
    William Keaton & Elizabeth his wife v. Enoch Cobb & Mary his wife,
    From Wayne.
    
      Á. fraudulent trustee, who, pending- a litigation between, him and his cestui que trust, purchases the trust estate at a Sheriff’s sale, acquires thereby no title, and the Sheriff’s deed to him can stand only as a security for the amount of his bid.
    'Vliere the cestui que trust incurs costs at law, in defending a tille purely equitable, against his trustee, and does not at once come into the proper forum for redress, he cannot in Equity j ccover his own costs at law i but he is entitled to a repayment of the amount of costs paid to the trustee.
    The allegations of the hill wore, that in the year 1816, the Plaintiff, Elizabeth, and the Defendant, Mary, being sisters and unmarried, purchased jointly a lot of ground In the town of Waynesborough, and contributed equally to the payment of the purchase money — that on account of the nonage of the Plaintiff, Elizabeth, the deed for the lot was made to the Defendant, Mary, who was of full age — that at the time of the purchase, the lot was unimproved, and the sisters being desirous of procuring a home for themselves, as well as for their parents who were old and infirm, agreed with their father, John Sas» ser, that if he would assist, in building a dwelling-house and otherwise improving the lot, he and his wife might jive jn ¡t their lives — that accordingly, the sisters procured at their joint expense the necessary materials, and a house and out-houses were erected by them, with the assistance of their father — that their father occupied the premises until his death — after which, their mother and themselves lived together in great harmony, until the marriage of the Defendant, Mary, with the Defendant, Cobb — that as soon as the Plaintiff, Elizabeth, heard of the treaty for that marriage, fearing some difficulty with the intended husband, she applied to her sister to execute a deed to her for her undivided moiety — that her sister then acknowledged the right of the Plaintiff, Elizabeth, in (he fullest manner, and stated to her, that the husband of the Defendant Could not deprive her of possession of the lot, and that, with this assurance, the Plaintiff being perfectly satisfied, no deed was executed by the Defendant, Mary — that soon after the intermarriage between the Defendants, the Defendant, Cobb, pretending to be ignorant of the agreement between his wife and the Plaintiff, Elizabeth, and between them and their parents, commenced an action of ejectment; and after the Plaintiffs had made every defence in their power, succeeded in obtaining a verdict and judgment, and was proceeding to execute a writ of possession. The death of the mother, and the intermarriage^of the Plaintiffs, pending the ejectment, were then averred. An injunction, and a decree for the repayment of the costs at law, were prayed.
    The Defendants denied every allegation in the bill, and as a distinct defence, the Defendant, Cobb, averred, that since the controversy respecting the lot had arisen, he had, at a Sheriff’s sale, purchased whatever title the Plaintiff, Keaton, had thereto, for $ 8 50, under a judgment and execution against him.
    
      Upon the coming in of the answers, the injunction which had been granted on the filing of the bill, was dissolved, and the Defendant, Cobb, put in possession.
    Many depositions were read at the hearing, by which every allegation of the Plaintiffs was fully supported.
    
      Badger & Mordecai, for the Plaintiffs.
    
      W. II. Haywood, for the Defendants.
   Ruffin, Judge.

— The agreement charged in the bill, for the joint purchase of the lot in dispute by the two sisters, and the payment of the purchase money and of the cost of putting the buildings on it by them equally, tho* denied in the answer, are facts proved beyond a doubt by the depositions. A conveyance to the Plaintiffs of one half must therefore be decreed.

If is however stated, in the answer, that Cobb has purchased at Sheriff’s sale the estate of Keaton, the husband ; and it is insisted, that precludes the Plaintiff from any relief. At most, that purchase would extend only to the life estate of the husband, and would not affect the fee of the wife. But even that effect cannot be allowed to it.— Here is a trustee, who denies the right of his cestui qm trust, and brings an ejectment to evict him ; and during the litigation and doubt cast on the title by the trustee himself, purchases under execution at a price enormously inadequate. To allow him to hold under such a title would be to encourage iniquity. The Sheriff’s deed can only stand as a security for what the Defendant advanced upon the execution.

It does not appear, whether the costs of the suit at law have been paid. It is to be presumed they have, as the injunction at first granted, was dissolved upon the corning in of the answer. The Plaintiffs now ask for an account of those costs, and to have refunded what they have paid to the Plaintiffs at Law, and to recover their own costs at Law. Certainly they must get back the costs of the ejectment, paid, to the Plaintiffs in it. No-< can-be plainer, than that'Cobb and wife ought not. to have used their legal title in that way, and they must ■. „ . be content to do it at their own expense ; for the Plam-j.jg-s never. denied their title to a moiety. In this particular case, the gross oppression, attempted by the Defendants, prompts us to go as far as we can to make them pay all the costs, wherever any can be found.— But we cannot yield to our feelings against principle. The title of the Plaintiffs was not legal, tho’ a clear one in this Court. If a party in that situation- chooses to contend at law, without resorting at once to the forum, in which alone he can properly be redressed, he must not expect to recover his costs, unless he succeeds at law. He chooses his game, and must put up with his luck. If it was wrong in the Defendant to bring ejectment, he must bear the burden of the costs incurred by him. And it being equally wrong in the Plaintiff to rely «pon a bad title, in a Court which could not investigate and sustain his real rights, he'must likewise be out of pocket the money he has spent in that fruitless defence.

It is much to he regretted, that ignorant and poor people should be’advised to such long, expensive and fruitless litigation $ for I dare say, they knew no better. But we cannot help them, without holding out an encouragement to others to .keep at law for the sake of it, instead of putting their cases at once upon the merits.

As to the rents and profits, it is to be remarked that by the contract, charged in the bill and proved by the witnesses, between John Sasser, the father, and his two daughters, the father and mother were to enjoy and occupy the premises during their lives as a home. This was in consideration of his erecting the houses ; which he did. It is not a question now, how this might he treated by the father’s creditors. But as between the parties, there can be no rent during the occupation by either of the parents. From that period however, each sister is liable for rent received by her, or for a reasonable rent during their own exclusive occupation rcspec-tively ; as to which an account must also be taken.

Per Curiam.

— Declare that the agreement between <he Plaintiff» Elizabeth, and the Defendant, Mary, for the joint purchase of the lot in dispute, and for the erection of houses on it at their joint expense, as charged in the bill, is fully proved. Declare further, that said Elizabeth paid one-half of the purchase money for said lot, and of the expenses of erecting buildings on it, and that she is entitled to one undivided half of the said lot: And decree, that the Defendants convey to the Plaintiff, Elizabeth, one undivided moiety of the said lot, with the appurtenances, in fee-simple. And let it be referred to the Clerk, to take an account of such monies as may have been paid by the Plaintiffs to the Defendants, as the costs of the suit at law, 'and lei him state any balance due thereon: and order, that the Defendants desist from proceeding on their execution for such balance, if any there »e : and order the Plaintiffs to be, entitled to recover back any such costs as the Defendants may have received, as aforesaid : And let it be referred to the Clerk to take an account of the rents, received by either of the parties, for the premises j and also of the reasonable annual va-he of the said lot, while in the occupation of cither of she parties, .since. <he death of Elizabeth flamer. tins  