Opinion
(June Term, 1830.)
1. A fraudulent trustee who, pending a litigation between him and his cestui que trust, purchases the trust estate at a sheriff's sale, acquires thereby no title, and the sheriff's deed to him can stand only as a security for the amount of his bid.
2. Where the cestui que trust incurs costs at law in defending a title purely equitable, against his trustee, and does not at once come into the proper forum for redress, he cannot in equity recover his own costs at law; but he is entitled to a repayment of the amount of costs paid to the trustee.
From WAYNE. The allegations of the bill were that in 1816 the plaintiff Elizabeth and the defendant Mary, being sisters and unmarried, purchased jointly a lot of ground in the town of Waynesboro, and contributed equally to the payment of the purchase money; that on account of the nonage of the plaintiff Elizabeth, the deed for the lot was made to the defendant Mary, who was of full age; that at the time of the purchase the lot was unimproved, and the sisters being desirous of procuring a home for themselves, as well as for their parents, who were old and infirm, agreed with their father, John Sasser, that (440) if he would assist in building a dwelling-house, and otherwise improving the lot, he and his wife might live in it during their lives; that accordingly the sisters procured at their joint expense the necessary materials, and a house and outhouses were erected by them, with the assistance of their father; that their father occupied the premises until his death; after which their mother and themselves lived together in great harmony, until the marriage of the defendant Mary with the defendant Cobb; that as soon as the plaintiff Elizabeth heard of the treaty for that marriage, fearing some difficulty with the intended husband, she applied to her sister to execute a deed to her for her undivided moiety; that her sister then acknowledged the right of the plaintiff Elizabeth in the fullest manner, and stated to her that the husband of the defendant could not deprive her of possession of the lot, and that with this assurance the plaintiff being perfectly satisfied, no deed was executed by the defendant Mary; that soon after the intermarriage between the defendants, the defendant Cobb, pretending to be ignorant of the agreement between his wife and the plaintiff Elizabeth, and between them and their parents, commenced an action of ejectment; and after the plaintiffs had made every defense in their power, succeeded in obtaining a verdict and judgment, and was proceeding to execute a writ of possession. The death of the mother and the intermarriage of the plaintiffs, pending the ejectment, were then averred. An injunction and a decree for the repayment of the costs at law were prayed.
Badger and Mordecai for plaintiffs.
W. H. Haywood for defendants.
The defendants denied every allegation in the bill, and as a distinct defense the defendant Cobb averred that since the controversy respecting the lot had arisen, he had, at a sheriff's sale, purchased whatever title the plaintiff Keaton had thereto, for $8.50, under a judgment and execution against him.
(441) Upon the coming in of the answers, the injunction which had been granted on the filing of the bill was dissolved, and the defendant Cobb put in possession.
Many depositions were read at the hearing, by which every allegation of the plaintiffs was fully supported.
The agreement charged in the bill for the joint purchase of the lot in dispute by the two sisters, and the payment of the purchase money and of the cost of putting the buildings on it by them equally, though denied in the answer, are facts proved beyond a doubt by the depositions. A conveyance to the plaintiffs of one-half must therefore be decreed.
It is, however, stated in the answer that Cobb has purchased at sheriff's sale the estate of Keaton, the husband; and it is insisted that precludes the plaintiff from any relief. At most, that purchase would extend only to the life estate of the husband, and would not affect the fee of the wife. But even that effect cannot be allowed to it. Here is a trustee who denies the right of his cestui que trust, and brings an ejectment to evict him, and during the litigation and doubt cast on the title by the trustee himself purchases under execution at a price enormously inadequate. To allow him to hold under such a title would be to encourage iniquity. The sheriff's deed can only stand as a security for what the defendant advanced upon the execution.
It does not appear whether the costs of the suit at law have been paid. It is presumed they have, as the injunction at first granted was dissolved upon the coming in of the answer. The plaintiffs now ask for an account of those costs, and to have refunded what they have paid to the plaintiffs at law, and to recover their own costs at law. Certainly they (442) must get back the costs of the ejectment paid to the plaintiffs in it. Nothing can be plainer than that Cobb and wife ought not to have used their legal title in that way, and they must be content to do it at their own expense; for the plaintiffs never denied their title to a moiety. In this particular case the gross oppression attempted by the defendants prompts us to go as far as we can to make them pay all the costs, whereever any can be found. But we cannot yield to our feelings against principle. The title of the plaintiffs was not legal, though a clear one in this Court. If a party in that situation chooses to contend at law, without resorting at once to the forum in which alone he can properly be redressed, he must not expect to recover his costs unless he succeeds at law. He chooses his game, and must put up with his luck. If it was wrong in the defendant to bring ejectment, he must bear the burden of the costs incurred by him. And it being equally wrong in the plaintiff to rely upon a bad title, in a court which could not investigate and sustain his real rights, he must likewise be out of pocket the money he has spent in that fruitless defense.
It is much to be regretted that ignorant and poor people should be advised to such long, expensive, and fruitless litigation; for I dare say they knew no better. But we cannot help them without holding out an encouragement to others to keep at law for the sake of it, instead of putting their cases at once upon the merits.
As to the rents and profits, it is to be remarked that by the contract, charged in the bill and proved by the witnesses, between John Sasser, the father, and his two daughters, the father and mother were to enjoy and occupy the premises during their lives as a home. This was in consideration of his erecting the houses; which he did. It is not a question now how this might be treated by the father's creditors. But as between the parties, there can be no rent during the occupation (443) by either of the parents. From that period, however, each sister is liable for rent received by her, or for a reasonable rent during their own exclusive occupation respectively; as to which an account must also be taken.
PER CURIAM. Declare that the agreement between the plaintiff Elizabeth and the defendant Mary, for the joint purchase of the lot in dispute, and for the erection of houses on it at their joint expense, as charged in the bill, is fully proved. Declare further, that said Elizabeth paid one-half of the purchase money for said lot, and of the expenses of erecting buildings on it, and that she is entitled to one undivided half of the said lot. And decree that the defendants convey to the plaintiff Elizabeth one undivided moiety of the said lot, with the appurtenances, in fee simple. And let it be referred to the clerk to take an account of such moneys as may have been paid by the plaintiffs to the defendants, as the costs of the suit at law, and let him state any balance due thereon; and order that the defendants desist from proceeding on their execution for such balance, if any there be; and order the plaintiffs to be entitled to recover back any such costs as the defendants may have received, as aforesaid. And let it be referred to the clerk to take an account of the rents received by either of the parties for the premises; and also of the reasonable annual value of the said lot while in the occupation of either of the parties since the death of Elizabeth Sasser, the elder.
Cited: Newson v. Buffalow, 17 N.C. 67; Murphy v. Grice, 22 N.C. 201; Allen v. Gilreath, 41 N.C. 258.
(444)