The opinion of the Court was delivered by
Kennedy, J.
The facts of the case are presented in a state-
ment made by the parties, and by them to be considered in the nature of a special verdict. From this statement it appears that Abraham R. Woolley, in 1823, was discharged under the Insolvent Laws of this State, and Alba Fisk, the intestate of the plaintiffs in error, who were the defendants below, in conjunction with John Sarber, the defendant in error and plaintiff below, were appointed assignees, and gave bond, with sureties, in the sum of $1500, conditioned for the faithful discharge of their duty as such assignees. Among the property returned by A. R. Woolley, in his schedule, was a farm No. 6, situated in the vicinity of Pittsburgh, valued [19] therein by him at $8700. This farm was subject to a mortgage, previously given by Woolley to the Bank of the United States, as a security for the payment of $4750, and not $3500, as stated in the opinion of his honour, the President Judge of the District Court. Though Woolley, in his schedule, values the farm at $8700, it is very clear from the case as stated, that it was not considered worth even the amount of the mortgage-debt, and that that sum of money could at no time have been obtained for it, until after it was purchased by Alba Fisk at the sheriff’s sale under the mortgage, made upon judicial process sued out at the suit of the bank upon a judgment obtained, on the mortgage. His honour, also, seems to have fallen into an error, in assuming that Fisk, while in possession of the farm, before the sheriff’s sale, at the instigation of Woolley, under some private arrangement with him as to the division of the profits, made an agreement with the bank whereby the bank was to sell, the farm under the mortgage, he (Fisk) to become the purchaser of it, and to give his personal engagement, beside a mortgage on the farm, as a security for the payment of the bank-debt; and afterwards, as he (Fisk) should make sales of any parts of the farm, the bank was to release their mortgage pro tanto, on receiving the proceeds of such sales, until their whole claim was paid. This arrangement, says the Judge, was carried into execution in the spring of 1830, and the property or farm was set up at sheriff’s sale, knocked down to Fisk, and a deed made to him by the sheriff. Now although a proposition was made in June 1828, by Mr Fisk, in his own name, at the instance of Major Woolley, who was to furnish the money for the purpose of carrying it into effect, to pay the bank $4750, the amount of the principal of the mortgage-debt coming to it, as follows — $1000 thereof to be paid on the 1st of September then next ensuing, $1750 thereof in the course of theyear 1829, tobe divided into four equal payments, and the remaining $2000 in three years, with interest — yet this proposition, notwithstanding it is stated to have been acceded to by the bank, and an extract of the minutes of the bank referred to for the purpose of showing that it was so; yet the minutes show nothing of the kind. From them it does not appear that the proposition was ever decided or acted upon by the bank; and most probably so, because Major Woolley seems to have failed entirely in raising the money, as he proposed, without which it could not be carried into effect. The matter then lay over until December 1829, a space of eighteen months, without anything being done towards paying or satisfying the debt of the bank, when the bank, of their own mere motion, as it appears, resolved to proceed and have a sale made by the sheriff, of the farm, if practicable, under their mortgage, and directed that their attorney should be instructed to bid it up to $4500; but in the event of no person bidding above that sum, that he should cause the sale to be adjourned ; and that if Alba Fisk should become the purchaser at [20] the sale for a sum exceeding §4500, the bank would extend the time of payment for five years from the 1st of April then next ensuing, upon his giving his promissory note for the amount of the purchase money, including the costs of sale, bearing date the said 1st of April, payable at ninety days after date, interest to be paid in advance, and to be renewed (interest being paid) every ninety days for five years, if required, for such balance as should from time to time remain due; and the whole to be secured by a mortgage to be given on the premises or farm cotemporaneously with the sheriff’s deed.
