or to reconvey it; but he does hold it in equity, and no act of his ought to prejudice the cestui que trust. The lapse of time is nothing, unless it appear that he knew the purchase by the trustee, and must, therefore, be presumed to have acquiesced. But here no such knowledge is proved, and, therefore, no such acquiescence can be presumed. (2.) They insisted, that S. Gratz had no right to purchase the lands sold at the sheriff's sale under the M'Ilvaine judgment; but under the circumstances of the case ought to be considered as holding them in trust for the plaintiff. This being a proceeding without any notice to the party interested, cannot be sustained. The notice given by the scire facias was only to B. Gratz, the executor of G. Croghan: that is, the owner of the judgment revived it by notice to himself. It is a settled principle, that an executor cannot purchase the property of his testator; and the purchaser of an equity takes it subject to all claims. Besides, this is a judgment which the law would presume to be satisfied from length of time; which is attempted to be executed by the judgment creditor who has in his own hands the funds with which it was to be satisfied, and thus attempts to convert a legal right into an instrument of injustice, which forms a strong ground for equitable relief."

Mr. Pinkney and Mr. Sergeant, contra, contended, (1.) That the present plaintiff had no right, alone, to call the defendants to account for the alleged trust

a 12 Ves:

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b 2 Johns. Ch. Rep. 252. c 3 Ves. jun. 170.

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as to the Tenederah lands, nor jointly with other parties as the administrator de bonis non, with the will annexed, of G. Croghan. Equitable estates descend as well as legal estates. Mrs. Prevost, the heir of Croghan, died, while the supposed trust existed, leaving several children, besides the plaintiff, who ought also to have been made parties, if he is to be considered as suing as a parcener. The sale of the trust estate indeed extinguishes the right of the heirs to the land, but it entitles them to the money for which it was sold, which now represents and stands in the place of the land. Nor has Croghan's

will any effect upon the matter.

The will empow

ers a majority of his executors, (of whom B. Gratz during his life was always to be one,) to sell such of his lands as they should think fit, for the payment of his debts. It does not devise to the executors to be sold, but gives them a naked authority to sell and convey. Even admitting that the Tenederah lands fell within the authority, the executors could only have sold the equitable estate of Croghan, which on his death descended to his heir. But this supposes that very equitable estate, for the existence of which we contend. But the executors did not sell that equitable estate. M. Gratz, though one of those executors, did not sell under the will. He sold, not the equitable interest merely, but the whole estate, and threw the equitable claimants under Croghan, upon the surplus of the proceeds which he could not appropriate. To sell under the will, he must have had the sanction of the other executors, which he had not; and the plaintiff, as administrator de bonis non,

could not have authorized it, because he did not become administrator until M. Gratz had rendered a sale by his orders or consent impossible. The will, therefore, did not reach the case, and cannot now, in any degree, control it. Nor does the interest which creditors may have in the proceeds, make it personal estate in Croghan, or subject it to the control of his administrator de bonis non. (2.) The counsel argued that there was no sufficient proof of the existence of any such trust, as that alleged respecting the Tenederah lands, but that M. Gratz became the absolute owner of the lands, with the knowledge and consent of Croghan. Fraud is never to be presumed, especially after such a lapse of time; and even if the trust ever existed, equity will rather presume it to be satisfied, than indulge a presumption of fraud, where the parties are dead, and the evidence respecting the transaction is lost." Even if there was here a trust to sell, it was a trust to sell for a fixed price, created by a person of full age, and full knowledge of the circumstances, for the benefit only of the trustee and himself. The reason of the rule, that a trustee cannot purchase, is, that the trustee might be tempted from his duty, and buy at an inadequate price. Where the power is general, or, where other persons are interested in the execution of the trust, it may be conceived to be a salutary rule, though sometimes operating severely. But where the trustee is a creditor,

a 12 Ves. 261. 374. 2 Ves. 581. 3 P. Wms. 266. 2 Atk. 67. 3 Atk. 105. 3 Bro. Ch. Rep. 640. 2 Scho. & Lefr. 41. 71.

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March 13th.

where the price is fixed, and no one else is interested, it would be difficult to assign any good reason why the trustee might not be the purchaser. (3.) As to the M'Ilvaine judgment, they principally relied upon the same grounds which are stated in the opinion of the Court below, quoted infra in a note to the opinion of this Court in the present case.

Mr. Justice STORY delivered the opinion of the Court, and after stating the proceedings in the Court below, proceeded as follows:

The first point upon which the cause was argued, respects the tract of land on the Tenederah River. It appears from the evidence that this tract of land, containing 9,050 acres, was conveyed by Col. Croghan to Michael Gratz, by a deed bearing date on the 2d of March, 1770, for the consideration expressed in the deed of £1,800. The deed is upon its face absolute, and contains the covenants of general warranty, and for the title of the grantor, which are usual in absolute deeds; but are unnecessary in deeds of trust. At the time of the execution of the deed, Col. Croghan was in the State of New-York, and Michael Gratz was at Philadelphia. The land was, after the death of Col. Croghan, and in the year 1795, sold by Michael Gratz, to a Mr. Lawrence, in NewYork, for a large sum of money. The plaintiff contends that this conveyance made by Col. Croghan to Michael Gratz, though in form absolute, was in reality a conveyance upon a secret trust, to be sold for the benefit of the grantor; and in this view of the case, he contends farther, that he is entitled to be

allowed the full value of the lands at the time that the present suit was brought, upon the ground of a fraudulent or improper breach of trust by the grantee, or at all events, to the full amount of the profits made upon the sale in 1795, with interest up to the time of the Decree.

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Proof of the original existof

case.

The attention of the Court will, therefore, be directed, in the first place, to the consideration of the ence trust question, whether this was a conveyance in trust, and if so, of what nature that trust was; and, in the next place, whether that trust was ever lawfully discharged or extinguished. If there be still a subsisting trust, there can be no doubt that the plaintiff is entitled to some relief.

It appears from the evidence that Col. Croghan, and Bernard and Michael Gratz, were intimately acquainted with each other, and a variety of accounts was settled between them, from the year 1769, to a short period before the death of Col. Croghan. During all this period, Col. Croghan appears to have had the most unbounded confidence in them; and particularly by his will, made in June 1782, a short time before his decease, he named them among his executors, and gave to Michael Gratz, in consideration of services rendered to him, five thousand acres of land, and to his daughter Rachel Gratz, one thousand acres of land on Charter Creek, with an election to take the same number of acres in lieu thereof, in any other lands belonging to the testator. The situation of the parties, therefore, was one in which secret trusts might, probably, exist, from the pecuniary embarrassments in which

in

the

this