suing by their next friend, against the appel- in the purchase of other lands, advantageously lants, Hugh W. Wormley, her husband, Thomas for those concerned and interested therein, that Strode, as trustee, Richard Veitch, as original | then, and in that case, the said Thomas Strode purchaser, and David Castleman and Charles is hereby authorized, &c., to sell, and by proper M'Cormick, as mesne purchasers from Veitch of the trust property, for the purpose of enforcing the trusts of a marriage settlement, and obtaining an account, and other equitable relief. The bill charged the sale to have been a breach of the trusts, and that the purchasers had no-parties, that the said H. W. W., under leave of tice.

deeds of writing to convey the same; and the lands so purchased shall be in every respect subject to all the provisions, uses, trusts and contingencies, as those were by him sold and conveyed. And it is further understood by the the said Thomas Strode, his heirs and assigns, shall occupy and enjoy the hereby conveyed estate, real and personal, and the issues and profits thereof, for and during the term of his natural life, and after that, the said estate to be divided agreeably to the foregoing contingencies.”

The property conveyed by the indenture consisted of about 350 acres of land, situate in Frederick county, in Virginia. The marriage took effect, and there are now four children by the marriage. For a short time after the marriage, Wormley and his wife resided on the Frederick lands; and a negotiation was then entered into by Wormley and the trustee, for the exchange of the Frederick lands for lands of the trustee, in the county of Fauquier. Various reasons were suggested *for this [*425 exchange, the wishes of friends, the proximity to the trustee and the other relations for the wife

In contemplation of a marriage between Hugh W. Wormley and Mary Wormley (then Strode), an indenture of three parts was executed on the 5th of August, 1807, by way of marriage settlement, to which the husband and wife, and Thomas Strode, her brother, as trustee, were 423*] parties. *The indenture, after reciting the intended marriage, in case it shall take effect, and in bar of dower and jointure, &c., &c., conveys all the real and personal estate held by Hugh W. Wormley, under a certain indenture specified in the deed, as his paternal inheritance, to Thomas Strode, in fee, upon the following trusts, viz., "for the use, benefit and emolument of the said Mary and her children, if any she have, until the decease of her intended husband, and then, if she should be the longest liver, until the children should respectively arrive at legal maturity, at which time each indi-and the superior accommodations of the family vidual of them is to receive his equal dividend, &c., leaving at least one full third part of the estate, &c., in her possession, for and during her natural life; then, on her decease, the landed part of the said one-third to be divided among the children, &c., and the personal property, | &c., according to the will, &c., of the said Mary, at her decease. But if the said Mary should depart this life before the decease of the said Hugli W. Wormley, then he is to enjoy the whole benefits, emoluments and profits, during his natural life, then to be divided amongst said W.'s children, as he by will shall see cause to direct, and then this trust, so far as relates to T. Strode, to end, &c.; and so, in like manner, should the said Mary depart this life without issue, then this trust to end, &c. But should Wormley depart this life before the said Mary, and leave no issue, then the said Mary to have and enjoy the whole of said estate for and dur424* ing her natural *life, and then to descend to the heirs of the said W., or as his will relative thereto may provide."

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Then follows this clause: And it is further covenanted, &c., that whenever, in the opinion of the said Thomas Strode, the said landed property can be sold and conveyed, and the money arising from the sale thereof be laid out

trustee for the other, upon the payment of any money advanced in making the purchase. Rothwell V. Dewees, 2 Black. 613; Baker v. Whiting, 3 Sumn. 475; Phillips v. Crammond, 2 Wash. C. C. 441. Where an attorney purchased property, on an execution issued by him, on a judgment in which he was the attorney for the party recovering; held, that a trust was thereby created for the benefit of his client, the judgment creditor. Stockton v. Ford, 11 How 232.

A trustee is disqualified from purchasing or acquiring an interest adverse to that of his cestui que trust in the trust property. Walden v. Bodley, 14 Pet. 156; Prevost v. Gratz, Pet. C. C. 364; Lenox v. Notrebe, Hempst. 251; Michoud v. Girod, 4 How. 503; Sloo v. Law, 3 Blatchf. 459; Matter of Thorp. Davies, 290.

of Wormley. The negotiation took effect; but
no deed of conveyance or covenant of agree-
ment, recognizing the exchange, was ever made
by Wormley; and no conveyance of any sort,
or declaration of trust, substituting the Fau-
quier lands for those in the marriage settlement,
was ever executed by the trustee. Wormley
and his family, however, removed to the Fau-
quier lands, and resided on them for some time.
During this residence, viz., on the 16th of Sep-
tember, 1810, the trustee sold the Frederick
lands by an indenture, to the defendant, Veitch,
for the sum of five thousand five hundred dol-
lars; and to this conveyance Wormley, for the
purpose of signfying his approbation of the sale,
became a party. The circumstances of this
transaction were as follows: The trustee had
become the owner of a tract of land in Culpep-
per county, in Virginia, subject to a mortgage
to Veitch and one Thompson, upon which more
than $3,000 were then due, and a foreclosure
had taken place. To discharge this debt, and
relieve the Culpepper estate, was a leading ob-
ject of the sale, and so much of the trust money
as was necessary for the extinguishment of this
debt, was applied for this purpose.
same time, Strode, as collateral security to
Veitch for the performance of the covenant of

At the

Where a person acquires the legal estate in real property as the agent of another, or upon a trust and confidence that he will acquire it for the benefit of such other, equity will imply a trust in favor of the latter, and compel the purchaser to account to him accordingly. Such a transaction is ot within the statute of frauds, and therefore e trust need not be in writing. Manning v. Hayde 5 Sawyer, 360; Church v. Kidd, 3 Hun. N. Y. 25 Ryan v. Dox, 34 N. Y. 307; Moyer v. Moyer, 21 Hui N. Y. 67.

