, called the Piatt Company, was composed of the following persons: John H. Piatt, William M. Worthington, Gorham A. Worth, and Robert Piatt, the plaintiff in the suit below, and now defendant in error. The other company was called the Baum Company, and composed of the following persons: Martin Baum, Jacob Burnett, William C. Schenck, William Barr, William Oliver (one of the plaintiffs in error), Andrew Mack, and Jesse Hunt. What the articles of agreement were between the members of the Piatt Company the record did not show. On the 7th of June, 1817, the Baum Company entered into the following articles of agreement-Mack being admitted to half a share, the whole interest was divided into thirteen parts, whereof Mack held one thirteenth and each of the other persons two thirteenths: "We, the undersigned, agree to enter into a partnership for the purpose of purchasing lands and lots at the public sales to be held at Wooster, on the seventh and fifteenth of July next; and for the purpose of effecting the said purchases, we agree to borrow, at the office of discount and deposit at Cincinnati, the sum of eight thousand dollars, for which sum, and for all purchases made by our agents, either at the public sales or otherwise, we hold ourselves 335*] *jointly and equally liable. And we do further agree that William C. Schenck, William Barr, and William Oliver shall be our agents to explore the lands and make the purchases. And we do agree to confirm and comply with any contracts that our agents aforesaid may make on our account. And it is further agreed that our said agents shall be authorized to take in any other partner or partners that they may see proper, on such terms as they may esteem advantageous. And it is further agreed that in consideration of the services to be performed by the agents above, their expenses, incident to making the purchases aforesaid, shall be defrayed by the other individuals comprising the company. "In witness whereof, we have hereunto set our hands and seals, at Cincinnati, this the seventh day of June, eighteen hundred and seventeen. [seal.] [seal.] Martin Baum, "Jesse Hunt, "J. Burnet, [seal.] "W. C. Schenck, [seal.] "W. Barr, [seal.] "William Oliver, [seal.]" The Piatt Company appointed Robert Piatt its agent. On the 23d of June, 1817, Worthington, John H. Piatt, and Worth addressed a letter of instructions to Robert Piatt, their agent, directing him how to proceed, and inclosing $4,000 to make the first payment on the lots of land which he might purchase. The agents having made their selections, met at Wooster to attend the sales, and then ascertained that they had each selected the following tracts, viz.: 1, 2, 3, 4, 86, and 87. In consequence of this, the following agreement was entered into, viz.: "We, the undersigned, agree, on behalf of the companies we represent, to wit: William C. Schenck, of Warren County, Ohio, and William Oliver, of Cincinnati, Ohio, for themselves, and for Jacob Burnet, Martin Baum, Jesse Hunt, William Barr, and Andrew Mack, all of Hamilton County, Ohio; and Robert Piatt of Boon County, Kentucky, for himself, and for William M. Worthington, John H. Piatt, and Gorham A. Worth, all of Hamilton County, Ohio, to purchase at the public sales, in July, 1817, at Wooster, lots numbered 1, 2, 3, and 4, at, and including, the mouth of Swan Creek, in township No. 3, in the United States reserve, at the foot of the rapids of the Miami of the Lakes, for the joint benefit of both companies: that is, one company to have one half interest in the whole, and the other company to have the other half; each company paying one half of the purchase money. It is further agreed that Robert Piatt, in behalf of his com pany and the company of Schenck and Oliver, shall be the bidder for lots Nos. 1 and 2, and William Oliver for lots Nos. 3 and 4, they being the above four lots at the mouth of Swan Creek. *"In witness whereof, the parties [*336 have hereunto interchangeably set their hands and seals, this 17th day of July, 1817. "W. C. Schenck, [seal.] "William Oliver, [seal.] "Robert Piatt. [seal.]" And afterwards the following: "The undersigned have agreed to purchase, for the joint benefit of their companies, lots or tracts of land numbered 86 and 87, opposite the mouth of Swan Creek, on the same principles that lots numbered 1, 2, 3, and 4, at the mouth of Swan Creek, were purchased, as per agreement between William C. Schenck and William Oliver, for themselves and others, and Robert Piatt for himself and others, bearing date 17th July, 1817. "Robert Piatt, [seal.] "William Oliver, [seal.]" On the 18th of July, 1817, in conformity with the above