The bank also further resolved, that on the purchaser’s complying with these terms, they would assign to him their mortgage and judgment, and release the said A. R. Woolley from the balance of said mortgage and judgment. And that Alba Fisk, if he became the purchaser, might proceed to sell, from time to time, parcels of said farm or land, and pay the avails thereof, as they should be realized, to the bank, and the bank, upon such payments being made, would release the parcel or parcels so sold, from the operation of their mortgage. The attorney of the bank was accordingly instructed to have a sale made of the mortgage-premises by the sheriff; which was effected under a writ of levari facias, to him directed for that purpose, on the 35th of March 1830, to Alba Fisk, for the sum of §4510, he being the highest bidder, and that the highest sum or price bidden for the same. On the 26th of April following the sheriff consummated his sale by executing and acknowledging a deed of conveyance to Alba Fisk for the farm, who gave his note and mortgage to the bank for the amount of the purchase money, securing the payment thereof in the manner that the bank had proposed anterior to the sale. Fisk, therefore, does not appear to have entered into any arrangement with the bank anterior to the sale, by which he was to become the purchaser or even a bidder at it. For aught that appears, he was at liberty to bid or not, as he pleased; but if he did become the purchaser, he had the assurance of the bank that indulgence would be given him, if he required it, to enable him the more conveniently to pay the purchase money which would be coming to the bank. The bank, evidently not considering the farm worth the amount of the debt coming to them, did this for the purpose of getting as much of it as possible, by giving up §250 of the principal, beside a considerable amount of interest which had become due. Neither does any arrangement appear to have been made between Fisk and Woolley, whereby the latter was to participate in the purchase, or derive any benefit from it. The whole risk and responsibility of making the purchase and paying the money for it would appear to have been taken by Fisk upon himself. Woolley does not appear to have ever paid a dollar, or to have bound himself to Fisk to do so on account of the purchase, in any event that might happen. The sale, also, by the sheriff to'Fisk appears to have [21] been perfectly fair; so that the great question raised in the case, and the only one that need be decided, under, the view taken of it by this court, is, whether Fisk, being one of the assignees of Woolley under the Insolvent Laws of this State, had a right to purchase the farm at the sheriff’s sale for his own use, and hold it, as the absolute owner thereof. Before entering on the discussion of this question, it may be proper, however, to observe, from the case as stated, that the sheriff’s sale of the farm was not occasioned, or did not arise from any neglect on the part of Fisk to perform his duty as a trustee under the assignment for the creditors, of Woolley. It was not his fault that the mortgage-debt owing to the bank was not paid, which made it necessary for the bank to proceed upon their mortgage, so as to have the farm sold by the sheriff, for he never had trust-funds in his hands, of sufficient amount, or anything near it, to have satisfied it; and even if he had, it would have been perilous and improper in him to have appropriated them to that end, without paying the other debts of Major Woolley, because the mortgaged premises were not considered equal in value to the amount of the debt mentioned in the mortgage; and the sheriff’s sale, with all the aid and inducement that the bank could give, with a view to encourage bidders and to obtain the highest possible price for them, prove fully the inadequacy of their value for that purpose.