A purchaser of trust estate, with knowledge of the trust, is subject to all the duties in respect to the same which rested upon the trustee from whom he purchased. Gautier v. Doug. Man. Co., 13 Hun. N. Y. 514; Williams v. Thorn, 11 Paige, 459; Amory v. Lawrence, 3 Cliff. 323.

general warranty contained in the indenture, | *the defendants, and of the value of the [*428 executed a mortgage upon the Fauquier lands, permanent improvements made thereon, and of In the advances which have been made to the said then in the possession of Wormley. 426*] *1811, Veitch conveyed the Frederick Hugh Wallace Wormley by any of the defend lands to the defendants, Castleman and M'Cor- ants, for the support of his family; the said admick, for a large pecuniary consideration, in vances to be credited against the rents and profpursuance of a previous agreement, and by the its, and the value of the said permanent imsame deed made an equitable assignment of the provements, and of the incumbrances which About this have been discharged, and which may not be mortgage on the Fauquier lands. time, Wormley having become dissatisfied with abated by the rents and profits, to be charged the Fauquier lands, a negotiation took place for on the land itself; and it is referred to one of his removal to some lands of the trustee in Ken- the commissioners of the court to take accounts tucky; and upon that occasion a conditional according to their directions, and report," &c. The court, afterwards, partially confirmed the agreement was entered into between the trustee 'And it being and Wormley, for the purchase of a part of the report which had been made, reserving some Kentucky lands, in lieu of the Fauquier lands, questions for its future decision: at a stipulated price, if Wormley should, after represented on the part of the plaintiffs that his removal there, be satisfied with them. they have removed to the state of Kentucky, Wormley accordingly removed to Kentucky and are about removing to the state of Missiswith his family; but becoming dissatisfied with sippi, and that it will be highly advantageous to the Kentucky lands, the agreement was never them to sell the trust estate, and to invest the carried into effect. Afterwards, in April, 1813, proceeds of sale in other lands in the state of Castleman and M'Cormick, by deed, released Mississippi to the uses and trusts expressed in the the mortgage on the Fauquier lands, in consid- deed of August 5th, 1807; and it appearing, eration that Veitch would enter into a general also, that there is no fund other than the trust covenant of warranty to them of the Frederick estate from which the sum due to the defendlands; and on the same day the trustee exe- ants, Castleman and M'Cormick, can be drawn, cuted a deed of trust to one Daniel Lee, sub- this court is further of opinion that the said jecting the Kentucky lands to a lien as security trust estate ought to be sold, and the proceeds for the warranty in the conveyance of the Fred- of sale, after paying the sum due to the defenderick lands, and subject to that lien, to the ants, Castleman and M'Cormick, invested in trusts of the marriage settlement, if Wormley other lands in the state of Mississippi, to the should accept these lands, reserving, however, same uses and trusts," &c. The sale, therefore, to himself, a right to substitute any other lands was decreed; commissioners were appointed to upon which to charge the trusts of the marriage make it; the *proceeds to be first applied [*429 settlement. At this period the dissatisfaction of in satisfaction of the sums found due by the Wormley was known to all the parties, and commissioner's report, and the balance to be Wormley was neither a party, nor assented to paid to the trustee, to be invested by him in 427*] the deed, and *Castleman and M'Cor- lands lying in Mississippi, " for which he shall In take a conveyance to himself in trust, for the mick had not paid the purchase money. August, 1813, the trustee sold the Fauquier uses and trusts expressed in the deed of 5th of lands to certain persons by the name of Grim- August, 1807, &c., and the court being of opinmar and Mundell, without making any other ion that Thomas Strode is an unfit person to reprovision for the trusts of the marriage settle- main the trustee of the plaintiff, doth further order, that he shall no longer act in that character," &c., and proceed to appoint another in his stead, of whom bond and surety was required.

ment.

M'Cormick shall sign and deliver to the marshal, or his deputy, who is directed to make the said sale, an instrument of writing, declaring that should the decree rendered in this cause be reversed in whole or in part, they will not claim restitution of the lands sold, but will consent to receive in lieu thereof the money for which the same may be sold; which instrument of writing the marshal is directed to receive, and to file among the papers in the cause in this court."

At the hearing, the court below pronounced a decree declaring "that the exchange of land made between the defendants, Hugh W. WormSo much of this last decretal order as directs a ley and Thomas Strode, is not valid in equity, and that the defendant, Thomas Strode, has sale of the property therein mentioned, was committed a breach of trust in selling the land suspended until the further order of the court, conveyed to him by the deed of the 5th of Aug-unless the said David Castleman and Charles ust, 1807, for purposes not warranted by that deed, in misapplying the money produced by the said sale, and in failing to settle other lands to the same trusts as were created by the said deed; and that the defendants, Richard Veitch, David Castleman, and Charles M'Cormick, are purchasers with notice of the facts which constitute the breach of trust committed by the said Thomas Strode, and are, therefore, in equity, considered as trustees; and that the defendants, David Castleman and Charles M'Cormick, do hold the land conveyed, &c., charged with the trusts in the said deed mentioned, until a court of equity shall decree a conveyance thereof. The court is further of opinion that the said defendants are severally accountable for the rents and profits arising out of the said trust property while in possession thereof, and that the said defendants, Castleman and M'Cormick, are entitled to the amount of the incumbrances from which the land has been relieved by any of

So much of the decretal order as directs the land to be sold to the highest bidder, was subsequently set aside, and until the appointment of a trustee, the marshal directed to receive propositions for the land, and to report the same to the court, which would give such further directions respecting the sale of the said land as shall then appear *proper. [*430 Whereupon, the defendants appealed from all the decrees pronounced in the cause.

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