
    Melancthon S. Wade v. Linton W. Pettibone and others.
    The auditor, in an execution, may claim the benefit of a purchase made by his attorney, especially if the whole debt is not paid; provided he assert his right in a reasonable time.
    This is a bill of review, brought to review a case decided in bank at December term, 1841, which was a bill in chancery from Delaware county. The case is reported in 11 Ohio, 57, M. S. Wade v. M. D. Pettibone.
    The facts of the case are as follows:
    In 1835, the Miami Exporting Company having been for many years a suspended institution, and being about to recommence ^business, made certain disposition of their existing claims, for the benefit of their old stockholders. By a resolution of July 13, 1835, they divided their claims into classes, rating them after the probability of making collections; and on the fourth class, which they call “ desperate" they authorized their agent to retain, as a compensation, fifty per cent, on the amount collected. They appointed the plaintiff their agent, and authorized the president to convey to him, in trust for the stockholders, all the property of every description, owned by the institution.
    Some time in 1835 or 1836, the plaintiff employed the defendant, M. D. Pettibone, who was a solicitor in chancery, to bring a suit to foreclose a mortgage on lands in Delaware county ¡ against the heirs of James Keyes, one-third of which land belonged to the Bank of the United States, and the two-thirds to the Miami Exporting Company, which claim was included in the fourth class, and therefore fiity per cent, of it belonged to the complainant.
    The suit was duly prosecuted, and the land advertised for sale on October 3, 1836. On September 7, 1836, about four weeks before the sale, Pettibone wrote a letter to Wado, advising him that the land had been appraised by the master, and of the time of sale, and inquiring if ho should bid it in for the company, if it should sell for less than the appraisement. No answer to this letter was received at the time of the'sale; and Pettibone attendeod, and bid it in,, in his own name. On the 11th of October, eight days after the purchase, Wade wrote to Pettibone, instructing him to purchase the property, and apologizing for not writing sooner, by sayijjg that his letter was mislaid.
    
      On November 29, 1836, Pettibone again wrote to Wade, reciting the sale and his purchase; and stating that, as he inferred from his receiving no answer to his letter, that the company did not wish to purchase, he had purchased for himself; but that, since his letter had been mislaid, he was now willing to relinquish his purchase to the company, and would ^release when he acquired a title from the master. He offered to take it at the appraisement, but if they deemed it best to retain it, he would con* vey all his interest, as soon as he got a deed from the master. And in answer to inquiries upon the subject, he said that he did not know the amount of improvements made by a tenant under an adverse tax title, but that he would find out, and see that some one fays the taxes.
    
    On the 9th of December, Wade replied to this proposition, that Pettibone might retain the land at two dollars per acre, and if he did not accept it on these terms, he directed Pettibone to make the deed to M. S. Wade, trustee and agent of the Miami Exporting Company.
    Pettibone, on the 27th of December, by another letter, renewed his offer to purchase; to pay $1,200 on certain payments; and repeated, that if these terms were not accepted, he would forward to Wade a deed, if he preferred it, on the return of the master.
    Wade answers this letter on the 10th of April; declines setting a price upon the land until he sees it, and expects to be up to Delaware some time in May, and offers the preference to Pettibone, if he concludes to sell. In this letter he also states that he was making arrangements with the agent of the United States Bank to make a division of the land, which would save expenses, and requested Pettibone’s opinion as to which end of the tract of land ho should let them have, if any.
    This request Pettibone never answered, and no further communication was had between them until August, 1839. In June, 1839, Pettibone visited Cincinnati, the residence of the plaintiff, whore, ho says, he sought him, but could not find him. Ho then paid to the officers of the company the purchase money, $650.89, after deducting the master’s costs and his own fees, and thenceforth claimed the lands as his own.
    Upon this case the court decided against the complainant. Since then Pettibone has died, and this bill of review is brought against his heirs and personal representatives.
    
      *T. W. Powell, for complainant:
    "We claim that the court erred in deciding the original case, in two particulars; first, in not decreeing a specific performance of the agreement of Pettibone, to convey the land to Wade; and, secondly in deciding that Wade’s right to call upon Pettibone to account for the purchase he had made, in his fiduciary character, was lost by lapse of time.
    As to the second point (the relation of the parties being admitted, it is needless to discuss the first), the question seems to be, from the view taken of the ease by the court, what shall be such a lapse of time as will bar the bringing of a suit to enforce the conveyance of property purchased by a trustee or other fiduciary purchaser.
    Now, in looking into the books, not a case can be found where a suit is barred by the lapse of time, in so short a period as in this case, or anything like it.
    The doctrine upon this point was very well reviewed by Judge Betts, in his opinion as vice-chancellor, in the case of Slee v. Manhattan Company, as reported in 1 Paige’s Ch. 55, who says: “ But though the cestui que trust has an election in this (the resale of property purchased), it is not ad libitum, as to time. It must be exercised within a reasonable period after he is apprised of the purchase. No general rule can be laid down with exactness, defining what shall be, in all cases, reasonable time. The numerous cases which have occurred and turned upon this point, have-been decided on their own peculiar circumstances. Various periods have accordingly been adopted, at which the courts say the cestui que trust shall be presumed to have acquiesced in the purchase, and he is held absolutely concluded from disturbing it. Bergen v. Bennett, 1 Caine’s Cases in Error, 1, was a foreclosure of a mortgage under the power, and the mortgagor was under sixteen years’ acquiescence, knowing the sale, denied the right of redemption. ^Chancellor Dessaussure refers to numerous English cases, in which relief was granted after a lapse of six, seven, twelve, fourteen, and twenty years; to which may bo added 2 Bro. P. C. 111, S. C., 15 Vin. 468, in which relief was denied after six years. The result of the cases show manifestly, that courts do not consider it a matter of course to divest the purchaser of a trust where he has acquired the formerlegal title. A proper diligence must have been indicated on the part of the cestui que 
      
