
    
      James C. Brown, trustee, and Susan G. Brown, v. Jabez G. Brown and Charles J. Brown.
    
    A trustee who purchased land for the benefit and at the request of his cestui que trust, but took the titles in his individual name, and afterwards sold off portions of it and made titles and took the securities for the payment of the purchase money, also in his individual ñamé, and who had admitted the fiduciary nature of the transaction in an answer to a former bill, and in a letter to one of the purchasers of a portion of the land, was not allowed afterwards to deny the trust, or to avail himself of the Statute of Limitations, or that of “ Frauds and Perjuries.”
    It is not necessary that a trust should be created in writing, in order to prevent the bar of tire Statute of Frauds and Perjuries; it is sufficient if it be manifested, and proved by some writing signed by tire party, &c.
    
      Before Dunkin, Ch. at Barnwell, February, 1847.
    The facts of the case are sufficently set forth in the following circuit decree. ■
    
      Dunkin, Ch. The defendant, Jabez G. Brown, was the trustee of Mrs. Susan G. Brown (wife of the other defendant, Charles J. Brown) under two deeds described in the pleadings. In February, 1845, the complainant, James C. Brown, was substituted as trustee in the.place and stead of Jabez G. Brown. The object of this bill, filed on the 12th Nov. 1845, is to obtain an account of the transactions of the former trustee, J. G. Brown. The defendant submits his readiness to account; and the only question which it seems necessary to determine, preparatory to the reference, is as to the liability of the defendant to account for the proceeds of certain portions of the Belfast plantation sold by him, and also for the value or rent of about five or six hundred acres of the same tract, lying below the Lower Three Runs, and in the occupation of the defendant. In order to understand the principal matter in controversy between the parties, it may be necessary to state, that in 1835, Mary Carr, the mother of Mrs. Brown, conveyed the Duck Savannah plantation to Jabez G. Brown, in trust for her daughter, to her sole and separate use, and on other trusts set forth in the deed. On the 8th January, 1838, J. G. Brown, the trustee, at the request of Charles J. Brown and his wife, sold the Duck Savannah place to Dr. C. K. Ayer, for six thousand two hundred dollars ($6,200)— two thousand in cash — balance in one and two years, with interest from date. On the 8th February, 1838, the defendant, Jabez G. Brown, purchased, from the executor of Thomas G. Lamar, a plantation on Savannah river, called Belfast, or Lamar’s Mills, containing about nine thousand acres of land, for eight thousand dollars ($8,000) — two thousand dollars in cash — the balance in one, two and three years, with interest from the date. The conveyance of the entire tract was made to Jabez G. Brown, individually and absolutely.
    The allegation on the part of the complainant, Mrs. Brown, is, that the sale of the Duck Savannah plantation, and the purchase of Belfast, were substantially cotemporaneous transactions, and made at the instance and by the request of herself and her husband; that Belfast containing more land than was required for the trust estate, the title was taken in the name of the trustee individually, in order to enable him, with greater facility, to make titles to such portions as might be sold off to meet the instalments' of the purchase money. That the defendant was to retain the tract of five or six hundred acres below the Lower Three Runs absolutely, on accounting lor the value thereof, at the rate at which the whole was purchased. It is difficult to condense the answer of the defendant, without the hazard of doing him injustice. JHe admits, however, that the sale of Duck Savannah plantation was made at the request of the parties, and that a short time afterwards he purchased, in his own name, the Lamar Mills, but denies that the whole of the Lamar Mill place was purchased with trust funds. He denies that he ever agreed to take the pine land place of about five hundred acres, at the price of the purchase thereof. “ He admits that he did cultivate some of the land mentioned in the said bill, for the space of about two years, but the said cultivation of the said land was of little value, and that this defendant, himself, cleared the said land ; for all of which this defendant is willing and ready to account.” The defendant also insists on the benefit of the Statute of Frauds and Perjuries, and the protection of the Statute of Limitations. It appeared that immediately after the purchase of the Belfast or Lamar Mills plantation on Savannah river, the complainant, Mrs. Brown, with her husband and family, removed to it, and have always since resided there. Within a few months after the purchase, and during the winter and spring of 1838, about four thous- and acres of the tract were sold to four different persons, J. Harley, J. J. Harley, J. Purse and J. Furse, Jr. for an aggregate amount of about $>8,950. The transactions were negotiated, surveys made, &c. almost exclusively by Charles J. Brown, the husband of the complainant. But the titles executed by the defendant, Jabez G. Brown, and the securities for the purchase money taken in his name.
