
    George W. Grant vs. William W. Lloyd et al.
    The executor, and heirs of the testator filed a bill against a purchaser at the executor’s sales, under an order of the probate court, of the testator’s real and personal estate, to set the sales aside, on the ground that the property had been sold by the executor at the suggestion of the purchaser, by whom it was bought, for the purpose of defrauding certain bank creditors of the testator ; and at the sales the purchaser prevented others from bidding, and , procured them not to bid, thus purchasing the property at less than its real value ; and telling at the sale certain other creditors who were disposed to bid on the property, that he was buying it for their benefit; but after the purchase, holding both the real and personal estate absolutely as his own, and refusing to account with the executor or heirs for any part of it,- held, on demurrer to the bill, that it presented a case for the interposition of a court of equity.
    In such case, the probate court, even if it could set the sales aside after they had been affirmed, which is questionable, could not give all the relief which the case demanded.
    Nor would it be a valid objection to such bill, that the executor was a par-ticeps criminis in the fraudulent sale ; that could not affect the rights of the other heirs ; and as some of them in this case were infants, their rights could not be prejudiced by the acts of the executor.
    It seems that an improper transfer of any of the assets of an estate, by an executor or administrator, with the knowledge and concurrence of the purchaser, imposes on him a liability in equity in favor of those interested.
    On a bill filed by the heirs of the testator, to set aside an executor’s sale of personalty, on the ground of fraud and collusion between the executor and purchaser, who, it was alleged, had procured the sale to be ordered with a view to defraud certain bank creditors and that the purchaser had bought under an agreement with the executor, to hold the property for the benefit of the heirs of whom the executor was one, and had procured the purchase to be made at less than the real value of the property, the court reviewed the pleadings and.proofs in the case, and came to the conclusion that there was * neither fraud, combination nor collusion proved, and that the sale was not fraudulent.
    It seems that an agreement between the purchaser at an executor’s sale, and the executor and other heirs of the testator, made before the sale, by which the purchaser agreed to keep the property bought by him together, and permit one of the other parties in interest in the estate, to manage it, and refund to him in three annual instalments, with interest, what he had paid for the property; and when he was fully repaid, he was to re-convey the property to the heirs, would not necessarily make the sale fraudulent, if it in other respects were fair. And if such an agreement were made after such a sale, if binding, it would only give the parties a right to redeem.
    A combination among a certain class of creditors, to purchase property at an executor’s sale, is fraudulent not only as to other creditors, but as to all concerned; therefore where, at an executor’s sale, one who went to purchase a part of the land to be sold, was told by one of the heirs that it was to be bought in by a particular person for the benefit of the indorsers of the testator, of whom his informant and the intended purchaser were part; and he was told the same by the latter, who became the purchaser, in consequence of which information he did not bid, and the land sold for less than its value ; held, that the sale was fraudulent and should be set aside.
    Unusual recitals in an executor’s deed, giving the reasons w.hy lands sold at his sale by him, sold at an unreasonably low price, are suspicious, and look as if they were intended to give apparent fairness to fraudulent transactions. The fact that an estate has been declared insolvent, does not prevent the heirs from filing a bill to set aside a sale of the realty made by an executor; the insolvency may have been brought about by this sale; they are not precluded from showing that it was improperly declared insolvent.
    Where an executor’s sale of real estate is set aside for fraud in the purchase, the purchaser will be allowed to retain a lien on the land for the amount he has paid with interest; will be chargeable with reasonable rents, and be allowed for permanent and valuable improvements, not to exceed the value of the rents ; and if the order of sale be valid, the' land must be re-sold under the order subject to the rights stated.
    On appeal from the vice-chancellor’s court at Monticello; Hon. James M. Smiley, vice-chancellor.
    William S. Lloyd and others, the heirs and distributees of William W. Lloyd, deceased, several of whom are alleged to be minors, and appear by their next friend, filed their bill against George W. Grant, and Jacob K. Hilt, alleging, that the deceased left a will, nominating his widow, Elizabeth, and son, John H. Lloyd, executors; both of whom are co-complainants.
    The deceased was indebted at his death about $20,000, and had incumbered his real estate, by taking stock in the Hinds County Real Estate Bank, and giving a mortgage to secure it.
    The widow and John administered, and not being much acquainted with business, sought the aid of the defendant Grant, a distant relative, and permitted him to manage the estate as he thought fit.
    It was always the intention of the executors to pay the honest debts of the deceased, who left ample assets for that purpose.
    Grant induced the executors to believe that the banking company was a fraud, and to enter into his arrangements to avoid the payment of the stock subscribed for by deceased; and by conversations with them, and letters, he induced them to get an order for the sale of the whole of the estate of the deceased; and to induce them to this course, Grant agreed to purchase certain of the negroes for the widow, Elizabeth. !
    Various letters of Grant, and other papers, are exhibits to the bill, and referred to in support of this allegation.
    That Grant agreed, that the sale should be to the benefit of all just debts, and the property then inure to complainants.
    To carry out this fraudulent arrangement, he executed an agreement with the executrix, made exhibit D. to the bill, and to prevent bidding at the sale, made known to all the bidders his friendly intentions, and wrote the executrix to notify all persons that no security but undoubted, and no persons but of the greatest punctuality, would be taken as purchasers.
    The executrix and executor were thus persuaded by Grant to procure orders of sale of the whole estate, in violation of the will of the deceased ; the sale was advertised, and took place.
    That Grant, to carry out his fraudulent intentions, had bidders to bid for him, and purchased at the sale certain named slaves, and at private sale certain others, and, subsequently, the real estate.
    The property sold for a nominal sum compared with its real value, and what it would have sold for at a fair open sale. To cover the fraud, Grant procured the defendant (Hill) to execute his notes for the purchase money, with Grant as surety, but had the deed for the property made to himself, and executed his notes for the land, which are exhibits to the bill, except one note for about $1100, settled in .some way with W. S. Lloyd, one of the complainants, and which, they charge, has not been paid. The land was sold on one, two, and three years; part for one dollar and sixty-two and a half cents per acre, and part for less.
    Grant gave no notes for the slaves, horses, furniture, &c., and has not paid, so far as complainants are aware of, the purchase money; but pretends to have arranged some papers of the deceased in some banks, but charges that the money was at a great depreciation, and the payment on Grant’s own responsibility.
    Grant having acquired title thus, refuses to account to complainants, but claims the whole property; the real estate alone •estimated at upwards of $25,000.
    After the sale the letters testamentary were revoked, and administration granted to W. S. Lloyd, one of complainants, who cannot procure a settlement with Grant, who refuses to pay over the purchase móney, alleging frivolous pretences of offsets, &c.
    That the lands are well improved, and the negroes worth an annual income of $1500, and Grant has enjoyed the same since the will.
    Complainants charge, that their object is to pay all legal debts against the estate, and that the executor and executrix were actuated by no improper motives; but seduced by Grant, who holds on to the whole property.
    The prayer of the bill is for an account of the hire of the negroes, and rents of the land; and that Grant deliver up the negroes or pay for them to the administrator, or to complainants as heirs ; and that the sales be annulled, and a receiver be appointed.
    Many of the letters of Grant are exhibited with the bill in support of its allegations, touching the fraud of Grant. The follow-in g are all that need be noticed:
    