Now that a trustee or person acting in a fiduciary character, for the benefit of others, cannot become a purchaser at his own sale, or acquire an interest therein, without the consent of those for whose benefit he has undertaken to act, is a principle too well established to admit of the least doubt. His own interest, in such case, being generally opposed to that of those for whom he is a trustee, would, were he permitted to consult it and act accordingly, almost necessarily, owing to the weakness and infirmity of human nature, interfere with a faithful discharge of his duty to those for whom he had undertaken to act. The maxim, in this respect, is, emptor emit quam mínimo potest, venditor vendit quam máximo potest. The chancery doctrine, in England, establishing this principle, has received the approbation and sanction of this court, and been acted upon frequently; 3 Binn. 54; 4 Binn. 43; Leisenring v. Black, (5 Watts 304); M’Ginn v. Skaeffer, (7 Watts 415); Campbell v. Pennsylvania Life Ins. Co., (2 Whart. 53); Rankin v. Porter, (7 Watts 390); also in the Circuit Court of the United States in this State; Prevost v. Gratz, (Peters’s C. C. Rep. 373). A purchase, however, by a trustee, is not absolutely void, but voidable merely at the election of the cestui que trust, or those beneficially interested in the estate; so that the trustee takes the property subject to the equity of the cestui que trust to call upon him within a reasonable time, to account for the profits, or have a re-sale. Prevost v. Gratz, (Peters’s C. C. Rep. 373); Leisenring v. Black, (5 Watts 304); Whichcote v. Lawrence, (3 Vez. 740); [22] Campbell v. Walker, (5 Vez. 678, 13 Vez. 601); 4 Kent’s Com. 438. The principle that a trustee, properly so called, cannot purchase 'or acquire an interest in the property for himself at a sale made by him, in execution of the trust, extends to judicial officers and all others, who, in any respects, have a concern in the disposition and sale of the property belonging to other persons; and it is immaterial whether the sale is public or private, judicial or otherwise, or for a bona fide price. Campbell v. Penns. Life Ins. Co., (2 Whart. 53.) I would also refer here to Davoue v. Fanning, (2 Johns. Ch. Rep. 252), where Chancellor Kent, with his usual industry and ability, has stafed the most, if not all the English cases on this subject, down to and during part of the time of Lord Etjdon, showing very .clearly and distinctly that the doctrine, as laid down above, is the same which seems to be fully established there at the present day. But it is also equally well settled in England, as also by our own decisions, that trustees and others acting under authority conferred upon them for the benefit of others, are only restrained or incapacitated from buying absolutely for themselves, as long as the trust or the authority in regard to the property sold continues to exist, and until notice is given of its having terminated, especially where the trustee devests himself of the trust or authority by his own act, to those beneficially interested in the property. Campbell v. Walker, (5 Vez 678, 13 Vez. 601); Ex parte Bennett, (10 Vez. 393-4); Davoue v. Fanning, (2 Johns. Chan. Rep. 261); Bartholomew v. Leech, (7 Watts 472). There are cases, in which the party acting in a fiduciary character may, by his own act, devest or discharge himself of the power or trust under which he has acted, at pleasure; but then he will not be permitted to act for his own benefit, in opposition to the interests of those for whom he had previously undertaken to act in the matter, without making known to them the fact of his having relinquished his trust or authority to act for them. Bartholomew v. Leech, (7 Watts 472). But where he cannot by an act of his own will discharge himself of the trust, so as to enable him to become a purchaser of the trust property, a Court of Chancery, under particular circumstances, will devest him of his character of trustee, and thus enable him, by appointing another to make the sale, to buy and become a purchaser at it for his own use; Campbell v. Walker, (5 Vez. 681); or the trust property may be taken out of his hands, and all his authority over it put an end to by the interposition and act of the law, as was really done in this case. Prevost v. Gratz, (Peters’s C. C. Rep. 378). There the late Mr Justice Washington says; “I know of no principle of equity which will invalidate the title of a trustee to land w'hich the law has taken out of his hands, and which he purchased from one appointed by the same authority to sell it. This,” as he further says, “ is precisely like the case of an executor who purchases at a sheriff’s sale .the personal property of his testator, seized and sold [23] under execution. The reasons which forbid a trustee from purchasing the trust property where he himself is the seller, do not apply to such a case.” The case there was, that Gratz, the trustee, had purchased a tract of land included in the deed of trust to him, at a subsequent sheriff’s sale made under the judgment and execution of one Spears against the grantor in the deed of trust, upon which he had made a profit by a re-sale, and the claim of the plaintiff was for the profit thus made; but the court held him not entitled to it.