    In January, 1840, a petition was filed in this court, in the name of Charles J. Brown and Susan G. Brown, his wife, setting forth the sale to Dr. Ayer, and that with four thous- and dollars of the consideration money, the trustee “ had purchased for them a plantation on Savannah river, commonly known as Lamar’s Mills, with about 5400 acres of land lying in the district aforesaid.” The petition prays for a confirmation of the sale to Dr. Ayer, and that Jabez G. Brown may execute a deed to the petitioners, declaring that he holds the plantation on Savannah river subject to the uses declared in Mary Carr’s deed, and that the balance of purchase money tobe received from Dr. Ayer may be invested in negroes, &c.
    To this petition, signed by the petitioners, is appended the following, viz: “ 1 do hereby consent and agree to comply with and perform the prayer of the foregoing petition, should the same be sanctioned by this honorable court,” signed “ J. G. Brown, test J. J. Ryan. ” On the 15th January, 1840, an order was made in conformity with the prayer of the petition and a declaration of trust, (dated 15th August, 1840, but proved and recorded 6th June, 1842,) was accordingly executed by the defendant.
    It is difficult to reconcile this transaction with some of the allegations in the defendant’s anwer. He does not respond to that part of the bill which charges that the purchase of the Belfast plantation was made at the request, and for the benefit, of the cestui que trust, and that the conveyance was taken to him individually for the purpose of facilitating subsequent sales of portions thereof, but he avers, not only that the title was taken in his own name, but that the vendor “ traded with him in his private capacity, and not as trustee.” If by this statement the defendant meant to affirm that the deed from the executor of Lamar expressed the true character of the transaction, that it was a purchase on .his individual account, and not in his fiduciary relation, it is inconsistent, not only with the acknowledgment and declaration in January, 1840, but with that part of his answer which, while it denies his agreement to take the five hundred acres of pine land at the price mentioned, admits his occupation of a portion of the premises, which he cleared and cultivated, and “ for all which he is willing and ready to account.” v
    The defendant in his answer further states, (after reciting what took place in January, 1840, in relation to the 5,4.00 acres) that “ he, the defendant, has since sold nearly all the remainder of the said Lamar Mills place to various persons for various amounts, with the knowledge of the said Charles J. Brown and Susan G. Brown, and without objection on their part;” and that “he is advised that they have no right to call him in any way to account for the proceeds of the sales of the said balance thereof.”
    As has been stated, so far as the court can gather from the testimony, this is an entire mistake of fact, and a mistake in an important párticular. The sales of the remainder of the Lamar Mill tract, after selling off the 5400 acres, were not subsequent to or since the proceedings in January, 1840, but were completed eighteen months prior to those proceedings ; and the 5400 acres, with the tract of five or six hundred acres occupied by the defendant, were all that then remained unsold. The charge of the bill is, that it was under the promise and assurance of the defendant, that he would account for the sales already made, that application tó the court was made in January, 1840. The answer of the defendant on this point, is argumentative rather than explicit, and submits that any “ such supposed agreement ” would be invalid under the provision of the Statute of Frauds and Perjuries. To obviate this objection, the complainant gave in evidence a letter from the defendant to Maj. James Furse. This latter individual was one of the purchasers of a portion of the Lamar Mill tract in May, 1838. He ‘had executed his note, $1,375, to the defendant in his individual name for the purchase money, and judgment had been rendered on the note ; the letter bears date 27th January, 1845, and is as follows :
    