      ■EXHIBIT B.
    “Mrs. Lloyd or Mr. J. H. Lloyd, it would be well, perhaps, to make known to bidders that the best, of security will be required, and no other taken than will be perfectly satisfactory to the executors; that the times and situation of the estate require that the property should be sold to the most punctual men, such as pay always up at- the time and without being sued, and to keeping off at law the payment of money that the estate would be suffering for. The four negroes, had of Speed, had better be sold as the others, and all to remain together on the plantation until other arrangements, &c. I cannot think of going into cash arrangements, in settling debts against the estate, and take property at any other price than a fair cash valuation under all circumstances, and then to allow it to remain to cultivate and keep up the place, &c. until I know Whether you return from Texas or not, and until I see what prospects there will be for good crops or a crop, and the prospects of the legatees repurchasing or reimbursing me as required. It will be well, perhaps, for me once more to give you my opinion, that you should take nothing but your clothing and money to bear expenses to Texas, until you see whether you stay there or not, and after the sale, all the sales necessary for the settling up the estate are made, for you and Mr. J. H. Lloyd, who are authorized here, by the will, to go on by water to Texas, &c. Settle up the business there by sale or division of the property there, and in that time you will see, yes, in three months, perhaps, you will be able to say whether you will stay there or return to your old place. I again repeat, that it is on your, Francis Benjamin, Thomas, and Washington’s account that I am induced, for these are dreadful times, and prospects too bad for me to run into any arrangements where money is to be paid out. I write and send in haste late this evening, inasmuch as I find the ill health of our infant will not allow me to leave it in the morning.
    “ Respectfully, your obedient, George w. Grant<
    “Mrs. Elizabeth Lloyd, Copiah County, Miss.
    “ Per Henry.”
    
      
      “ EXHIBIT 0.
    “At home, 19th March, 1840. 'Dear Madam,— The bad health of my infant, and the unwillingness of its mother that I should leave it, prevents my coming over. Mr. Benj. Williams will therefore represent me in bidding off for you the two ne-groes, beds, (carriage and horses, if you want them.) If your son, Wm. S. Lloyd, Thomas G. Lloyd, D. McRae and others, accede to what is wished and expected of me by you (to wit) that I buy all the rest of the negroes if they don’t go too high, and the horses, wagon and oxen, farming utensils, milk cows, and such of the household and kitchen articles as may be necessary for, Thomas G. Lloyd, Washington and Benjamin to make out with, while they stay here1 and go to school, and Francis here or at her brother William’s or D. McRae’s, while you and John H. Lloyd go to Texas, and settle up the business there; and if you like, stay there; and if not, come back; while Thomas stays on the place, and makes all he can in corn and cotton, and take care of the plantation, that it maybe seen what can be done, and how far the business of the estate can be settled up in that time. Thomas G. Lloyd or J. H. Lloyd can fix upon term or hire for the negroes after the titles are made to me, which I presume are good, and free from incumbrances. With Mr. J. H. Lloyd I can make the arrangement about the settlement of debts, in part or entire, against said estate, to the amount of said property, as may be just and right. I will here add, that it is not, I hope, to be expected that I will buy property at a very extravagant rate, run upon me by irresponsible persons, when my only 'object is to turn said effects'into active means towards settling the debts against said estate to prevent sacrifice, and to keep up and take as good care of the plantation, as the means will allow. You know I settle my engagements punctually. I never buy property at public sale at extravagant rates, on account of credit, and after my paper is due put off by promises as long as possible, and .then keep off at law as long as I can. I therefore say, if the property is scattered about at this unfavorable time, and bought up by irresponsible men, who may give some half score of irresponsible securities, the result will be ruinous to the estate; for the amount of the personal property, at a fair valuation for the times, is imperiously demanded by the condition of its affairs as well as your own situation. I must, therefore, get your son, William S. Lloyd, D. McRae, or Jacob K. Hill, to act for me if any thing should prevent Mr. Williams doing so. Please send over to Mr. Williams this evening, or early, very early, in the morning. Observe, however, that this is proposed on condition that you can do no better; if there are any other arrangements that can be made more to your satisfaction, please do so.
    Respectfully, your obedient,
    GEORGE W. GRANT.
    “Mrs. Elizabeth Lloyd.
    “ Where men bid off property, and do not give the security required, it should be sold over again at their risk, &c.
    “Mrs. Elizabeth Lloyd,‘Copiah.
    “ Per Henry.”
    “ EXHIBIT E.
    
      29 tk Oct. 1840.
    “Dear Sir, — After I wrote you yesterday, I can only say again that I will relinquish my bid for the land to you, if you and your brother John can agree as to the arrangement to keep the land from under your debts, so that it may not be incumbered with any thing else but the mortgage to the Clinton affair, and all of us to go to work to get it cleared upon the best terms from under that, even if it should cost us from seven or eight or ten thousand dollars. I think it would be better than to lose the lands altogether, which will do if we go on in this way, and if that will not do,' and you will'not go into writing as to the understanding between you, myself, and Mr. J. K. Hill, why I do not feel myself bound to do so, nor will I do any thing else but give my notes, which have been ready some time, take a deed and go to work to save that part if I can. What I proposed on first sale was two or three times agreed to until the sale was over, and after all sorts of bidding and my negotiating around, all proposals made and agreed to were broken off, and just such parts as suited you, and in just such ways I had to arrange matters, and to take the Planters’ Bank debts, as large as they are, upon myself, which will be as hard to pay nearly as so much gold, and relieve you; and although what I complied with at that time was only such parts as suited you, and not what I had agreed to at no time before, yet I was sent for and called upon to go security for your distressed mother for what she would drag away to Texas, although she had three different times agreed to go there as I thought best, and leave all here until she could see what was best, for her to remain in Texas or to return. Ungenerous was it to take up only with such parts of my proposals about sending off the property, and in such way as it was done, and then to try and saddle upon me not only the Planters’ Bank debts, but such as that which I only had proposed upon conditions, which were not complied with; then and now I was trying to do for the best; and if you still complain to me of the hardship which I know to be hardship, though by the unfortunate go se on your father’s paper and no fault of mine, why I must complain too, and show you that I am not in fault. If I could have had my way, I should have had the suit in chancery under way, the land sold under some of their bills, and if equity and justice can be done, have but little to pay on the mortgages. It may now be toó late, but we can yet try to do the best we can. Come üp and see me this morning if you can, and come by Mr. Short’s and see if Mr. T. Shaw is come up, as I would like to see. While I am trying and giving all the time I can, then it seems there is not satisfaction, when I know I suffer for my means, and know I do not nor never intend to sell or sacrifice a mule unless I am compelled to do so; but I really believe T. B. Shaw is aiming to get the cotton crop to himself for his own purposes instead of its coming to me.
    Respectfully your obedient,
    GEORGE W. GRANT.
    “Mr. Wm. S. Lloyd.”
    
