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This brings us to the examination of the merits of the case.

The objections taken by the complainant to the sale to Sloan may be thus stated and grouped together:

That the entire property was sold wholly for cash when only a part of the debt was due; that Bynum and Grier bought in the property for themselves; that it was a case of trustees buying for themselves.

And that the sale was made in gross disregard of the interests of the complainant in the following particulars:

Only enough of the property should have been sold to pay the instalment then due.

If the whole were sold it should have been for .cash, only to the extent of the amount due, and with credits maturing respectively, so as to meet the instalments of the debt, underdue, at their maturity.

The place of sale was improper.

The business was conducted by the defendant Bynum. He appears well in the record. No imputation of bad faith has been cast upon him, and no ground for any is disclosed. He conducted himself with integrity and frankness, and mingled kindness with the administration of his trust, as far as his duty to his principals would admit. The first instalment matured on the 1st of January, 1860. He waited until February, trying to get payment without a sale. Meeting with no success, and seeing no prospect of such a result, he advertised the property to be sold in March. Olcott and Stephenson, by their letter of the 25th of February, asked delay until the 1st of May, hoping to be able in the meantime to raise the funds necessary to discharge the amount due. Bynum's absence on the 1st of May being necessary, he gave them until the 28th of April. With this they were content, and asked no further indulgence. Failing to realize their expectations, the property was exposed to sale upon the premises on the appointed day. Bynum procured sereral capitalists to attend, but none of them would bid mere than $35,000, deeming that to be as much as the property was worth. A meeting of the stockholders of the High Shoals Company had been held, and decided not to allow the property to be sold for less than the amount of the debt due on the bond of Hovey, and appointed and instructed Sloan to bid accordingly. He did so bid, and the sale was made to him, as before stated. A deed was not executed until the 12th of June, 1868. It was operative by relation from the time of the sale. But the deed is an immaterial fact. If the sale were valid it is conclusive without the deed. If it were in valid the deed cannot help it. It cannot be doubted that Olcott and Stephenson, when their letter of the 25th of February, 1860, was written, knew the property was to be sold as they bad bought it, en masse, and, making no objection, they are concluded upon that point. Lamb v. Goodwin, 10 Ired., 320. The complainant visited North Carolina in the spring of 1861. While there he made no objection to the sale, either to Sloan or Bynum. On the contrary, in conversation with both, he expressly acquiesced and admitted its fairness and validity. He proposed to Sloan to join him in a new purchase of the property. He applied to Bynum for license for a year to himself and Muir, to enable them to search for mines. Bynum gave him one running from April to November, but subject to be revoked at any time upon the sale of the premises. It does not appear that the complainant set up any claim touching the property after the sale until about the time of the filing of this bill, on the 22d of April, 1868.

These are significant and important facts in the case. Veazie v. Williams, 3 Story, 621.

$ 453. If a mortgage or a bond provides that upon the maturity of an instalment without payment the whole debt shall become due, the provision is valid.

The place of sale, like the time of advertising, is not prescribed in the mortgage. Both are left to the discretion of the mortgagees. There is no complaint as to the latter. We are satisfied there was no abuse as to the former. The testimony leaves no doubt in our minds that the property would not have brought more if offered elsewhere. Express authority is given to sell all the property upon the failure to pay either of the instalments at maturity. If enough of it to satisfy the amount due could be segregated and sold without injury to the residue, it would have been the duty of the mortgagees so to sell. The evidence convinces us that the sale of a parcel could not have been made without such injury. It was bought by Groot from the High Shoals Manufacturing Company entire. It was sold entire to Hovey under the mortgage of Groot. It was so sold to Sloan under the mortgage of Hovey. Subsequently it was so sold to Bridgers and others, and it was so sold by them to Commodore Wilkes. This shows the views upon the subject of those most conversant with the property and most interested in disposing of it to the best advantage. It has upon it water-power, timber, ores, mills and furnaces; each part is necessary to every other. Dismemberment, instead of increasing, would have lessened the aggregate value. It could not have been sold in parcels without a sacrifice.

If a mortgage provide that upon default in the payment when due of a part of the amount secured the whole shall become due and may be collected, such a stipulation is valid and may be enforced. Noonan v. Lee, 2 Black, 509.