      “Dear Sir — I have no doubt, from an entry I saw in the Sheriff’s books yesterday, that an attempt will be made to delude you, and by way of putting you on your guard, I hereby forwarn you not to pay the judgment I obtained against you as trustee for Mrs. Susan G. Brown to any one but myself or the Sheriff, for if you do I shall hold you responsible under the judgment, as that judgment was obtained against you in my name. I keep a copy of this letter as a notification to you, and I hope you will acknowledge the receipt of this. Respectfully your friend,” signed “J. G. Brown,” addressed “Major James Furse — Present.”
    Within a fortnight after the date of this letter the Court of Equity for Barnwell District was in session — on a petition presented on behalf of Mrs. Susan G. Brown, the trustee was changed, and James C. Brown the complainant substituted for the defendant Jabez G. Brown. A bill of injunction was then filed by the new trustee, against the former trustee, setting forth the sales of the several portions of the Lamar mills tract on account of the trust estate; that the securities had been taken in the individual name of the de- • fendant J. G. Brown, who had obtained judgments on them or some of them, and that he had assigned part of one of the judgments for his own private debt. The prayer of the bill was for an injunction against the defendant and against the Sheriff. The answer of the defendant, Jabez G. Brown, was sworn to in the usual form on the 11th February and was filed on the 12th February, 1845. He admits that the complainant had been substituted for himself as trustee of Mrs. Susan G. Brown. “Admits that the lands mentioned in the said bill were sold to the persons therein named, at and for the prices specified, but this defendant most positively affirms that the notes taken by him in his individual name was in strict accordance with the request of Susan G. Brown and her husband Charles J. Brown.” The defendant goes on to affirm that “one of the purchasers, J. Furse, Jr., had paid to Mrs. Susan G. Brown nearly four hundred dollars on his note while the note was in the defendant’s possession; which clearly proves” (continues the answer), “that this defendant has always considered the said notes as belonging to the trust estate.” Defendant admits that he “obtained judgments on the notes in his own name, but that his compliance with the request of his cestuique trust in the manner of taking the notes, rendered it impossible for him to have done otherwise.” Defendant admits that he “made a partial assignment to William J. Harley for $367 of one of these judgement,” but avers that he “ was in advance for the trust estate to a large amountand that “ he thought it nothing but just that he should in some maimer reimburse himself out of the proceeds of these notes, and accordingly gave the assignment,” &c.— The defendant concludes his answer by submitting to the Court the manifest injustice “ that he should be harrassed and run to great expense in defending eveiy sort of cause or complaint that the said Susan G. Brown, or her trustee, should please to institute against him, when all their objects might have been attained under the petition for his removal at the present Court.”
    It was stated at the hearing, that under the bill and answer of Feb., 1845, an order for injunction had been granted, and that the fund was impounded in the hands of the Sheriff.— No copy of the decretal order was placed in the possession of the Court. The rule is considered as satisfactory as it is well settled, that “what the parties have once had an opportunity of litigating, in the course of a judical proceeding, they shall not draw into question again, but that what might properly have been put in issue shall be concluded to have been put in issue and determined.” McDowell vs. McDowell, Bailey's Equity, 330. Butin the litigation of Feb., 1845, the defendant leaves nothing to inference — he indignantly repels the charge that he had assumed any individual interest m the sales of the lands, and throws back the suggestion of the cestuique trust, that it was in consequence of any neglect of duty on his part that the fiduciary character in which he acted did not appear on the face of the papers. It is inconsistent with the established principles of this Court that he can be now permitted to assume a position which he has thus repudiated, and to invoke the aid and protection of the statute to consummate a purpose, such as it was enacted to prevent, and which the defendant so solemnly, and no doubt so conscientidusly, disavowed.
    The Court can perceive no such evidence of an agreement on the part of the defendant to purchase or retain the Lower Three Runs tract as would be obligatory upon him, especially against the positive denial of the answer. The rents and profits whilst in his possession must be the subject of inquiry before the Commissioner, and so of the other subordinate matters embraced in the pleadings.
    It is ordered and decreed that it be referred to the Commissioner to take an account of the transactions of the defendant, Jabez G. Brown, as trustee of Mrs. Susan G. Brown, upon the principles of this decree, including therein the proceeds of the sales of so much of the Belfast plantation as were disposed of by him. Parties to be at liberty to apply for such further orders pending the account as may be deemed necessary for the security of the fund, or the interests of those concerned therein. And final order being suspended until the hearing of the Commissioner’s report on the account.
    