      “EXHIBIT F.
    
      Oct. 29th, 1840.
    “ Dear Sir, —Your account against your father’s estate ought to be made out entire and probated for all that is justly due you, and come in as other claims; and you ought to see that my object has always been to turn the tangled business of the estate to the best advantage for the benefit of all those debts which ought to be paid, except the swindling Clinton aifair, and all of us to unite and aid in getting out of that, on the best possible terms, to save as much as possible of the estate; and I do confidently believe that if my advice had been taken the day your mother and son called on me, a few days after your father’s death, that we could have enjoined those swindlers, and advertised and forewarned them from or passing of the mortgages, as it would have kept the land clear of the arrangement made soon after in New Orleans by the bank agent with the partner of the New York house. Both yourself and Mr. McRae said perhaps it would be best to let it remain as it was, that the bank might perhaps advance means to relieve the estate. Your brother John went up to see, and • requested and urged him to hang on, and that the bank would advance the money required, or in part. It is now come to what it has in despite of all my efforts, and it is impossible for me to get things' done, as even we agree upon one day, is abandoned the next, while I am trying, heart and soul, to do all I can for the best for the heirs and those debts which ought to be paid; but having no control over the business, I have not been able to do half as well by it, under these circumstances, as I might have done. One wants such parts as suits him done, and another to suit him, and really I do not see that I can do any thing more than offered you. It was agreed between you, myself and Mr. Hill, that the land should be bid off, one or the other of us or both, and to be thrown into a joint stock, to save you, him and myself from loss on all claims, except the Real Estate Bank of Hinds county, which you said you asked no odds, for you never could pay a dollar to that concern; and then, after you, myself and Hill were satisfied out of the joint land stock, after going to work together to get it out and clear of the Clinton concern the best way we could ; and if we could so save the land, after reimbursed by the heir or any one of them in five years, to reconvey the land to such one or more of said heirs as paid up the money, interest and costs, we might ' out either jointly or separately for his and the other heirs mutual benefit, saving to such heir or heirs the lands in their hands as security to them until reimbursed by the other heirs. Now, if after you have bid off the land upon these terms, you object to go into the arrangement and to put it into writing, what is that agreement 1 It is lamentable, and a difficulty between you, Hill and myself, if there is none between you and your God. What I can do yet, is only to see by another trial to fix upon something again for a third time, and will see you, your brother and Mr. Hill to-day.
    Respectfully, &c. G w G “ Mr. Wm. S. Lloyd.” UE0- VV‘ RANT'
    The following is the agreement referred to as exhibit D. to the bill:
    “Be it remembered that this agreement is entered into this 26th day of March, 1840, between Geo. W. Grant of the one part, and the undersigned, securities of the late Wm. W. Lloyd, deceased, and some of whom are heirs of said Lloyd, deceased: Wituesseth, that for and in consideration of the several sums of money paid out, and which said Grant may hereafter pay out, or have it in his power to liquidate and settle to the best advantage by the aid of said securities and legatees, as well as the executors who have hereunto subscribed, that they jointly and severally agree that said Grant shall be allowed ten per cent., as is allowed by law, for his interest upon all of said debts he may so take up and arrange; and to be so advanced by paper or money as he may find it convenient to do, and with the consent and order of one or both of said executors of said Wm. W. Lloyd, deceased, as such will be so much loaned to save the property of said estate from being sacrificed as far as he can, and to prevent the securities of said Wm. W. Lloyd, deceased, from having money to pay upon his debts, and in particular to prevent, if possible, the fraudulent concern called the Hinds County Real Estate Bank from swallowing up and sacrificing the real estate of said deceased, to which it is mortgaged; that said subscribers agree to save harmless said Grant from all loss, and to allow and pay him all expenses which he may necessarily have to pay out in going to and from, and attending, as he may find necessary to do, to said business; and that whereas said executors did sell, according to law, to the highest bidder, on the 20th March, 1840, all the negroes belonging to said estate, which were bid off by A. Scool,'J. H. Benton, Wm. S.
    Lloyd and George Dees, who all surrender their bid and transfer their right to George W. Grant to comply with said sale, and to aid said executors to settle up that amount by such means as he has in his power, said Grant having J. H. Putnam’s, and other paper, that the Planters’ Bank and Sinking Fund commissioners agree to take for the amount of said Lloyd’s debt in that fund; said Grant having the negroes conveyed to him by said executors, and hold them and to hold all other property at public sale by right in his own name and possession, and to work it on the plantation of the late Wm. W. Lloyd, deceased, under the care of Thomas G. Lloyd or some other person, if necessary hereafter to get any, until the debts against said estate, and the amount taken up by Geo. W. Grant, and the several sums legally and justly due to him with interest, and all expenses are paid; when he agrees to reconvey all of said slaves then living, and the land to said heirs of Wm. W. Lloyd, deceased, that may be living at the time, to be equally divided among them, including D. McRae. It is however further understood, that said Geo. W. Grant will require the one third of all he may advance for the benefit of said estate, to be paid in the month of January, 1842, the other third in January, 1843, and the last in January, 1844; which amounts are to be shown by his vouchers, and particularly the certificates of the executor, or those to whom and with whom said debts are settled; then and in such case said Grant agrees to reconvey to said legatees all and properly. If, however, any thing should turnup that said Grant should not become the purchaser of the plantation of said deceased,- said negroes are not to be kept on it longer than this year; that it is the intention of said Grant to buy in fairly and openly and honestly the place when sold at public sale, for the purposes aboye stated, to save it from sacrifice, and that it may be turned to the best advantage to pay the debts against said estate, and afterwards reconveyed for the equal benefit of those expressed above. But that said Grant does not here agree to do this, unless he sees proper and fit, and is willing to give what it goes at said sale under all incumbrances ; and that the undersigned hereby agree that at the end of the year, if said Grant should not become the purchaser of said plantation, and has to take home and oif the place said negro slaves here bought as above, he is to be allowed to do so at a fair valuation for all such as may be living; and if it should amount to more than said estate is in arrears with said Grant, for him to pay up; on the contrary, for all that he may have paid over and above to be paid up to him. As witness our hands and seals this day and year above written.”
    One of the deeds of the land by the executor and executrix to Grant recited that the vendors had “been compelled to sell the real estate of said deceased to pay the debts against the same, which real estate was under heavy mortgage to the Hinds County Real Estate Bank; ” and in reciting the sale stated that they offered to “the highest bidder on a credit of one, two and three years, all the real estate of the deceased, which being incumbered sold but for little, as follows, viz:”
    Similar recitals are contained in the other deeds from the executor, and executrix to Grant.
    Many other papers are exhibited with the bill; but it is believed that the substance of them is to be found in the foregoing.
    Grant and Hill filed a joint demurrer to the bill, which was overruled by the court.
    Grant then answered, stating, that as he was security for the deceased for about $6000, he was interested in a faithful administration of the estate; had friendly feelings towards the family, but denies that he managed the affairs of the estate as he chose, or ever advised any arrangement to defeat any just debt, or used any means to procure a private or public sale of any property ; states that executor and executrix, and-Thomas G. Lloyd represented to defendant the embarrassments of the estate, and that they were authorized to sell by the will, at private sale, and importuned him to purchase, that they might pay the debts, and realize the rest of the estate.
    Desirous of befriending the family, defendant gave the proposition, that he should purchase, and pay, and arrange the debts, a favorable consideration ; and with a view of ascertaining the situation of the estate,, and the best mode of arranging the debts, if he should become the purchaser, he wrote the memorandum and one of the letters, exhibits to the bill, to get information from the executors and the record.
    He further took the opinion of E. G. Peyton, Esq. as to the will, and he doubting the power of the executors to sell under it, this ended all negotiation.
    The executors obtained an order of sale, and under it all the personal estate was sold on the 20th of 'March, 1840.
    Some time before the sale, it was represented to defendant, that if he did not purchase some of the slaves, and let Mrs. Lloyd and the younger children use them, they would be left destitute, and he was entreated by the family to become purchaser with this view.
    He was thus induced to agree to become the purchaser of some of the property, if not bid up top high, on the conditions, that the purchase money should be applied directly to payment of the debts; that W. S. Lloyd and others should sanction it, and become responsible for the slaves to be left in possession of T. G. Lloyd for the benefit of the .family. Exhibits B and C were written while these views, offers, and propositions were existing, prior to the sale, but none of them ever consummated, as the condition was, that W. S. Lloyd, &c. should be responsible, as already stated, but they did not sign the agreement, which was the paper marked D.
    No proposition was carried into effect, and the personal property was purchased by sundry persons at the executor’s sale.
    
