Glass et al. v. Greathouse. out. That by fraudulent means he procured the order of sale; that by like fraudulent means he procured the land to be appraised much below its real value; that by fraudulent means he prevented the sale, until the order was made that it should be sold at not less than one-half the appraised value; and that by fraud and collusion with Lewis, he caused the land to be struck off to Lewis, while in fact Lewis was acting for him, and bid in the land as his agent. As evidence of this last charge, it is stated that the amount bid for the land, and inserted as a consideration of the deed from Greathouse to Lewis, was $225, and the consideration of the deed from Lewis to Greathouse, was $226. It is further charged, that on January 30, 1844, Isaac Greathouse by deed duly executed, the consideration of which, as expressed, was "natural love and affection and fifty dollars in money," conveyed the same land to the defendant, Thomas Greathouse; and that at the time of the conveyance, Thomas Greathouse had full knowledge of the rights of the complainants, and of the truth of . the charges made against his father. It is further stated, that at the time of the death of their ancestor the complainants were infants, and that some of them had arrived at full age but a few years before the filing of the bill. The prayer of the bill is, that the defendants may be considered *as holding the land in trust for the complainants, and that [506 the defendant Thomas be decreed to convey the same to them; that the two defendants account for the rents and profits; and that the defendant Isaac account for the moneys in his hands, as appears by his settlement with the court in 1831; and for general relief. The bill was filed at the March term of the court of common pleas of Highland county, A. D. 1848. In his answer, Isaac Greathouse admits the death of Robert Glass, and that he was appointed his administrator. He admits there was personal property, and states the whole amount of assets which came into his hands. He admits the settlement with the court in March, 1831, at which time there appeared to be in his hands $350.66; but insists that, previous to that time, he had paid to the widow and guardian of the heirs of Glass, from the assets in his hands, considerable sums of money, which were not stated in the account, by the advice of his counsel; and that, in truth, there was but about sixty dollars, belonging to the estate, in his hands Glass et al. v. Greathouse. at the time of the commencement of the suit by Allison, and which he paid over to Allison after the rendition of the judgment. He admits the commencement of the suit by Allison, but denies that it was done by collusion; denies that he knew or was informed that the claim had been paid, or that he knew of any other defense in the case than the defense which was actually made; alleges that in this whole transaction he acted with the utmost good faith. He admits the filing of a petition for the sale of the land, and that the same was sold as alleged in the bill, but denies that, when sold, Lewis purchased for him or by his procurement; and alleges that, after the sale, he purchased of Lewis in good faith, paying him one dollar additional price as a compensation for his trouble. He admits the conveyance to his son Thomas, and that the consideration was love and natural affection and fifty dollars. This 507] fifty dollars he says was actually paid to him by his son. *He denies, all and singular, the numerous frauds charged against him in the bill. Thomas Greathouse, in his answer, denies that, at the time of his purchase or before, he had any knowledge of the claims of the complainants, or of any improper conduct of his father and grantor, relative to the estate, and insists that he is a bona fide purchaser for a valuable consideration, without notice. In the court of common pleas, there was a decree against Isaac Greathouse, and the bill was dismissed as to Thomas. Both the complainants and the defendant, Isaac Greathouse, gave notice of appeal. The appeal was perfected by Isaac, he giving bond according to law. The conclusions arrived at from the evidence are stated in the opinion of the court. D. SCOTT, for complainant: The claim of Allison against the estate of Robert Glass, and the judgment procured thereupon against Greathouse, as administrator, were fraudulent. Greathouse knew of Allison's claim. How? Was it regularly authenticated and received by him, or was it rejected? If the first, Greathouse should have paid it before distribution or settlement, and, failing to do so, he made the suit brought by Allison his own. 7 Ohio, 21, pt. 1. If the last, Allison had his right of action against him, which he should have prosecuted within the legal limits, and before the settlement of the Glass et al. v. Greathouse. administrator; otherwise his action would seem to be against the heirs or distributees. 2 Ohio, 156. The failure of the administrator to give notice of the claim to the heirs of Glass is a badge of fraud. Allison recovered judgment in October, 1832, and in April following, assumed the duties of an administrator of Glass. I say assumed, for, under the statute (Chase, 1311, sec. 18), he was not authorized to petition as administrator to sell land to pay debts, after having made his final settlement with the court. In the spring of 1831, he volunteered to become a defendant *to Allison's suit, for no one had then a right of action [508 against him, except for the balance then in his hands, as found on his previous final settlement, and that not in his character of administrator of Glass. 6 Ohio, 21; 2 Ohio, 156. Though Greathouse was executing a usurped trust, he will be held to a faithful discharge of it. His trust was not fairly executed. He omitted to give notice to the heirs of Glass, of the claim, of his petition to sell, or of the fact that their land was to be sold; and this he was bound, in good faith, to do. They lived in Virginia, and should have been notified by letter or actual notice. 