agreements, William Oliver bid in lots No. 3 and 4, and on the 19th of July, Robert Piatt bid in tracts 1, 2, 86 and 87. The original certificates for the tracts bid in by Oliver, were made out in his name, and for the tracts bid in by Piatt, in the names of himself, John H. Piatt, Worth, and Worthington, in conformity with the letter of instructions addressed to him on the 23d of June. On the 21st of July, 1817, Robert Piatt bid in, for the separate account of the Piatt Company, the following other tracts, viz.: Northwest quarter-section 2, township 3. Southwest quarter-section 2, township 3. Southwest quarter-section 3, township 3. Northwest quarter-section 3, township 3. Southeast quarter-section 3, township 3. The first installment of the purchase money for which was paid by the Piatt Company. On the 4th of August, 1817, Robert Piatt settled an account with the Piatt Company, giving them credit for the four thousand dollars | above mentioned, and charging them with one half of the installments which had been paid upon Nos. 1, 2, 3, and 4, and with the whole of the installments which had been paid upon Nos. 86 and 87, and upon the five quarter-sections. After the return of the agents to Cincinnati, a meeting of both companies was held; the acts of the agents at Wooster were ratified, and the two companies were, in respect to their joint purchases, consolidated in a new company called the Port Lawrence Company. Martin Baum was appointed trustee, for the purpose of carrying out a resolution of the company that a town should be laid out upon a part of the land. It was further agreed that Oliver should be appointed an agent to lay out the town and make sale of the lots; and he was directed, in perform337*] ing this duty, to call to his assistance William C. Schenck, another of the original members of the Baum Company. Each of the companies purchased other lands upon its own private account. On the 14th of August, 1817, Oliver executed a bond to Baum in the penal sum of twenty thousand dollars, the condition of which was as follows: "Whereas, the above named Martin Baum hath this day constituted and appointed the before bound William Oliver his agent, with power to lay out a town at the mouth of Swan Creek, on the Miami of the Lakes, and hath authorized the said William to sell and dispose of the lots in said town, agreeably to a letter of instructions, and to receive payment for the same from the purchasers, and to execute and deliver certificates, in the nature of title bonds, for the lots by him sold. Now, the condition of the above obligation is such, that if the said William Oliver shall in all things well and truly execute the trust reposed in him by the said Martin Baum, and shall render a true account of his proceedings, when required, and shall faithfully pay over to the said Martin all moneys by him received for or on account of sales made in the town to be laid off by him, as aforesaid, when thereto required, then, and in such case, the above obligation shall cease and determine, otherwise remain in full force and virtue." On the same day, Baum executed a power of attorney to Oliver, as follows: "Known all men by these presents, that I, Martin Baum, of Cincinnati, in the State of Ohio, for divers good causes and considerations me thereunto moving, have made, constituted and appointed, and by these presents do make, constitute, and appoint William Oliver, of said place, my true and lawful attorney, for me and in my name, to sell and dispose of the lots in a town to be laid off at Swan Creek, on the Miami of the Lakes, agreeably to a letter of instructions therewith delivered, and to receive payment for the same from the purchasers, and to execute and deliver certificates, in the nature of title bonds, for the lots by him sold, and to do all lawful acts requisite for effecting the premises, hereby ratifying and confirming all that my said attorney shall lawfully do therein by virtue hereof. In testimony whereof," &c. On the same day Baum delivered to Oliver a letter and a set of instructions. The letter is as follows: "Cincinnati, August 14th, 1817. "Sir: You will observe by the power of attorney this day handed to you, that you are appointed an agent to lay out a town at the mouth of Swan Creek, on the Miami of Lake Erie. Your appointment is for one year, commencing this day; for which services so rendered, you are entitled to receive from the proprietors twelve hundred dollars. And the proprietors of the lands lying in that country, but which is a distinct concern from the [*338 above, have agreed to allow you three hundred dollars for attending to their separate