      Defendant was not present at the sale, but afterwards procured the bids of most of the purchasers, by his complying with the terms of the sale, and at the earnest request of W. S. Lloyd.
    The bids for the personalty, which he thus assumed, amounted to $7150, and he files various exhibits with his answers, showing the bills of sales from the executors, the transfers of the bids; the payment of the purchase money, and the sources through and by which payment was made. These need not be noticed farther.
    Insists that he thus paid a full and fair consideration for the negroes as a bona fide purchaser, above their real market value, free from any conditions whatever.
    Denies that he used any means to prevent bidders at the sale, and insists that no such inference can be drawn from his letters.
    As a creditor and friend of the family, in a time of general bankruptcy, was desirous that most unquestionable security should be taken, and urged it on the executors, knowing them not to be strict.
    Denies that he authorized many bidders to bid for him, but only one, and on contingencies, Archibald Scott to bid, in the event of W. S. Lloyd and others signing the draft of the agreement aforesaid; and if it was not signed, to bid on the property only to make it bring a fair price. They refused to sign the agreement, and the negroes purchased by Scott for defendant were purchased unconditionally, and at their highest value.
    Denies that he had purchased in the two negroes and other property, of which Mrs. Lloyd was the purchaser. He only became her surety, and the purchase money had been paid to the estate.
    Denies that he purchased any of the negroes at private sale, but got them by relinquishment of bids to him.
    He purchased the home place at the public sale of the land on the 28th of September, 1840, at $l-62£, and W. S. Lloyd, according to the executor’s report, purchased the other tracts, and the sale was bona fide and conducted legally.
    John H. Lloyd and Thomas G. Lloyd urged defendant to procure W. S. Lloyd’s bids, as he was insolvent, (fee., and for these reasons W. S. Lloyd relinquished to him the other tracts, and the widow relinquished her dower.
    States it to be untrue, that he has not paid the purchase money of $7745, for the slaves; avers that it was paid when due, and states in detail an account showing a balance due defendant; states that he is still liable, as surety of the deceased, for upwards of $2400; that it was discovered that there was an omission to sell several small tracts of the land, and W. S. Lloyd, as administrator, procured an order for their sale; they were sold in December, 1842, and defendant became the purchaser, and has paid for them, and insists on the sale as fair and valid.
    Denies that he fraudulently procured Hill to execute his notes for the land, as charged in the bill.
    He states that the bidding at the sale was fair, open, and bond fide ; lands sold for a fair price with the incumbrances on them, &c.; insists upon his purchases in bar of the bill as if pleaded.
    After the purchase of the lands, to save himself, as surety, (fee., he, W. S. Lloyd, and J. K. Hill entered into the agreement made exhibit 16 to the answer; some conversations had taken place previously, and this agreement -is the only one touching a re-conveyance of the land, which afterwards, on the 10th of December, 1841, was cancelled.
    In concluding the purchase of the land, gave his three several notes, with W. G. Foster as surety, and the notes were to go towards paying debts of the estate.
    J. H. Lloyd, one of complainants, is indebted to him in some $1540.
    Defendant could not rent the lands at $150 per annum, and the slaves have scarcely realized more than their support, taxes, and other expenses.
    He pleads the representation by the executors of the insolvency of the estate, in bar of any relief.
    J. K. Hill answers, that the slaves were sold at six months’ credit to the highest bidder, and to different bidders, • as he believes; Grant not at the sale.
    
      Knows of no arrangements between Grant and Lloyd, but what is contained in Grant’s answer.
    Grant, in conversation before the sale of the land, said he would buy the home place, if it did not go too high, and advised Hill and W. S. Lloyd to buy some of the lands, as they were all sureties of the deceased.
    There were heavy mortgages on the lands, &c. It was sold publicly to the highest bidder.
    His answer generally sustains Grant’s.
    Grant afterwards filed a supplemental answer and cross-bill, in which he states that suits have been instituted on W. W. Lloyd’s mortgages to the Real Estate Bank, for foreclosures. He sets forth other matters not material to be stated, and prays that complainants may reimburse to him the amount of moneys paid out, and assumed for the estate, and all the costs and expenses incurred; also the amount due by the individual complainants, and in default thereof, they be compelled to execute quit-claim deeds to him.'
    A great deal of testimony was taken in the case. That which relates to the sale of the personalty will be omitted.
    Daniel McCaleb testifies, that he went to the sale of the real estate for the purpose of bidding.
    He there understood from W. S. Lloyd, that the sale was had as the best mode of saving the indorsers of the deceased, and that they intended to purchase. He understood the indorsers were Grant, Hill, and W. S. Lloyd; also understood there were mortgages on the lands.
    He thinks the land was worth from three to four dollars per acre.
    The object of the witness in going to the sale was to buy an eighth of land.
    W. S. Lloyd, his informant as to the above matters, purchased the land witness went to buy, at thirty or thirty-two cents an acre. Witness understood also from Grant, that the indorsers were to purchase the land, which caused him to decline buying.
    Grant bought the old place and most of the lands on that side of the creek; thinks McRae bid against Grant.
    