So where a bond contains such a stipulation it may be enforced accordingly in an action at law. James v. Thomas, 5 Barn. & Ad., 40. But the bond in this case as recited in the mortgage contained no such stipulation. On the contrary the mortgage, while it authorized a sale of the entire property in the event of any default, expressly provided that if there should be a sale the amount "then due," with costs and charges, should be retained, and the overplus, if any, paid over “ unto the party of the first part, his heirs, administrators or assigns.? Such a clause has not the effect to make the entire debt due and collectible upon the first default. Holden v. Gilbert, 7 Paige, 208. But the property being incapable of division without injury, and having all been properly sold together, yielded a fund sufficient to pay the whole debt — as well the instalments underdue as the one overdue. Under these circumstances it was proper at once to pay the former as well as the latter, stop the interest, and extinguish the entire liability. The lien of the mortgage continued upon the fund as it subsisted upon the premises before they were sold. Astor v. Miller, 2 Paige, 78; Sweet v. Jacocks, 6 id., 355. If a court of chancery had administered the fund it would have so applied it. Such is the settled rule in equity. Salmon v. Clagett, 3 Bland, Ch., 179; Peyton v. Ayres, 2 Md. Ch., 67; King v. Longworth, 7 Ohio (pt. 2), 232; Campbell v. Macomb, 4 Johns. Ch., 534. Here the mortgagees, having applied the fund as a court of equity would have applied it in conformity to this principle, there is no ground for complaint on the part of Olcott. Where there is a power and discretion, such as existed in this case touching the sale, a court of equity will interpose only on


the ground of bad faith. Bunner v. Storm, 1 Sandf. Ch., 360; Champlin v. Champlin, 3 Edw. Ch., 577.

The bid of Sloan was a liberal one. The property could, doubtless, have been bought in for much less. That bid and the cancellation of the entire debt were in consistency with the fair dealing which characterized the conduct of the mortgagees in all their transactions with the other parties. There is no foundation for the imputation that Bynum and Grier were themselves the purchasers. They had no authority to give credit for any part of the purchase money. It was their duty to sell wholly for cash. They were authorized to sell without the intervention of a court of equity. Demarest v. Wynkoop, 3 Johns. Ch., 134. The property when sold under the mortgage of Hovey was hastening to decay. When he bought it rented for $5,000 per year. When Sloan bought its condition was such that it could be rented for only $500.

When this bill was filed nearly eight years had elapsed since the sale was made to Sloan. Making allowance for the difficulty of intercourse between the north and the south during the war, there was acquiescence, express and implied, for three years after the war ceased. This, if not conclusive, weighs heavily against the complainant. We see no reason to disturb the decree. This conclusion has rendered it unnecessary to consider so much of the record as relates to R. R. Bridgers and his associates, and their vendee, Commodore Wilkes. We have given no thought to that part of the case.

Decree affirmed. JUSTICES MILLER, FIELD and STRONG were absent.

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$ 454. How created.- If a trustee purchase lands with the trust funds, and take the conveyance in his own name, in equity the land is held as a resulting trust. Piatt v. Oliver, 2 McL., 267.

$ 455. A court of equity converts bim who meddles with the property of a minor into a trustee for such infant, and a trustee cannot buy an outstanding legal title to the prejudice of his cestui que trust. Lenox v. Notrebe, Hemp., 225.

$ 456. Where the money or assets of another are used by a person in purchasing property in his own name a resulting trust arises in favor of him whose means were used in making the purchase. Friedlander v. Johnson, 2 Woods, 675.

$ 457. To raise a resulting trust the alleged trustee must have used the money or credit of the cestui que trust. Tufts v. Tufts, 3 Woodb. & M., 456.

$ 458. Where property has been assigned in trust to pay a judgment against the assignors a trust is created by implication of law which a court of equity will execute, but where the judgment creditors are not a party to the transfer their rights do not attach till they take some steps to afirm the trust, and a disposition of property by the assignees with the consent of the assignors before such affirmance is valid. United States v. Hoyt, * 1 Blatch., 332.

$ 459. In equity, where there is a joint tenancy in a mortgage, the surviving mortgagee will be held a trustee for the representatives of the deceased co-mortgagee. Randall v. Phillips, 3 Mason, 378.

$ 460. In a contest between two litigants respecting a sum awarded by commissioners it is not necessary to make all the other claimants under the convention parties to the suit. The party who receives the sum awarded for the whole claim is a trustee for such as may be entitled to participate therein. Dutilh v. Coursault, 5 Cr. C. C., 319.

$ 461. Whenever property is acquired by fraud, or under such circumstances as to render it inequitable for the holder of the legal title to retain it, a court of equity will convert him into a trustee of the party actually entitled to its beneficial enjoyment. Hardy v. Harbin, 4 Saw., 536; 4 id., 603.

$ 462. A creditor who holds and has been paid a debt by an executor after the same was barred by the statute of limitations in favor of dead men's estates, becomes a trustee for the parties to whom the money so wrongfully paid rightfully belongs. Pullain r. Pullam, 10 Fed. R., 53.