      Grounds of Appeal.
    
    The defendant, J. G. Brown, moved to reverse so much of the Chancellor’s decree as relates to the lands sold by the defendant, that is the Lamar lands other than the plantation, on the following grounds, viz :
    1. Because there was not sufficient proof of any agreement to purchase said lands for the cestui que trust — nor would such agreement have been valid — nor was there any proof that a dollar of the funds of the trust estate was invested in the purchase of those lands. On the contrary, the proof was clear and explicit — nay, it appeared by the records of the Court, and is so slated in the decree — that of the proceeds of the Duck Savannah sale, (the only source whence the de-' fendant could have obtained trust funds) four thousand dollars ($4000) were invested in the plantation on Savannah river, and the balance, by order of the Court — at the instance of the cestui que trust — was invested in negroes.
    2. Because the decree (it is respectfully submitted) is predicated on a mistake of facts as to the cultivation of land by defendant, as to the petition filed in 1840, and as to the bill for injunction filed in 1845 — as to which last, so far from it having been “stated at the hearing that under the bill and answer of February, 1845, an order for injunction had been granted” — it was (we most respectfully submit) expressly stated by the defendant’s counsel, not gainsayed by the opposite counsel, and proved by the records of the Court, that the injunction prayed for by the bill of February, 1845, was refused, and at Februaiy term, 1846, the bill itself was dismissed.
    3. Because, if an agreement to purchase, and the application of trust funds, had been clearly and fully proved, the cestui que trust — it is respectfully submitted — would have been entitled to nothing more than a due proportion of the purchase, or a lien for the amount so invested, and having, under the sanction of the Coart, received a due'proportion, and more than a due proportion, of the purchase, she is not( it is respectfully-submitted) entitled to any more, either under the doctrine of resulting trusts or otherwise.
    4. Because the defendant — it is respectfully submitted, was entitled to the protection of the statute of limitations.
    5. Because the defendant — it is respectfully submitted, was entitled to the benefit of the statute intended to prevent frauds and perjuries.
    6. Because on the case, as made by the bill, answer, exhibits and proofs, the decree — it is respectfully submitted — ought to have been in favor of the defendant, and the bill dismissed —so far as relates to the lands in dispute.
    Owens, Bellinger, and Hutson, for the motion.
    Patterson and Bauskett, contra.
    
   Dunkin, Ch.

delivered the opinion of the Court..

The principle on which the appellant insists is very well settled. In order to prevent the bar of the Statute of Frauds and Perjuries, although it is not necessary that the trust should be created by writing, it must be manifested and proved by writing — the acknowledgment must be “ by some writing signed by the party,” &c., Steere vs. Steere, 5 J. C. R. 1. The letter of the defendant to Furze states, in so many words, that the judgment was obtained by him “ as trustee for Mrs. Susan G. Brown,” and in his answer to the complainant’s former bill, he not only admits the trust, but indignantly repels the insinuation that he had, at any time, disavowed his fiduciary relation.

It is ordered and decreed, that the appeal be dismissed.

Johnston, Ch. and Caldwell, Ch. concurred.

Appeal dismissed.  