      S. P. Cockerell testified that he was present at the sale of the real estate, and thinks there was bidding against Grant for the home place; some twelve, fifteen or twenty persons were at the sale.
    ’ J. K. Hill proves that the proposition that the land should be resold, and after paying debts, balance should go to the family, was made after the sale.
    It was agreed, that after the lands were clear of the Hinds County Bank, the heirs might redeem in seven years, by paying advances and interest.
    The witness agreed to buy a part of the land bought by Grant, for which he was to pay for part three dollars, part five dollars per acre.
    Grant, Hill, (witness,) and Lloyd had a conversation before the sale of the real estate, which resulted, that Grant would risk his money for the home place, that the widow, on her return from Texas, might have a home.
    Grant suggested to W. S. .Lloyd and witness to buy the lands at the sale, but witness said he could not buy the lands incumbered as they were.
    James Speed was present at the sale of the real estate, and thinks, embarrassed and incumbered as it was, that it sold at a full price.
    There is much other testimony in the record, as to the accounts between the parties and other matters, which need not be stated.
    The chancellor decreed, that the sales "of the real and personal estate of William W. Lloyd, deceased, as set forth and described in the pleadings made by the executors of said Lloyd, to the defendants, and those under whom they claim, be, and the same are hereby set aside. But because a final decree cannot be rendered herein without the taking an account, it is further ordered, adjudged, and decreed that it be referred to Jacob S. Foute, Esq., who is appointed a commissioner for that purpose, to take an account between the parties; and in taking such account, the said commissioner is to charge the defendant Grant with the yearly hire of the negroes in dispute, and of the rent of the land, and with the price of any or either of the negroes which may have been sold by said defendant, with interest thereon, making rests at the end of each year. Apd the complainant is to be charged with the amounts that were1 legal payments to the executors of said Lloyd, by said Grant, with interest on such payments, and make report; and if, upon the coming in of said report, it be ascertained that the balance on said account is in favor of said Grant, then the complainants shall pay the same; and'a lien is hereby declared on the estate, real and personal, for the said balance, and all other matters are reserved until the coming in of said report. August 4, 1846.”
    Grant appealed.
    
      J. T. McMurran, for appellant.
    1. The demurrer to the bill ought to have been sustained-by the chancery court, and the bill dismissed.
    1st. The chancery court had no jurisdiction. The whole subject matter of the controversy belongs to the probate court of Copiah county. The matters complained of in the bill regard exclusively the administration of W. W. Lloyd’s estate, as conducted in and through the probate court of that county. The administration is still open in that court, which has ample power to afford a corrective, if one exists in any court. 5 How. Rep. 662 ; 7 lb. 80.
    2d. The complainants cannot maintain the suit. They sue as heirs and .distributees, in the face of the representation of insolvency, remaining in full force in the probate court. They state themselves out of court, by showing no interest in the subject matter. The administrator da bonis non, W. S. Lloyd, and the creditors alone, are interested. But the creditors are not parties, and the heirs and distributees show they have no title to what they claim. Admit the sales to be void, no one can have them set aside, except the administrator de bonis non, (or he with the creditors,) at least as to the personalty. 3 How. R. 252, 258; Mitf. Plead. 181.
    3d. With regard to the real estate, if the heirs could maintain a suit to set aside the sales thereof, (which we insist they could not as long as the estate is insolvent,) they could not unite in the same bill the real estate and the personal estate, and seek relief as to each in the same suit. The characters of complainants as heirs and as distributees are distinct, the subject matter in each character is different, and they cannot be joined any more than ejectment and detinue could be united in the same suit. “ The bill contains several matters of distinct natures,” in the language of the court in the case of Carmichael et al. v. Browder, 3 How. R. 252, 258.
    2. The interlocutory order, setting aside the sales under the orders of the probate court to Grant and to Hill, and directing an account between them and complainants, is erroneous.
    1st. The orders of the probate court,are left in full force touching those sales, the administration of the estate is still open in the probate court, and yet the chancery court takes jurisdiction, sets aside the rules, orders an account of the negroes, and rents of lands sold, &c., and must, according to this interlocutory proceeding, decree, in the final decree, that Grant re-convey and deliver the land and negroes to the complainants, as heirs and distributees ; just as if the estate were not insolvent, as if there were not a debt or creditor whatever, when the record shows the reverse.-
    2d. The mode in which the account is ordered is erroneous. The order directs interest to be charged, in taking the account, “ making annual rests,” that is, Grant shall be charged with compound interest. There could be no other meaning or object in such an instruction to a master. Raphael v. Boehm, 11 Yes. Jr. 91, 94, 97, 98, 111.
    Compound interest is not allowable except in special cases, involving a trust, &c., and this is not a case of that nature. State of Connecticut v. Jackson, 1 John. Ch. R. 13, et seq.
    
    3. But the decretal order is wholly unsupported and unwarranted by the proof. On this point, Mr. McMurran reviewed at length the pleadings and proof, and insisted that there was not a particle of proof to show that the answer is false in any material denial or statement. There is no proof whatever to show, in contradiction of the answer, that Grant procured the orders of sale of the probate court to be made, either with the design of obtaining any of the property of the estate improperly, or for any other purpose, and that the sale of the personal estate was clearly bona, fide and fair.
    So also with reference to the sale of the real estate, the testimony with reference to which he reviewed, and especially that of McCaleb, and insisting that there was nothing to impair or invalidate that sale.
    4. But admitting, for argument’s sake, that the orders of sale were fraudulent and void, can the complainants seek a remedy in this court? We say no, — we say they are without remedy; or, if they have any, it is in the probate court.
    Who are the parties to these proceedings in the probate court, touching the representation of insolvency, the orders of the sale of .the real and personal estate, Which constitute the judgments •.and decrees .of that court? The executors, the heirs and dis-tributees of W. WV. Lloyd, deceased.
    The sale of the estate, real or personal, through the probate court, - “ is> a proceeding in rem, to which all claiming under the intestate are parties.” 11 Serg. &• Rawle, R. 429, 430. The granting a license to sell is an adjudication upon all the facts, and conclusive on all parties in interest, unless reversed or set aside in the same court for fraud.
    Indeed the statute requires that the heirs should be cited on an application for a sale of the real estate; thereby expressly making them parties. In fact, all the world are parties to a proceeding in rem.
    
    Then the complainants being parties to the probate proceedings, if fraud has been committed,- that court alone has the power to correct it, and set aside its proceedings. Peck v. Wood-bridge, 3 Day, Rep. 30; 3 Doug. 313; Townsend v. Kerns, 2 Watts, 180, 183; Osborne v. Moss, 7 Johns. R. 161; 3 Phil. Ev. (Cow. & Hill’s notes,) 854, note 610.
    