If this decision of Justice Washington be correct, it settles the present case in favour of the plaintiffs in error, and against the defendant in error. That it is correct, and sustainable upon the ground of reason, as well as the authority of analogous cases, can, in my humble opinion, be shown pretty clearly.. Where the debt for which the property in such cases is taken in execution, is just, and the property liable to the payment of it, and the trustee without funds in his hands, or power to pay it, so as to relieve the property, what can he do ? He is certainly not required to advance moneys out of his own pocket for the purpose of redeeming it; and it being taken out of his possession, as it were, and certainly out of his power, by the authority of the law, which is paramount to any that he has as trustee, and placed in the hands of the officer of the law, to whom full power is given to sell and dispose of the same, it is perfectly manifest that he thereby becomes devested of his trusteeship in regard to it; that all his power and control over it cease; so that he has no duty whatever to perform in respect to it in the slightest degree incompatible with his buying at the lowest price for which it may be obtained; and as to the sale to be made by the sheriff, it is impossible to conceive how the trustee can exercise any control or influence over it to the prejudice of those whose interest it is to have the property sold for the highest possible price, that any other individual disposed to buy may not exert. I have said already that it is not even his duty to attend the sheriff’s sale in such case, or to give any attention to it whatever, because if it be, he would be entitled to claim compensation for his doing so ; but where there is no other trust property than that sold by the sheriff, which does not sell for a price sufficient to satisfy the execution and lien creditor, it will scarcely be pretended that the trustee would be entitled to receive compensation for his trouble in attending the sheriff’s sale, out of the moneys arising from it in the hands of the sheriff, to the prejudice of the lien creditor. He is not known or recognised as having any agency in effecting the sheriff’s sale, and therefore cannot claim any compensation on account of it; but the sheriff, who is considered the sole and only agent for making the sale, is entitled to be paid his fees or compensation for his trouble, out of the money arising from the sale, before the execution-creditor can receive any portion of it. But it is objected that the trustee, in [24] such case, may collude with the execution-creditor, and perhaps the sheriff too, so as to buy the property at an under-value, or reduced price; and hence public policy requires that he should not' be' permitted to become an absolute purchaser of the property for his own benefit. This, to be sure, is a most sweeping objection, and would go to exclude every other person from buying for his own use; for the trustee has no means of influencing the execution-creditor or the sheriff to do anything improper in regard to the sale, that any other person may not be possessed of; and if he does exert an influence of the kind successfully, there is no reason why it cannot be as easily discovered as if exerted by any other; so that there is not, as it appears to me, the least show of reason for this objection.
Another objection is, that from his connection with the property as trustee, he may have acquired a knowledge of secret and valuable properties belonging to it, calculated to enhance the value of it in the estimation of those who may be disposed to buy; and therefore public policy demands that he should not be induced to suppress his knowledge in this respect, if he has any, by becoming a purchaser at the sheriff’s sale absolutely for his own benefit. It may be that there is some plausibility in this objection; but then it must be observed that it is founded on the assumption that it is the duty of the trustee to attend the sheriff’s sale, and make such properties, if they exist in his knowledge, known to bidders, and those generally attending the sale, though he cannot claim and receive any compensation for doing so. It is obvious such a requisition on the trustee would therefore be unreasonable and unjust, and can or ought not to be exacted. But Courts of Chancery have never regarded this objection as being, at most, entitled to the same weight that is attempted to be given to it here. For if it were to be regarded as valid, it would even prevent a trustee from becoming a purchaser of property of which he had been the trustee under an'order of the court granting him leave to.buy; or rather, it would prevent Courts of Chancery, in all cases, from ever granting such leave. But it is the constant practice of a Court of Chancery to grant such leave, where the trustee evinces a disposition to give a higher price for the property than any other seems willing to give; and yet this disposition to give a higher price than any other, may, for aught that appears to the court, proceed from his knowledge of valuable properties belonging to the estate, that is known to nobody excepting himself. Such matter is never inquired into by the court; and the non-existence of any such knowledge on the part of the trustee, does not appear to enter into the consideration of the court, in making an order authorizing him to become a purchaser, if disposed to give the highest price. Campbell v. Walker, (5 Vez. 678, 681.)