$ 463, The law never implies and the court dever presumes a trust, except in cases of abso. lute necessity. United States v. Union Pacific Railroad Co., 11 Blatch., 385. $ 464. Trusts by implication are usually implied only in favor of third parties, the presumed


objects of the donor's bounty, and not in favor of the donor himself. In the latter case the presumptiou is much slighter than in the former. Ibid.

§ 465. Parties who have no interest in or right to land cannot by any act of theirs impress or fasten a trust upon it in favor of any one. Lamb v. Vaughn, 2 Saw., 161.

$ 466. There is no resulting trust to the heir when all the bequests in the will take effect. Rinehart v. Harrison, Bald., 177.

$ 467. There can be no resulting trust in favor of a third person, when the (leed is taken in the name of the principal purchaser, and the money is not paid by the asserted cestui que trust. Rhodes 1. Selin, 4 Wash., 715.

$ 468. By purchase of trust property with notice.- Persons who receive trust property from a trustee in breach of his trust become themselves trustees if they have notice of the trust. In re Jordan, 2 Fed. R., 319.

$ 469. Persons who come into possession of trust property with notice of the trust are considered as trustees, and bound with respect to that special property to the execution of the trust. Mechanics' Bank of Alexandria v. Seton, 1 Pet., 299.

$ 470. When property of any description is transferred from one to another, which is affected by a trust, and the person to whom it is transferred has notice of that fact, the trust will follow it into his hands. If the trust property is money, the liability does not attach to the possession of the pieces of coin, but to the possession of the fund. United States v. The Inhabitants of Waterborough,* Dav., 154.

$ 471. Where an agent employed to procure a vessel to be built in his own name, and eventually transfer the title to his employer, fraudulently transfers the title to a stranger, with notice, the transaction creates a trust properly cognizable in equity. Scudder v. Calais Steamboat Co.,* 10 Law Rep. (N. S.), 498.

S 472. A deed of lands to a purchaser without notice, by a person holding a deed thereto duly recorded, cuts off any claim to such lands founded on a resulting trust. Daggs v. Ewell, 3 Woods, 344.

$ 473. Parties who, knowing a breach of trust has been committed, buy the trust fund, do so at their peril. Kitchen v. Bedford, 13 Wall., 413.

$ 474. A purchaser from a fraudulent vendee, with notice of the rights of the original vendor, may, at the election of the latter, be charged as trustee, but to the extent only of the interest which such vendor had, and if the proof shows that no title was vested in such vendor, he caunot subject to his use any title the purchaser derived from another source. Rogers v. Marshall, 3 McC., 76.

$ 475. Between principal and agent.- If an agent locate land for himself which he ought to locate for his principal he is in equity a trustee for his principal. Massie v. Watts, 6 Cr., 148.

$ 476. An agent, when contracting for his principal, cannot stipulate for any private collateral benefit for himself. If he does he will be deemed to take and hold it in trust for his principal. The rule applies to all persons standing in a fiduciary relation to those for whom they are acting. Garrow v. Davis, * 10 N. Y. Leg. Obs., 225.

$ 477. Where an agent, whose duty it is to pay taxes on the land of his principal, and who has agreed to advance money for that purpose, neglects to do so, permits the land to be sold and himself becomes the purchaser at the tax sale, such purchase must be held to be in trust for the benefit of the principal on repayment of the sum advanced by the agent. Rothwell v. Dewees, 2 Black, 613.

$ 478. If a person assuming to act as agent in redeeming land sold for taxes take advantage of such act to obtain a title in his own name for the land, and by a subsequent procedure to perfect the title, he is responsible in the character he at first assumed, and will be held to answer to those in whom the title was vested. Schedda v. Sawyer, 4 McL., 181.

$ 479. Where one of several partners purchases property with the funds of the partnership and takes the title in his own name, no trust results in favor of the firm where the purchase money is charged to the partner's individual account and the property is treated by the firm as belonging to the holder of the legal title. Philips v. Crammond, * 2 Wash., 441.

$ 480. At a sale of public lands in a territory an agent who purchased for another must account as trustee to his employer, although the statutes of the territory have abolished all resulting trusts. Irvine v. Marshall, 20 How., 558.

$ 481. An attorney purchasing any property of his client connected with the litigation in which he is engaged can hold it only as trustee for his client. Stockton v. Ford, 1 How., 232.

$ 482. Between partners and persons having joint interests.- Where the management of a partnership business is left exclusively to one member of the firm, who takes complete control, neither consulting nor reporting to the other member, who resides at a long distance from the place where the business is carried on, held, that the relation of the partners in such a case becomes fiduciary, and a sale to the managing partner of the other's interest in

the concern will be set aside if the proofs show that any unfair advantage was taken by the purchasing partner of his superior knowledge. Brooks v. Martin, 2 Wall., 70.