      D. C. Glenn, in reply to Mr. McMurran.
    1. The demurrer was properly overruled. The charge of fraud is the basis of the bill, and a general demurrer will not be allowed unless the charge is answered. 1 How. R. 558; 5 lb. 365 ; 5 S. & M. 20; 1 Ran. 76.
    2. He denies jurisdiction of this case in the chancery court. This is not a case of mere administration. See 1 How. R. 558, which is conclusive; see also 4 How. 455, and 1 S. & M. 208. The probate court is tumble to give full relief, even if it had jurisdiction in such a case. It cannot take accounts, settle conflicting rights, change titles by its decree, and reach third persons, who are strangers to the administration of the estate, and whose rights are beyond its control. To show jurisdiction in chancery, see 1 How. 108.
    3. He charges multifariousness in the bill. In the bill unconnected parties having a common interest centeringjn the jioint in issue in the cause, have united, viz., to take Grant, who holds it in fraud of all their righi 423; 71b. 630; 1 lb. Ch. 399.
    4. He objects to decree charging Grant vM the account. Grant has fraudulently placedlhijnji the executor, and such rule always appliesw> tr he has misapplied or misused assets. See o cases cited.
    5. He says two of us reported this estate insolvent, and that this is a bar to the bill. We answer that this was done through the fraudulent procurement of Dr. Grant, and by means of his deception towards us. Hence it is null and void, no bar to us, and he is estopped from setting it up. 5 How. 386; 1 John. Ch. R. 406; _ Mitf. Eq. PL 128, and’ note.
    6. If there are any errors in this decree, (which I deny,) this court can correct them.
    7. Finally, the facts of the case show .fraud. See particularly bill, Exhibits A to X, letters of Grant; see testimony of McCaleb and others first in the record, the manner of the sale, agreement of Grant to reconvey the property; see deposition of J. K. Hill, who, subsequent to Grant’s purchase at the executor’s sale, gave him four or five dollars an acre for land for which he only paid an average of some seventy-five cents; see ^receipt of J. H. Lloyd to Grant for a loan of two hundred dollars. The property is worth ten times as much as Grant ever paid for it.
    The record presents a strong case of fraud. The party guilty should be made to disgorge and settle upon fair and equitable principles. Such are contained in the decree of the vice-chancellor, and I hope the high court will affirm that decree.
    
      W. P. Harris, on same side.
    
      D. Mayes, on same side, also in reply to McMurran.
    The counsel for the appellee contends that equity has not-jurisdiction; that the probate court has, and that its jurisdiction is exclusive.
    This ground is not maintained for these reasons: .
    1. The sales, both of the realty and personalty, were made by the executors. Their letters have been revoked, and they are no longer before the probate court. The administrator de bonis non only represents that part of the estate which remained unadministered by the éxecutors. As far as the executors proceeded and administered, the power of the probate court ceased when they ceased to be before it. For this reason the probate court could not set aside the sales.
    2. Part of the property purchased by Grant was acquired by him indirectly through others who were the purchasers at the probate sales, and part of it he had aliened. These third persons could not have been brought before the probate court jointly with Grant.
    3. The probate court could not decree, and enforce that decree, that Grant & Co. should return the slaves and account for the hire, and reconvey the land and account for the rents and profits.
    4. It is a case of fraud which has ever been peculiarly the subject of equity jurisdiction. With far more force it might be contended that the constitutional provision, that the superior court of chancery should have full jurisdiction in all matters in equity, gave to that court exclusive jurisdiction, than that exclusive jurisdiction is vested in the probate court.
    
      The position next assumed by the appellee is, that the estate had been declared insolvent, and from this the inference is sought to be deduced that the complainants have no interest. It appears to me that the conclusion is much broader than the premises.
    A declaration of insolvency cannot be conclusive of the fact of insolvency; the declaration concludes no one as to the fact. Distributees might question it; creditors might question it. The fact of insolvency may exist, and yet there may be a large estate to distribute, for creditors may not present their claims. In case of bankruptcy the bankrupt still has interest. The distributees, when they sue, cannot be denied the privilege of investigating the facts on which they found their right, by the allegation that the investigation will be fruitless, as there will be nothing to distribute. As well might I plead in bar, when sued on my note or bond, that I have no goods or chattels, lands or tenements, subject to execution, and contend that my creditor has no interest in the matter.
    The next position of the complainant is, that if there was a fraud, the executors were parties to it, and therefore the complainants can have no relief.
    1. To exclude a party on this ground, such party must not onlyb e particeps fraudis, but in pari delicto. If executors were guilty of an attempt at fraud, they were seduced into it and stimulated by complainant. They were defrauded into an attempt at fraud.
    2. If guilty, the other complainants cannot be affected, and the executors being, one an heir, and each distributees, were necessary parties.
    3. They really attempted and intended no fraud; they intended from the beginning, and are now laboring in conjunction with the administrator de bonis non, to pay every debt of the estate. They had been induced to believe that the mortgage to the real estate bank was no debt; that it was wholly a fraudulent claim, and that the only mode to avoid becoming victims of the bank, was to pursue the course they did; and thus, to use an hackneyed phrase, in avoiding Scylla they fell into Charybdis.
    
      4. If they were guilty of the grossest fraud, and equity would not relieve on account of any merit in them, it would have been a perversion of a rule ; sensible and just, when sensibly applied, to have sustained the demurrer. The administrator represents the personalty, and the heirs the realty. The creditors will receive the estate real and personal through them. The executors are but conduits. But the bill is said to be multifarious, and Carmichael v. Browder is referred to. That case is wholly different. There were distinct persons representing distinct subjects, and the object sought to be attained with respect to each subject was a distinct object or thing. Here is a unity of character and claim on each side, and one fraud, (the trunk with -its various branches,) and that only to be removed.
    It is objected, that the vice-chancellor directs the computation of hire after Grant sold the slaves. And why not? In detinue we would recover the slaves or their value, in the alternative; with hire, by way of damages for the detention.
    In Kentucky an executor may, by statutory provision, sell slaves, when necessary, for the payment of debts. When he sells unnecessarily, equity compels him to pay hire to the time of the decree. Henning v. Conner, 2 Bibb, 188; Carrol et al. v. Connet, 2 J. J. Marsh. 202; Chaplin et al. v. Simmons’s Heirs, 7 Mon. 339.
    The same remarks and authorities apply to rent for the land. Larues’s Heii's v. Larues’s Ex’rs, 3 J. J. Marsh. 161,162. Annual rests are objected to, and 11 Yes. 91, and 1 Johns. Oh. R. 13, are referred to.
    The case in 11 Yesey supports the decree, that in 1 Johns. 13, only relates to the ordinary case of debtor and creditor, not to executors or trustees. Tire distinction is taken in Schieffelin v. Steioart, 1 Johns. Ch. R. 628. These cases will in all probability, with others, be relied on, on the coming in of the master’s report, to show that the interest should be allowed, and converted into principal at the end of each year; but as yet, the, chancellor has directed no calculation of interest, simple or compound. He has directed an accounting with annual rests only. That account will enable him, when the report comes in, to decide on the subject of interest, with the proper data before him. This, and this only, is the object of the rests. Schieffelin v. Stewart, 1 Johns. Ch. R. 624; Raphael v. Boehm, 11 Yes. 110.
    It is assigned for error, though not mentioned at the bar in argument, that it was error to direct compound interest against Grant, and simple, interest for him. No direction as'to interest having been given, the assignment- is premature. But as this court may settle the principles which are to govern, I would observe, that such direction, if it turn out to be a case for interest at all, would be strictly correct. If the balance fall against Grant, he, standing as trustee, may be charged with compound interest in favor of his cestuis que trust. But neither principle nor precedent justifies charging the cestuis que trust with compound interest in favor of the trustee.
    It is said to be an objection to relief, that there may be some difficulty as to what shall be done with the money and property, arising from the decree. Not the least. All the personalty goes to the administrator de bonis non, to be disposed of in due course of administration, and the land goes to the heirs, subject to be sold for the payment of debts. The administration by the executors being set aside, all will stand as 'if this part of the estate had never been administered. It was because of this destination of the assets, that some of the distributees condemned the course of the administrator de bonis non.
    