In practice, therefore, this second objection seems to have no weight or validity attached to it. It will not be pretended, I [25] presume, that a trustee, who is constituted such for the purpose of selling and disposing of an estate, is bound to suppress or keep secret, in doing so, any defects which he may discover in the title to it, or secret bad properties belonging to the estate itself. Truth, which is the basis of all moral excellence and fair dealing between man and man, would rather seem to require that he should disclose them in the course of a sale made by himself; but certainly, when the sale and trust are taken out of his hands, he would not be required to attend a sheriff’s sale for any such purpose. A trustee, appointed for the sale of an estate, is altogether unlike, in this respect, to an attorney-at-law or counsellor, who is consulted as such, in regard to the title of an estate, by the person in possession and claiming to be the owner of it. If defects in the title are discovered, upon such occasion, by the attorney or counsellor, he is bound to keep them secret, and not to disclose them; nor will he ever be permitted to secure a benefit to himself, by means of his knowledge so acquired, to the prejudice of his client. The difference between the duty, in this respect, of a trustee for sale and an attorney or counsellor, is founded on reasons too obvious to require them to be mentioned, though both may be said to stand in a fiduciary character. In some other respects, their duties are alike, and the same rule applicable to both. The case of a solicitor in bankruptcy has been mentioned as coming under the same rule with the assignees, and disqualified from purchasing any of the bankrupt’s property for his own use absolutely ; though, as it is said, he has no control 'over the sale, nor anything to do with it. It is true that the property which did belong to the bankrupt is vested in the assignees, and that the sale and transfer thereof must be made by them; but it is also equally true that it is the duty of the solicitor, in point of law, to insist that the assignees shall make the utmost value of the property; Ex parte Lacey, (6 Vez. 629); and, that this end may be attained, it is further his duty to examine the title to the property, ascertain its value, and not to suffer it to be brought to sale until all the- information that can be acquired, in this respect, is obtained for the benefit of the assignees, under the circumstances likely to make it yield its utmost value. Ex parte Bennett, (10 Vez. 385). And hence Lord Eldon observes, in this last case, that perhaps he is, upon principle, the individual, of all others, disabled to purchase. See also Ex parte James, (8 Vez. 346).
The case of Van Epps v. Van Epps, (9 Paige 238), has been cited by the counsel for the defendant in error, and much relied on to sustain their side of the question. The defendant, in that case, being a trustee in a mortgage for $6000 on a property, which three years before had been sold for $15,000, became the purchaser thereof for his own use, at a sale made of the same by a master in chancery, under a decree of foreclosure on a prior mortgage of $5000, with some interest due thereon, for $6450, a sum, perhaps, [26] not much more than sufficient to cover the debt and interest due on the prior mortgage; and it was held by the chancellor that he was not capable of purchasing the property absolutely for his own benefit. The chancellor, in delivering his opinion, says, it was the duty of the defendant, as the trustee and holder of the junior mortgage, to make the mortgaged premises, if possible, produce upon the sale sufficient not only to pay off the prior encumbrance and the costs of foreclosure, but also to satisfy the subsequent encumbrance, which he held in his fiduciary character. Now if the master in chancery had the sole and exclusive power entrusted to him of making the sale, and it was his duty, as in the case of a sheriff selling under judicial process, to obtain the utmost price that could be had for the property, it is not easy to perceive why it was necessary for the defendant to attend the sale, or how it was possible for him to aid in raising the price, except by bidding for the property; but surely it will not be pretended that he was bound to do this, unless he could do it for his own benefit. It would seem, however, that the chancellor did not consider the entire responsibility of obtaining the highest price that could be had for the property as resting with the master, as is certainly the case with the sheriff who makes a sale under judicial process, but that it was divided between the master and the defendant in some way; and therefore the purchase by the defendant for his own use came in conflict with- his duty as trustee, which rendered him incapable of holding it. Yet in England, a mortgagee is allowed to bid under an order in chancery for the sale of the mortgage estate, Ex parte Marsh, (1 Madd. Chan. Rep. 148, in note), which shows that he is not considered there as having any control over the sale which could tend to depress the price, and that the master appointed to make it has the entire direction of it, so as to obtain the highest price for it; so a creditor in England, taking out execution, may, according to the rule established in equity, as well as at law, become a purchaser of the property seized under it, whether it consist of goods or leasehold, because it is the sheriff, and not the creditor, who sells. Stratford v. Twynam, (1 Jacob 418). The chancellor, in Van Epps v. Van Epps, says, the result of the conflict between the private interest of the defendant and his duty as trustee, was, that a farm which in April 1837 was sold for $15,000, was, within three years from that time, bid in by him for the comparatively small sum of $6450. If this had been shown in any way to have been the case, for it does not necessarily, nor can it even probably be inferred, as resulting from the mere circumstance that the defendant was a trustee, upon any natural or rational principle, it would have been a plausible ground, at least, for deciding against the defendant; but as it was, I must confess, that I am not prepared to approve the decision; for it does appear to me that the property was taken out of the hands of the defendant and placed altogether beyond his control or influence, as a [27] trustee, so that he had no duty as such to perform in regard to it, and that his bidding for it was necessarily calculated to raise, and not to depress the price.