business. "Your obedient servant, "Mr. W. Oliver. Martin Baum." The instructions were as follows: "Cincinnati, 14th August, 1817. "Dear Sir: As agent for the proprietors of the land recently purchased at Swan Creek, you will, immediately upon the receipt of these instructions, proceed to that place, and commence the laying off a town. General Schenck, who accompanies you, will assist in the survey of the ground, in determining the site, and in the arrangement and formation of the plat. In running the streets, and in the division of the lots, it is not the wish of the proprietors that interest or convenience should be sacrificed to form; that the growth of the place should be retarded by useless adherence to any particular figure, or to any fanciful uniformity of squares. The number of lots to be laid off may be from three to five hundred, and, with the exception of water lots and fractional sections, of about sixty feet in front, and one hundred and twenty feet in depth. The principal or central street should be at least one hundred and sixty feet wide; others from eighty to a hundred; the alleys from twelve to fifteen. Let there be three lots, each of one hundred and twenty feet square, set off for public uses, churches, schools, &c.; and one, of two hundred and forty feet square, for court-house and jail. There should also be reserved one or two suitable lots out of the town for burying grounds. It is not, however, the intention of the proprietors to tie the agent down to any specific number of feet and inches in the width of the streets or size of the lots, but they leave to him the exercise of his own judgment, and recommend to him the use of that sound discretion which his better knowledge of the ground, and his practical information, will enable him to display, to the interest and advantage of all concerned. "As soon as the surveys have been made, and a plat of the town formed, it is necessary that a copy of them should be immediately forwarded to the proprietors, as also a notice of the time of sale, which, if practicable, should correspond with the time of holding the treaty with the Indians; and on this subject it is necessary that the agent should obtain the earliest information. In the disposition and arrange ments of the lots for sale, let one third of the whole number taken in different sections of the town be reserved for the use and benefit of the proprietors, or for future disposal. "The terms of sale, one fourth down, and the residue in three equal annual installments, with interest from date, if not punctually paid, subject, however, to such variations as the judgment of the agent may dictate, or particu lar circumstances require. An Immediate correspondence is to be opened by the agent with 339*] Martin Baum, Esq., of this city, who will act as trustee for the proprietors, and any informations given to him in relation to the business of the agency, the sale of the lots, and the progress of the town, that may be thought of any consequence to the interests of the proprietors, or that may be required by the trustee. It is the intention of the proprietors to give public notice of the time of the sale, and it is necessary that this notice should be as general and as widely spread as possible; the agent will, therefore, immediately, upon the times being fixed, forward the proper advertisement to Detroit, Buffalo, Albany, New York, Philadelphia, Pittsburg, Chillicothe, and to the trustee in this city, for publication. The instructions of the trustee are, in all respects, to be regarded as coming from the proprietors themselves. "Wishing you a safe and pleasant journey, and an easy and prosperous management of the trust committed to your care, we remain, with great respect, &c., your obedient servant, "Martin Baum. "Trustee for the Proprietors. "To Major Wm. Oliver." In another part of the record, the same paper is found, with a few and unimportant variations, but the names of these persons are signed to it, viz., Barr, Mack, Burnet, Worthington, Hunt, John H. Piatt, Worth, and Baum. The agents proceeded to lay out a town, and on the 20th September, 1817, offered the lots for sale, according to the following advertisement: "Terms of Sale. "Terms of sale of lots in the town of Port Lawrence: One fourth down; the balance in three equal annual installments, with interest from the date of purchase, if not punctually paid; and if the whole amount of the purchase money is not paid when the last installment becomes due, the lots now purchased shall revert to the proprietors of Port Lawrence. The undersigned reserve the privilege of one bid on each lot offered. W. C. Schenck, "William