1 Story's Eq., sec. 218. The evidence shows that Lewis purchased the land sold by Greathouse as administrator, merely as the agent of Greathouse, and for him. A purchase by the trustee of the particular property of which he has the sale, "per interpositam personam," carries fraud on its face. 4 How. 552; Davone v. Fanning, 2 Johns. Ch. 252; 8 Ohio, 216, 552; 10 Ohio, 117; 9 Ohio, 57; 12 Ohio, 351; 5 Pick. 519; 15 Pick. 24; 5 Met. 462; 4 Binn. 7; 7 Barr, 48; 11 Conn. 343; Cox, 26; 3 Har. 74; 5 Har. & Johns. 147; 1 Hawks, 479; 2 Blackf. 377; Peck, 443; 1 Gilman, 615; 3 Maule & Selw. 574; 2 Story's Jur., sec. 12, 58. The sale was absolutely void. (1) The administrator, Greathouse, acquired no property in the land by the conveyance from Lewis. He therefore could convey none to his son, who, according to the evidence, had notice that Lewis bought for the administrator. "An abuse of a trust can confer no rights on the party abusing it, nor on those who claim in privity with him."(2) 2 Story's Eq., sec. 12, 58; 3 Maule & Selw. 574; 2 How. 401. The remedy of com (1) See 6 West. Law Journal, 565; Bohart v. Atkinson, 14 Ohio, 228; Armstrong v. Hueston, 8 Ohio, 552. (2) See 4 West. Law Journal, 298, Archer v. Hudson, and note. Also 384, Davies v. Lowery, 15 Ohio, 655. Glass et al. v. Greathouse. plainants is not impaired by lapse of time. 4 How. 561; 6 Wheat. 481; 10 Ves. 467; 1 Cox, 149; 10 Pet. 177. 509] *N. BARRERE and J. H. THOMPSON, for defendants: The first question to be determined, is this: Is the whole cause appealed up, and before the court? By the decree pronounced in the court of common pleas, the defendant, Thomas Greathouse, was dismissed, and out of court. The other defendant, Isaac Greathouse, afterward appealed from the decree against him. Now, as Thomas Greathouse was out of court, can any act of his co-defendant bring him again before the court? An appeal operates precisely as a continuance. So does a new trial. Suppose a case to be tried against two defendants, and a decree or judgment is rendered against one, and the other is dismissed or acquitted, and the one against whom the decree or judginent is rendered, applies for and obtains a new trial, does that bring the party who was dismissed or acquitted before the court on the second trial? Surely not. This is a proceeding in personam, and not in rem; and, therefore, although the land in controversy would be held subject to the same extent for any amount this court might decree against Isaac Greathouse, not exceeding the sum fixed by the decree in the court below, nevertheless, as this lien is to the prejudice of Thomas Greathouse only, and he does not complain of it, who can? There are two questions, and but two, in this case. The first, as to the proceedings of Isaac Greathouse, as administrator, previous to the sale of the land to Lewis. The second, as to the fairness and effect of the sale to Lewis. It is alleged that Greathouse, by collusion with Jonathan Allison, caused the judgment to be obtained against him as adminisThis allegation on the bill is not sustained by proof. The next question is, whether the sale was fairly and legally made. It is alleged that the sale to Lewis was not real, but was in fact a sale to the administrator through Lewis. There is no proof going to establish the fact. For principles of law applicable 510] to this part of the case, we refer to 4 Ohio, 446, and 11 Ohio, 193, particularly the latter. All the presumptions are in favor of the legality of the proceedings, and an innocent purchaser can not be injured or implicated, except where actual notice is brought home to him. The proof shows that Lewis was really and bona fide the purchaser; but if the court take the other view of the sub Glass et al. v. Greathouse. ject, still we insist that can not affect the land in the hands of Thomas Greathouse. And what must be its effect on his father? There was no statute forbidding him to buy at the sale, and the judicial decisions relied upon were not then made. Why, then, was the purchase made through Lewis? For fraud? No. But to enable the party to get a conveyance; he could not convey to himself. What, then, are his liabilities, if he is to be considered in the light of trustee? We answer, Nothing, if the sale was fairly made, for a fair price, and the proceeds of the sale fairly applied; but if it was not, then he would be liable for the difference between the price obtained and a fair one. If, however, the court are even satisfied that Lewis actually bought for Greathouse, and that Thomas Greathouse knew that fact when he bought of his father, we submit that, under the authority of Wade v. Pettibone, 11 Ohio, 57, the complainants can not recover. The complainants lived in Brooke county, Va., and knew of the sale as early as January, 1835, if not earlier. This suit was not brought until 1847. Glass died in 1828. Some of the complainants were nearly forty years of age; and all of them were of age previous to the commencement of this suit-the youngest being twenty-two years of age. If the purchase in the first place was wrong, and Greathouse held as trustee, in 1847, the complainants could not assert their claim, having had notice in 1835. In the case in 11 Ohio, 59, the delay was twenty-five months— here it is thirteen years. By the authorities, the administrator shall not be permitted to make any profit of the estate committed to his charge by *purchase. It is not a settled, fixed, invariable rule in equity, [511 that all sales and purchases will be held void; "but that a court of equity will look into transactions between persons in these relative situations with extreme jealousy, and if it find the slightest trace of undue influence used, or unfair advantage taken, will interfere and give redress." See Hill on Trustees, 160-170, 535, 538. In a word, the purchase is voidable, and not void. See 5 Pick. 519; Hill on Trustees, 535, 538; 10 Ohio, 117. And a court of equity will set aside the sale, or order another sale of the premises, as the propriety of each transaction demands, in view of the facts; and the court have established three principles by which they VOL. XX-28 433 |