      trust. In the present case, I should deny the plaintiff relief upon this ground. He was present at the sale, and intimated no dissatisfaction with the defendant’s purchase. He considered the sale absolute, and not for his benefit, because he declined bidding, as he states, on account of embarrassed circumstances. He allows the defendants to take the estate as owners, and never intimates a claim upon them until 1825.” (The sale was in 1817, eight years beforo.) “If they were only trustees to sell, equity, under all those circumstances, would presume the trust discharged to his approbation, and hold him now concluded from disturbing the same.”
    In Powell v. Murray, 2 Edw. Ch, 644, it is said: “ In Gregory v. Gregory, Cooper, 201, a bill was filed to set aside a purchaso made by a trustee, upon the ground that the consideration for the conveyance was grossly inadequate; that the plaintiffs were ignorant at the time of the value of their interest under the will, and were in indigent circumstances, and advantage was taken of them. Eighteen years elapsed before filing the bill, and upon that ground alone it was dismissed. 1 he court would have released, if the transaction had been more recent.” 1 Jac. Ch. 631, S. C.
    The case referred to above, by Judge Betts, in which Chancellor Dessaussure reviews the cases upon the doctrine of the lapse of time, is found in 4 Dos. Ch. 706, Butler v. Haskell, in which he says, after showing the shortest time found in any case was six years : “ Thus we perceive that mere lapse of time will not bar a claim, otherwise good, unless it be so extreme as to furnish very strong presumptions against the claim; which *lhe court will attend to more readily, if some of the witnesses or the party whose acts are impeached, are dead.”
    I have looked into all the cases cited in the former case, 11 Ohio, 59, and find, it is impossible to ascertain how long it was in each of those cases between the time of the sale and the application to set it aside. The reports do not give sufficient dates to ascertain the fact; but sufficient does appear to show that relief was given after the lapse of several years. No case has been found where the lapse of time was less than six years, whoro the relief was refused.
    S. Finch, for defendants.
   Birchard, J.

This bill seeks the reversal of a decree rendered in this court at December term, 1841.

The ease is stated in 11 Ohio, 51.

It'is claimed that the deed is erroneous in two particulars: 1. In not decreeing a specific performance of the agreement to convey the land to Wade. 2. In deciding that plaintiff’s right to call upon Pettibone to surrender the purchase made in his fiduciary character, was lost by lapse of time.

The case was fully examined on the original hearing, and that decision has again been carefully re-examined. We are entirely satisfied that the orginal bill was rightly dismissed. To our own minds, the reasons then given are satisfactory.

For the satisfaction of counsel, it may be well to state more at length the objections to a deed for specific performance. One very serious obstacle in the way is, the want of a contract between the parties, based upon a sufficient consideration. On the part of Pettibone, there was a mere voluntary offer to relinquish his purchase to Wade, or keep the property at $1,200; the acceptance by Wade was a refusal to set a price upon the land, until he should see it in May, 1837, and then Pettibone was to have the preference, if he concluded to sell. This ended the negotiation. No more was heard about the agreement for two years. Pettibone was not relieved from the responsibility he had assumed. If anything could be gathered from the correspondence, showing what the intention *of Pettibone was, it is that he was willing to lot Wade have the land if ho would take it off his hands, and release him from the payment of the purchase money. Probably Wade intended at the time to do this; but he did not do it. He waited until the master required Pettibone to advance the purchase money out of his own funds, and until it had been paid into the hands of the party appearing to be entitled to it from the record. Had there been a sufficient and specific contract, in place of a mere amicable but indefinite understanding, no court of equity should decree its specific performance, after such laches, and after this change in the situation of the parties. Wade had neglected his duty; he had not been prompt where promptness was required.

This same neglect of duty is equally fatal in the other aspect of the case. The opinion of the late chief judge stands upon this basis. He does not place the decision upon the ground that a good claim had been lost by mere lapse of time, but by laches, by neglect to perform what, under the circumstances, was a positive duty, and required upon principles of fair dealing between .man and man. Bill dismissed.  