Oliver, Agents. "Miami Rapids, Sept. 20, 1817." At the sale, seventy-nine lots were sold. Two of them, viz., Nos. 223 and 224, were purchased by Oliver himself, with the assent, as he alleged in his answer, of the company, and of Martin Baum, the trustee. On the 5th of October, 1817, Schenck gave to Oliver the following receipt: "Miami Rapids, Oct. 5, 1817. "Received from William Oliver, agent, eight hundred and fifty-five dollars and thirty-three cents, the proceeds of sales of lots in the 340*] *town of Port Lawrence, for which I am accountable to Martin Baum, of Cincinnati. "$855.33. (Signed duplicates.) "W. C. Schenck." On the 14th of August, 1818, Oliver, as it was alleged by him in his answer to the bill, sold and transferred one half of his interest in the Baum Company, and also in the Port Lawrence Company, to Steele & Lytle, they assuming all outstanding liabilities; and in an early part of the ensuing spring, the remaining half of his interest in both companies to Embree & Williams. On the 19th of September, 1818, Oliver and Worthington made a division of the lots in the town of Port Lawrence, between Martin Baum and John H. Piatt, these persons representing their respective companies. One hundred and fifty-seven lots were assigned to Piatt, and one hundred and fifty-eight to Baum. On the 24th of April, 1820, Congress passed an act, entitled "An Act making further provision for the sale of the public lands," changing the mode of selling lands from credit to cash, and reducing the price from two dollars to one dollar and twenty-five cents per acre. The effect of this law, and of the general embarrassment in the business of the country which occurred about this period, was, as it was alleged in the answer to the bill, to depress the prospects of the companies before mentioned, and the pecuniary condition of the individual members thereof, to such an extent that they resolved to abandon the lands, and forfeit them to the United States, rather than pay the installments which were still due. But before this was done, the intention was changed by another act of Congress. On the 2d of March, 1821, Congress passed "An Act for the relief of the purchasers of public lands prior to the first day of July, 1820," which allowed a purchaser to file a relinquishment of the land so purchased, upon which the whole purchase money had not been paid, and apply the sums which had already been paid for such land, to the completion of payments which might be due upon any other land. On the 15th of September, 1821, Oliver transferred to Baum the certificates of Nos. 3 and 4, which he had bid for at the public sale, as heretofore described; and on the 17th of September, John H. Piatt, Robert Piatt, G. A. Worth, and William M. Worthington, united in transferring to Baum the certificates for the Nos. 1, 2, 86, and 87, which they had bid for at the sale; and by the same instrument the last mentioned parties also transferred to Baum the certificates for the five quarter-sections, which it has already been stated the Piatt Company purchased on their own private account, at the public sale. Both transfers [*341 were absolute, to Martin Baum, his heirs and assigns, forever. On the 27th of September, 1821, Baum, to whom the certificates had thus been assigned, filed, by Micajah T. Williams, his attorney in fact, a relinquishment of tracts Nos. 1 and 2, and requested that the proceeds of former installments might be applied to the completion of the payments still due upon 3, 4, 86, 87, and the five quarter-sections. The consequence of this transaction was, that as Nos. 1 and 2 had been bought at a much higher price than the other tracts, the credit acquired on the books of the government by their relinquishment was 625 40 more than enough to complete the payments for all the other lands mentioned above, and a surplus existed, in the form of land scrip, which might either have been sold or applied to a payment for other lands. Four hundred and seventy-four dollars and fifty-nine cents of this scrip belonged to the Piatt Company, and was applied by the Baum Company in payment for lands which that company had purchased. The following is the account: Lands not Surrendered. 66 87. 5 quarter-sections. 