
    [Chambersburg,
    October 31, 1827.]
    DOBBINS against STEVENS.
    APPEAL.
    A counsel who has been consulted concerning the title of land about to be sold under an execution, and stated correctly that it was subject to liens, by which purchasers were deterred from bidding, is not thereby precluded from becoming a purchaser himself. ■
    Appeal by the defendant from the opinion of Huston, J., holding a Circuit Court for Mams county, in pursuance of which a verdict was rendered in favour of the plaintiff.
    The suit was an ejectment brought by James Dobbins against Thaddeus Stevens, for 200 acres of land in Mams county, of which Thomas Cross was seized in his demesne as of fee, and by his last will and testament devised the same to the plaintiff. “ James Dobbins, Esq. his heirs and assigns forever, provided he charges himself with the sum of two thousand pounds, the price at which I value the same, which said sum, together with the proceeds of my personal estate, I bequeath in manner following.” The testator then bequeathed to his wife Elizabeth, three hundred and forty pounds, to be paid her in six months after his decease, and directed his executors to apply the sum of one hundred pounds for her support, which sums were in lieu of dower at common law. To his grandson, John Cross, he bequeathed one thousand pounds, to his grandchildren, the sons and daughters of his daughter, Martha M'Murray, (of whom it appeared in evidence there were eight,) twenty pounds a piece: to Jaihes Dobbins, sixty pounds: to Martha Vanest, two hundred pounds: and all the rest and residue of his estate he directed to be distributed by his executors among such of his grandchildren as needed and deserved it most: and he made James Dobbins and another executors.
    In the inventory of Cross’s estate, Dobbins charged himself with two thousand pounds agreeably to the will. A judgment was'obtained April, 1822, against Dobbins, by the Bank of Gettysburg for three thousand one hundred and eleven dollars, on which execution issued, and the land was sold by the sheriff to the defendant, Stevens, for six hundred and thirty dollars, who paid the money to the sheriff, received a deed acknowledged, (though the acknowledgment was objected to,) and took possession.
    It appeared in evidence, that a considerable portion of the legacies had been paid, but that some remained due and unpaid: and a report preyailing prior to the sheriff’s sale, that there were liens on the land on account of these unpaid legacies, Stevens, who was a gentleman of the bar, was applied to for his opinion by a pexson who intended to bid one thousand nine hundred and fifty dollars, if he could obtain a clear title. He stated his opinion to be that there were liens on the land, and the person declined attending the sale. On other occasions before and at the time of the sale he gave the same opinion. • Stevens afterwards, under an arrangement with other persons, bid for and purchased the property at the sheriff’s sale on joint account, with-an understanding that the legacies wei’e to be a lien on the land.
    His Honour charged the jury that the conduct of Stevens in giving an opinion, by which persons intending to purchase were deterred, and the property was depreciated, was a legal fraud, and invalidated the purchase, and that the plaintiff was entitled to recover: and a verdict, was rendered in favour of the plaintiff.
    
      Stevens, for the appellant.
    The charge put actual fraud out of the question. It was also laid down that being .the attorney did not disqualify. But it was put on the ground of the attorney having been consulted, even though the advice he gives be correct. This is not the case of a trustee — the sale was not the attorney’s sale. The same objection would lie to a man, not an attorney, who should give advice as to the title. He cited 2 Dall. 131. 6 Binn. 395.
    
    
      Dobbins, contra,
    
    cited 11 Mod. 208. 10 Wheat. 226. The legacies Were not a charge on the land. The executor was only to charge himself with the value of the land in the inventory. The whole will shows a personal trust in the executor. The estate was composed of real and personal blended in the hands of the executor, in which no particular legatee was to have the benefit of the land as a security.
    The attorney, therefore, gave advice calculated to prevent bidders, who would have had a clear title. The policy of the law strongly forbids his becoming a purchaser.
   The opinion of the court, (Huston, J., taking no part,) was delivered by

Gibson, C. J.

Actual fraud cannot be pretended, for I think it clear the advice given, was perfectly correct. A chancellor would raise the legacies out of the land in the hands of Mr. Dobbins or any one claiming under him. He was not an object of the testa; tor’s bounty, but a purchaser for value, and we are not to suppose the testator intended to part with the land as a security. Mr. Stevens was therefore altogether accurate in advising that the legacies were a charge on the land.. The question then is, whether a counsel who has been consulted about a title which is going to be sold on an execution, is to be excluded from becoming a purchaser. I cannot discern the policy of the rule which should disqualify him. A.trustee may not purchase at his own sale, because,being both buyer and seller, he would have it in his power to purchase at his own price; and as his motives could rarely be penetrated, the facility with which he might accomplish a fraudulent purpose, at but little risk of detection, would offer a temptation which ought not to be cast in the way of any one. In such a case as the present, there can be no such temptation. If the counsel were to advise erroneously, it would be easy to show it; .and any other sort of management or trick might^be made apparent as readily when practised by a counsel as by any one else. If no one has been injured by advice which it was proper for the counsel to give, and for the client to receive, who shall complain? I will not say that a counsel, or any one else who has purchased at an under price in consequence of erroneous advice to those who would otherwise have bid, ought to retain an advantage thus obtained. Such a loss ought not perhaps to be borne by an innocent party in favour of him whose act occasioned it. But here was neither loss nor injury. If Mr. Stevens had refused his opinion, other counsel might have been consulted, who, it is fair to presume, would have advised accurately, and consequently in the way that he did: but although it be possible that they might have arrived at a different conclusion, yet the interest which Mr. Dobbins may be supposed to have had in the chance of their doing so, is one that cannot be recognised here. Doubts of the title once excited, they would not have bid without having those doubts removed; and we ought not to declare the sale void for professional advice given by -the purchaser, correctly, in good faith, and without,injury to anyone. The cause therefore is to be sent to another jury;. but as Mr. Stevens purchased with an understanding that the legacies were to remain charged, instead of being paid out of the purchase money, the new trial is awarded on terms that he stipulate on the record to satisfy the legacies out of the land, if the plaintiff shall not recover. ■

Judgment of the Circuit Court reversed, and a new trial awarded.  