Seeing, then, that Fisk, as I think I have shown, had no duty to perform whatever, in regard to the sheriff’s sale of the property, in the case before the court, that would possibly conflict with his buying it for his own use, there seems to be no ground upon which he ought to be considered disqualified to do so. His becoming a bidder with a view to buy at the sale, increased the competition in bidding for the property, and necessarily tended to raise the price, so as to promote the interest of all concerned in its bringing the utmost cent of its value. It was for the purpose of promoting this great end, that the rule was established which prevents trustees, as also judicial or executive officers, and all others acting in a fiduciary character who are entrusted with the selling of property for the benefit of other persons, from buying thereat for their own use; but when they cease to have any power over, or concern with the sale, and it is to be made by another legally appointed for that purpose, to whom the whole management and direction of it is entrusted, the rule becomes wholly inapplicable. Hence, in this State, it has ever been held, that an executor or administrator may purchase the lands of the deceased, taken in execution and sold upon judgments obtained against such executors or administrators, for debts justly due, where they have no assets in their hands with which they can pay them; and this, too, before the passage of a late Act of Assembly, even where the executor was a devisee in trust under the will to sell the estate for the purpose of paying the debts of the testator. In Riddle v. Murphy, (7 Serg. & Rawle 230), where the administrator with the will annexed purchased the land of the testator taken in execution and sold by the sheriff on a judgment confessed by the administrator, for a debt said not to be owing at all, and where he had assets sufficient in his hands belonging to the estate to have paid it, if it had been just, the sale, though held void, was held so on the ground of fraud in the administrators; and from the report of the case, it is clear that it never entered into the minds of the counsel opposed to the sale, or of the court, that the sale could be avoided upon any other ground than that of the fraud, shown to have been practised by the administrator.
So it is the practice for judgment and execution creditors to become the purchasers of either the personal or real estates of their respective debtors, at sales made of the same at their instance, on their executions by the sheriff, the propriety and legality of which has never been, and certainly, at this day, cannot be questioned ; yet such practice is, perhaps, obnoxious to an objection somewhat plausible, to say the least of it. For every one, of any experience in this matter, knows that the plaintiff in the execution has, and may exert a control over the sale, to a limited extent, [28] that no one excepting himself can, by directing the sheriff to proceed to make the sale without delay, or to forbear until he shall give him further orders; and it is easy to perceive that the plaintiff in the execution, by the exercise of this control, may frequently purchase the property, if he wishes it, at a lower price than he could otherwise do, to the injury of the debtor and possibly of other creditors. The principle that he may purchase, was ruled also in New York, in Sheldon v. Sheldon, (13 Johns. 220), where in fact, too, he was a trustee for the creditors of the defendant, and next for the defendant himself, in the judgment and execution under which the property was sold. There, A. confessed a judgment to B., and B. covenanted to sell the property of A. under the judgment and apply a sufficiency of the proceeds to the payment of A.’s debts, and account with him for the remainder; and it was held by the Supreme Court of that State, that B. might himself become the purchaser at the sheriff’s sale under the execution sued out on the judgment; and that he was not accountable to A. beyond the sum for which the property was sold to him, though he had made a profit by a re-sale of it. Now, in principle, it appears to me, that this case cannot be distinguished from the one under consideration. And why did the Supreme Court of New York so hold? Clearly because the sale was under the exclusive and entire control of the sheriff, whose duty it was'to obtain the best price he could for it. It was likewise held by the same court, in Jackson v. Woolsey, (11 Johns. 