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

This bill was filed by the heirs of William W. Lloyd to have the sale of the real and personal estate, made by the executors, set aside for fraud. It charges that Lloyd left a large estate, real and personal, which was much involved, perhaps to the amount of twenty thousand dollars; that amongst other debts, there was one due to the Real Estate Banking Company of Hinds County, for which the land was mortgaged. Elizabeth Lloyd, wife of the testator, was appointed executrix, and John H. Lloyd executor. They qualified as such, but being inexperienced in the management of such business, sought the aid and advice of Grant, who was a distant relative,, and supposed to be a friend of the family, and were governed by his advice and direction. That placing confidence in his professions of friendship and honesty, they permitted him to manage the business as he thought proper. It was their intention to pay the honest debts, and the assets were sufficient for that purpose ; but Grant informed them that the banking company, to which Lloyd was indebted for stock, was gotten up in fraud, and ought not to be paid, and they were induced by his representations so to believe. With a view to avoid this debt, they entered into his arrangements, by which orders of sale were to be procured, and the whole estate sold to him. As an inducement, he agreed to purchase negroes at the sale for the executrix, and that his purchase of the estate should inure to the benefit of the heirs, and the property be returned after the payment of all just debts; that he drew up and gave them an agreement to that effect; that he prevented bidding at the sale, and caused the property to sell for less than its value; that he procured other persons to bid, and to transfer their bids to him, and to quiet some of Lloyd’s in-dorsers, assured them that the land should be held for their benefit; that having obtained titles, he now refuses to account with complainants, or to fulfil his promises, but claims to be the absolute owner of the entire estate, consisting of a large quantity of valuable land, and a number of likely negroes. The executors allege that they were not actuated by improper motives, but were acting with a view to the benefit of the estate. The prayer is, that the sales be set aside, and that Grant be held to account for the rents and profits.

To the bill the respondents first demurred, and the first ground taken for reversing the decree is, that the demurrer was improperly overruled. We do not think, however, that this was erroneous. The bill makes out a case which called for an answer. The respondent is charged -with having improperly procured a sale of the estate for his own benefit; that by fraudulent means he prevented a fair sale of the property for a full consideration, by keeping off competition, and that by such improper means he became the purchaser of the property at a nominal price, to the prejudice of the creditors and distributees. To correct such abuses, by setting aside the sale thus procured, is a common branch of equity jurisdiction. In equity the assets are treated as a trust fund, to be administered by the executor, for the benefit of all persons interested, according to their respective rights or interests. “ Every person who acquires personal assets by a breach of trust or a devastavit by the executor, is responsible to those who are entitled under the will, if he is a party to the breach of trust.” 1 Story, Eq. Jur. § 579, 580, 581; lb. § 422, 423, 424. This was the doctrine involved in the case of Prosser v. Leatherman, 4 How. 237, where many of the decisions in equity are cited; and it seems they establish the proposition, that an improper transfer of any of the assets, by an executor or administrator, with the knowledge and concurrence of the purchaser, imposes on him a liability in equity in favor of those interested. It was then held, that an /illegal transfer of a promissory note to an indorsee with notice, constituted a defence at law; and this was on the principle, that the indorsee under such circumstances could acquire no title. The objection, that the executor, who is complainant, was parliceps criminisy loses its force because others are, also parties, and amongst them infants, who <are not to be prejudiced by the acts of the executor. Nor do we think, that there is force in the objection, that the probate court has jurisdiction of this matter. It certainly could not give all the relief that the case demands, even if it could set aside the sales after they had been approved and affirmed, which, to say the least, is questionable. The case' is then to be considered on the bill, the answers and the proofs.

The appeal was taken from an interlocutory decree setting aside the sale, and for an account; and the first question which is presented in the investigation is, are the orders of sale made by the probate court, valid? If they are so, then it will only remain to inquire whether Grant is a fradulent purchaser. It is alleged in the bill, that the orders of sale were procured at the instigation of Grant, and with a view to carry out his schemes, but there is nothing that can be called satisfactory proof of this allegation. There is no pretence that the debts could have been paid without the saje of the personalty; and whilst it is alleged that the estate was sufficient to pay all the debts, yet it is not alleged that the personal estate alone was sufficient for that purpose. We are therefore to regard the orders of sale, both of the real and personal estate, as valid.