$ 483. A written agreement by two to purchase lands on joint account creates a fiduciary relation between the parties, which neither is at liberty to defeat by a purchase on his sole account, and such a purchase will be in trust for the joint account. Flagg v. Mann, 2 Sumn., 487.

$ 484. Where one partner sells to another, who binds himself to appropriate the goods on hand to the payment of the debts of the firm, the assignee becomes a trustee to the creditors and the late partner for the faithful performance of the trust. Sedam v. Williams, 4 McL., 51.

$ 485. If parties are interested together by mutual agreement, and a purchase is made agreeably thereto, neither party can exclude the other from what was intended to be for the common benefit, and any private benefit touching the common right which is secured by either party will turn him into a trustee for the benefit of both. Flagg v. Mann, 2 Sumn., 487.

$ 486. Where land purchased by one partner in his own name is occupied by both partners for the benefit of the firm, and is paid for out of partnership funds, a resulting trust is established in the partner making the purchase in favor of the firm. Scruggs v. Russell, McCahon, 39.

$ 487. S. gave a deed of release of his interest as a tenant in common in certain premises to B. ; at the time of this conveyance W. was in possession and seizin of the premises, claiming them in his own right, by virtue of a purchase under a tax sale. W. was one of the tenants in common of the premises and was the agent of S. and the other proprietors. Held, that the

purchase of W. must be deemed a trust for the benefit of S. and his grantee, B., to the extent • of their interests; that he ought to be decreed to convey the legal title to the premises, after

being satisfied of all the just claims which he had against them for taxes, for the purchase money laid out in the tax sale, for his expenditures and improvements upon them, and also for his reasonable services as agent in the premises, deducting all sums of money received by him in the premises for “stumpage" or otherwise. Baker v. Whiting, 3 Sumn., 476.

$ 488. Between buyer and seller.-- An instrument may have the distinguishing characteristics of a contract and be open to objections which prevent its enforcement as such; still, if it possess the essential elements of a trust, the trust may be enforced. Where A. entered into a contract with B., by which the latter agreed to buy certain land and convey the same to A., and, A. having paid a portion of the contract price, B. purchased the land as agreed, but refused to convey to A., held that, even though, as urged by counsel, a decree for specific performance of the contract could not be rendered, on account of objections raised, there was nevertheless an implied trust in favor of A. which the court had the power to enforce. Fackler v. Ford, McCahon, 21.

$ 489. The view which courts of equity take of agreements to sell land is that the seller becomes a trustee for the purchaser. Lane v. Ludlow, 2 Paine, 591.

$ 490. The vendor of an estate who has received the purchase money, but retains the legal title, is a mere trustee for his vendee, and can avail himself of no act prejudicial to the trust. Waddington v. Banks, 1 Marsh., 97.

$ 491. Where land is to be conveyed for a consideration which is to be afterwards ascertained by the price at which the grantee may sell it, there arises a resulting trust to the grantor until the sale is made, and the grantee becomes a trustee, subject to all the equitablo rules which would bave bound him had the deed in express terms empowered him to sell for the use of the grantor. Prevost v. Gratz,* Pet. C. C., 364.

$ 492. In reforming a contract for the sale of lands equity treats the purchaser as a trustee for the vendor, because he holds under the vendor; and acts done to benefit the title by the vendor when in possession of the land inure to the benefit of him under whom the possession was obtained, and through whom the knowledge that a defect in the title existed was derived. The vendor and vendee shared in the relation of landlord and tenant. The vendee cannot disavow the vendor's title. Galloway v. Finley, 12 Pet., 264.

$ 493. Between husband and wife.- Where the consideration for a deed to a husband is property belonging to the wife, there is a resulting trust in favor of the wife, and a conveyance by her will be upheld in the absence of evidence of the wife's assent to taking of the title in the husband's name. Nicklin v. Wythe, * 2 Saw., 535.

$ 494. The husband of a tenant in common who buys an outstanding equity in the land takes it as trustee for his wife and her tenants. Rothwell v. Dewees, 2 Black, 613.

$ 495. A husband who, having executed a trust deed for the benefit of his wife, receives from her the repts, profits, etc., of the trust property at his suggestion, and upon his agreement to invest the several amounts so received by her from the trustees for her benefit and that of her children, becomes thereby the trustee of the wife. Walker v. Beal, 3 Cliff., 155.

$ 496. Purchase money paid by one, title taken by another.- Where the purchase money is paid by one, and the title taken by another, to raise a resulting trust in favor of the former

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