3,802 50 $607 354 In January, 1823, Baum came into arrangements with some of those who had purchased town lots, and to whom he was unable to give a title, agreeing for himself and his associates to repurchase the lots and refund the money which he had received on them. On the 3d of February, 1823, Oliver addressed the following letter to Robert Piatt, which was received by him: "Cincinnati, February 3d, 1823. "Dear Sir: I have been anxious to see you in relation to the Port Lawrence business, and $1,015 051⁄2 was on the eve of setting off yesterday for your house, but have concluded to write, requesting the favor of your attention to the matter. In consequence of the company's securing the Port Lawrence property, they are liable to the purchasers for the money received for lots; and as some of my friends in Detroit were disposed to bear pretty hard on me for advising them to purchase, I authorized Colonel Hunt to redeem the certificates of sale from those who had purchased by my advice. The payments made in this way were upwards of $400. M. Baum's company have refunded their proportion, but my claim ($213.07, which is from the 10th of last September, 1822) against you is unsatisfied; and as we are at a loss to know the particular interest of the members of your company, I must ask the favor of your stating the present proprietors, and their respective interests in the concern. Please say when it will be convenient for you to arrange your proportion, as also to request Mr. Grandon to pay on his share or shares. Respectfully, your obedient servant, "Will. Oliver. On the 27th of September, 1821, Oliver made a memorandum, or addressed a letter to some person, stating several particulars which he had attended to at Maumee, directing the land to be run out, counsel to be employed, &c., &c. On the 20th of January, 1822, Baum presented a petition to Congress, representing that he had laid out a town upon tracts Nos. 1 and 2, and sold a number of lots to persons to whom he was bound to give a title; that in consequence of the late law of Congress, reducing the price of the public lands, he had been obliged to surrender them; and praying that Congress would authorize an immediate sale of those two tracts of land, so as to give him an opportunity to repurchase them at a fair price, and thus be enabled to fulfill his engagements to those who had purchased of him. On the 10th of September, 1822, Baum gave to Oliver the following certificate: seven "Cincinnati, Sept. 10, 1822. "It is hereby certified, that there is due William Oliver, from the Port Lawrence Company, two hundred and thirteen dollars and cents, which said Oliver refunded, by request of the company, to purchasers of lots in Port Lawrence, the title of which has been relinquished to the United States by the company; it being 342*] the amount due on the shares originally owned by John H. Piatt, Robert Piatt, G. A. Worth, and William M. Worthington. "Martin Baum, "Agent for the Port Lawrence Land Company." On the 25th of December, 1822, Baum addressed a letter to the Hon. E. A. Brown, Washington city, inclosing his petition, to be again presented, and saying, amongst other things, "though it is signed by myself only, still others have an interest in it, to wit, Jacob Burnet, William Steele, M. T. Williams, S. R. Miller, John Rowan, of Kentucky; but, for the sake of convenience, all the lands of the company were transferred to me. The petition gives a true statement of facts; the grounds why those tracts were surrendered to the United States; the injurious operation of the law of Congress (called the relief law) in the case; and the just claim which (I think) I and my associates have on the government for redress," &c., &c. "R. Piatt, Esq." On the 6th of February, 1823, Baum addressed another letter to Mr. Brown upon the subject of his petition, representing that the case was a ruinous one to him and his associates, &c., &c. On the 3d of June, 1823, Oliver exhibited an account against "Martin Baum and [*343 his associates," running from 1818 to June, 1823, and bringing them in debt to Oliver in the sum of $1,835.47. On the 27th of August, 1823, Baum mortgaged to Oliver tracts Nos. 3, 4, 86, and 87, to secure the payment of the above sum of $1,835.47 with interest from the 1st of September, 1823. The payment was to be made on or before the 1st of January, 1824. On the 31st of January, 1824, Baum addressed a letter to the proprietors of the Maumee and Sandusky Land Company, accompanied by an account between himself and the proprietors of Port Lawrence. as follows: The letter was "Cincinnati, 31st January, 1824. "To the Proprietors of the Maumee and Sandusky Land Co. "Dear Sir: Inclosed, I hand you a statement of the Port Lawrence land speculation, by which you can see how that business stands, to wit, a balance due me by the company of upwards of $4,755, and is daily increasing with interest. Suits have been commenced against me for the restoration of the money which was paid the company for lots, and the amount of |