446), that a guardian ad litem in partition, might become a purchaser, at a sale made by the commissioners appointed for that purpose, pursuant to an order of the court; because, says the Judge, in delivering the opinion of the court, “ it was a public sale to the highest bidder, authorized by statute, and under the sanction and inspection of the court; therefore, without circumstances of direct fraud to support the allegation of its being void, it is valid in law.” Now all this is literally true, and may be affirmed of every sheriff’s sale made of real estate in this State, under judicial process. Indeed it is perfectly obvious that the principle and grounds of all the decisions on this subject go to show, most incontestably, that no one is incapable of purchasing property taken in execution at a sheriff’s sale, though he may have stood in the relation of a trustee to it, unless he be the sheriff himself, his agent, or some one who has rendered himself incapable of buying for his own use by his having become the agent to buy for another. And the reason of this incapacity is obvious, in either case; for to permit the sheriff or his agent to purchase, would be making it his interest, which generally governs all men, to sell the property at as low a price as possible, instead of the highest; the law, therefore, wisely places him beyond all temptation to violate his duty, by rendering him incapable of buying either directly or indirectly. To permit one to purchase for himself, who has undertaken to buy for another, would be [29] permitting him to deceive and perpetrate a fraud, which the law abhors and will never sanction. So with regard to a person other than the sheriff or his agent, buying property at a sheriff’s sale, it is laid down by this court in Haines v. O’Conner, (10 Watts 320), that a purchaser at sheriff’s sale, who has paid the money, can only be held a trustee ex maleficio, on account of the existence of fraud, and when that is the case, he will be considered a trustee for the creditors and the debtor also, unless the debtor be particeps criminis. This principle is again recognised in Fox v. Heffner, (1 Watts & Serg. 376).
But in the case under consideration fraud is out of the question, for the sale appears to have been public, made upon due notice previously given by the sheriff, of the time and place appointed for that purpose, where Fisk was the highest bidder, and became the purchaser upon the strength of his own credit and responsibility, and accordingly satisfied the bank for the purchase money, to whom it was all coming, by giving them his note and a mortgage for the amount on the property sold to him. This, it is true, was done in pursuance of a proposal made by the bank anterior to the sale to Fisk, in case he should become the purchaser of the property at a sum exceeding $4500, but without any solicitation that appears on the part of Fisk to do so. But had there been a previous agreement between the bank and Fisk, to arrange the payment of the purchase money in the manner it was done after the sale, it would not have altered the case, for the bank had an unquestionable right to have bought itself at the sheriff’s sale, by bidding the highest price, without paying any money other than the costs, when the pric'e bidden fell short of the amount of their debt; and certainly any right that it had, in this respect, it could give on such terms as it pleased to Fisk. Indeed, the real motive of the bank for doing as it did with Mr. Fisk, is obvious; for from the whole of the case, it appears pretty clearly, that it despaired of getting a bid sufficient to cover the amount of their debt or claim from any person for the property, or even getting, at most, more than a dollar or so above $4500, $250 less than the amount of the principal of their debt, without including the interest due on it, excepting from Mr Fisk, and that, under this impression, the bank, in order to obtain from him, if possible, $4500 of their debt, proposed to give him time for the payment of the purchase money, so that if he purchased he might, if possible, make it out of the property by re-selling it. This was not only fair, but was well calculated to promote the interests of both Woolley and his creditors, by obtaining the highest price for the property that could be had for it under existing circumstances. The judgment of the court below is, therefore, reversed, and a judgment rendered by this court, on the case stated, for the plaintiffs in error against the defendant in error.