We shall first inquire whether Grant is a fraudulent purchaser of the personal estate, the sale of which was made on the 20th of March, 1840, and prior to the sale of the realty, which was made in September, 1840. The question is one of fact merely, which must depend upon the proof, as the answer positively denies the allegations'of the bill. The first proof is found in two letters of Grant to Mrs. Lloyd, dated the day preceding the sale, and also an unexecuted agreement drawn up by him, all of which are exhibits to the bill. He begins the first letter by suggesting the propriety of having it made known to bidders, that the best security would be required, and no other kind taken; and he gives as a reason for this, that the condition of the estate required purchasers to be prompt. He then advises the sale of four certain negroes with the others, and all to remain on the place, until other arrangements which would secure him well could be made. That he could not think of paying out cash for the estate, and taking property at more than cash prices, and then to let it remain on the place for the benefit of the estate. He assures them that he was actuated by friendly feelings, &c. &c. In the next letter, which was dated the evening before the sale, he informs Mrs. Lloyd that the sickness of his family would prevent him from attending the sale, and that Mr. Williams would therefore represent him in bidding off two negroes for her that if her sons acceded to what was wished and expected of him, to wit, that he should buy the rest of the negroes if they did not sell too high, the horses, farming utensils, &c.; that a rate of hire might be fixed on the negroes by Thomas and J. H. Lloyd, after the title was made to him. He then speaks of the prospect of arranging certain debts to the amount of the property, but that he could not be expected to buy property at an extravagant rate, when his object was to turn the effects into active means for the benefit of the estate, and to keep up and táke good care of the plantation; that he paid his debts promptly and the result would be disastrous to have the property sold to irresponsible men. Being unable to attend the sale, he said he would have to get-her son, William, D. McRae, or Hill to act for him. But he remarked in conclusion, that this proposition was only made on condition, that she could do no better, and requested that if she could make any other arrangement more to her satisfaction, that she would make it. These letters are remarkably verbose and incoherent, so much so that they are scarcely intelligible, yet it is believed that the foregoing remarks cover the substance. The conclusion left on the mind, after reading them is, that some agreement or arrangement had been spoken of previously, but the terms or condition of such agreement are certainly not to be definitely gathered from the letters. They are best understood by the draft of an agreement which was afterwards drawn by Grant, and sent to the parties for their signatures, though it was never executed. That agreement is almost as unintelligible as the letters. Divested of all unnecessary recitals, its substance is about this : that to indemnify the securities of Lloyd, and to prevent the payment of the debt to the Real Estate Banking Company, Grant had been substituted in place of the bidders at the sale, was to receive a title in his own name, and agreed to pay the amount of the property so taken by him, in discharging the debts due by the estate; that he was to receive ten per cent, interest on money paid by him, and to be paid all necessary expenses. The amounts paid out by him were to be refunded in three instal-ments, one third in January, 1842, one third in January, 1843,' and the remaining third in January, 1844. He was to keep the property on the plantation under the superintendence of Thomas Lloyd, provided he purchased the place, and when he was fully paid, he was to reconvey the property. It appears by the testimony, that Grant was not at the sale, but the negroes were bid off by sundry persons, who afterwards relinquished their bids to him. The sale took place on the 20th of March. 1840, and the foregoing agreement bears date the 26th. There is no further proof that Grant employed any person to bid for him, or that any thing was done by him, or by any other person, to depress the price of property. On the contrary, the proof is, that the negroes were sold for very full prices, if any, above their real value. And it also appears that Grant has paid for them. As there was neither combination, fraud, or collusion at the sale, we cannot pronounce it fraudulent. No bidder was deterred from bidding, or persuaded not to do so.- So far as we can judge from the evidence, the sale was a fair one; at least Grant is not implicated. Indeed no one has been defrauded. The negroes sold for a full price, and the estate has been paid. The agreement above described, even if it had been executed, did not make the sale necessarily fraudulent. It seems to have been entirely voluntary on the part of Grant, and it had no influence in deterring bidders, or in causing property to sell for less than its value. When such agreements are made and carried out to the prejudice of the creditors and distributees, they may be fraudulent, but this seems to have been attended with no such, consequences. Nor does it appear in reality that any such agreement was fully executed. In his last letter, Grant informed Mrs. Lloyd, that if she could make a more satisfactory arrangement he wished her to do so. This proves that there was no decisive understanding between the parties. We need not say whether such agreements made by executors or administrators could be tolerated under any circumstances. A sale which is not fraudulent, if regularly made, cannot be set aside. And if it has been made, and such an agreement entered into afterwards, if it be binding, it gives but a right to redeem. But we see no ground for setting aside the sale, and think the vice-chancelloj erred in this particular.

We now proceed to the investigation of the sale of the real estate. This took place in September, 1840, after Grant had acquired most of tíre personal property. The bill represents the same agreement to have existed in reference to both the real and personal estate, but the circumstances attending this sale were very different, and we need only advert to one fact disclosed by the proof, to show this difference. Daniel McCaleb, a witness, went to the sale to purchase some of the land. In conversation with one of the Lloyds, he was informed that the land was to be bought in by Grant for the benefit of the indorsers. He went to Grant, who gave him the same information. In consequence of this understanding, which seemed to exist, he did not bid-There were very few persons at the sale, and that the few who were there were fully informed of this understanding, and influenced by it, we cannot doubt. This conclusion is fortified by the extremely low prices at which the land sold. True, it is said to be subject to a mortgage, but the amount of that mortgage debt has not been shown. We derive some light on this subject from the testimony of Mr. McCaleb, which deserves to be noticed somewhat more at length. He went to the sale for the purpose of bidding, but understood there were indorsers who were likely to be injured, and it was intended that the lands were to be bid off to secure them. He understood from William S. Lloyd, that there was a mortgage to the Real Estate Banking Company of Hinds County, but most of the debts had been paid off in cotton, and that the object of the sale was to secure the indorsers, which could be best effected by the lands being bid off by them. The indorsers named were Grant, Hill, and William S. Lloyd. The lands were worth from three to four dollars per acre. Now it is certain, that there was a combination amongst certain persons to buy the lands. It is also certain, that the effect of that combination was to deter or keep off bidders, and assuming that their object was what they professed it to be, to secure indorsers, though the proof does riot establish that object, that of itself was an illegal purpose. Creditors stand upon an equal footing. A combination amongst a certain class of creditors is fraudulent as to others, and equally so as to all concerned. True, Mr. McCaleb wanted but a small quantity of the land, but the validity of a sale is not to be measured by the extent of injury. There are no degrees in fraud. t *

The voluminous record under consideration furnishes evidence of many other circumstances, which might be mentioned as tending to establish the fact, that there was a combination amongst a few individuals to prevent fair competition at the sale. The recitals in the various deeds and other instruments may be mentioned as instances. It seems to have been thought necessary to furnish an excuse for the low prices, and hence it is generally stated that the land was mortgaged, that it sold low in consequence thereof, no person being willing to risk any thing in purchasing. In taking a deed from the administrator de bonis non for a small tract not sold by the executors, it is recited that the land was scarcely worth paying taxes for. The price bid was five cents per acre. These extraordinary and unusual recitals, in deeds and instruments, evidently prepared by Grant, look suspicious. They look as though they were intended to give apparent fairness to transactions that might be otherwise deemed, unfair. Altogether, we cannot come to any other conclusion than that the sale of the land should be set aside.

It was said in argument, that the heirs had no interest in this matter, inasmuch as the estate had been reported insolvent. The insolvency may have occurred in consequence of the fraud in the sale. Heirs are not precluded by a report of insolvency from showing that the estate has been improperly declared insolvent.

It remains to settle the conditions on which the sale is to be set aside. Grant will be entitled to retain a lien on the land for the amount he has paid on the price of it, with eight per cent, interest. He will be chargeable with reasonable rents, and allowed for permanent and valuable improvements, not to exceed the value of the rent. So far as he has purchased in the widow’s dower he will be entitled to hold it, that being a matter not involved in this controversy. The order for the sale of the land being valid, it must of course be resold under said order, subject to the rights abovementioned. .

The decree is reversed, and cause remanded for proceedings according to this opinion.  