
    SMITH v. JACKSON.
    Sale undue Deed of Trust; Receiver of Creditor; Interest in Purchase; Effect.
    An agreement by the receiver of a building association with his attorney and a third person to purchase property at its public sale by the trustee under a deed of trust securing a debt to the association is not such a violation of his duty as to impress a constructive trust in favor of a succeeding receiver upon the profits of a resale by the joint purchasers, where the sale was regularly and fairly conducted, with competitive bidding, and in good faith by the trustee who held the legal title, and the price obtained was not inadequate, considering the conditions, and the interests of the association were not prejudiced by the conduct of the receiver. (Citing Anderson v. White, 2 App. D. C. 408; Mutual F. Ins. Go. v. Barker, 17 App D. C. 205; and Chesapeake Beach R. Go. v. Washington, P. & C. R. Co. 23 App. D. C. 587.)
    No. 3194.
    Submitted March 5, 1919.
    Decided March 31, 1919.
    Hearing on an appeal from a decree in the Supreme Court of the District of Columbia, sustaining exceptions to a special master’s report.
    
      Reversed.
    
    The Court in the opinion stated the facts as follows:
    This is an appeal from a decree in the supreme court of the District sustaining exceptions to a special master’s report, and granting appellee, E. Hilton Jackson, receiver of the Eirst CoOperative Building Association of Georgetown, District of Columbia, judgment as at law against appellants, John Lewis Smith and Edwin L. Wilson. Tbe amount allowed represents tbe profit on tbe resale of a parcel of land sold at tbe request of tbe former receiver in this cause by tbe surviving trustee under a deed of trust securing a debt to tbe Eirst Co-Operative Building Association. Appellant Wilson was tbe purchaser at tbe trustee’s sale, tbe understanding being that appellant Smith, an attorney of tbe former receiver, and tbe receiver himself, should share in tbe venture.
    On June 6, 1908, stockholders of tbe Eirst Co-Operative Building Association of Georgetown, District of Columbia, filed a bill for dissolution and the appointment of a receiver. William E. Ambrose was appointed receiver and be duly qualified as such. On June 28, 1915, the resignation of Ambrose as receiver was accepted and tbe appellee appointed in bis stead. There was a reference to a master who, in bis report, filed in December of 1915, charged tbe accounts of tbe former receiver with tbe profit upon tbe resale of the property, from which the sum now in controversy was derived. Tbe receiver then made claim against appellants, and tbe matter, having been brought to the attention of tbe court, was referred to another special master, “with reservation, however, of tbe right of a review by tbe court of tbe said special master’s report, both as to findings of fact and conclusions of law.” Testimony was adduced and bearings bad before tbe special master who, on April 19, 1917, filed a report. His findings of fact, adopted by tbe court, are in substance as follows: Tbe Building Association was tbe bolder of certain debts due it from borrowing stockholders for money advanced. These debts were secured by deeds of trust upon real estate. It was tbe duty of Ambrose as receiver to take appropriate action looking to tbe conservation of tbe assets of tbe association. Efederick S. Schwab bad borrowed $2,700, secured by a deed of trust dated August 10, 1899, conveying tbe property in question to Jessie H. Wilson (since deceased)' and Raphael A. Casilear, as trustees. At the request of the receiver, the surviving trustee advertised the property for sale at public auction on Thursday, June 16, 1910. The sale was held on the day named, and Mr. Wilson, one of the appellants, bid $”50 (4-g- cents per square foot) for the property, and it was knocked down to him, but the property was withdrawn by the trustee upon the ground that the bid was inadequate. The sale, so far as appears, was properly advertised and regular in every respect. As the auctioneer, Ambrose, Smith, and Wilson, were leaving the premises, the auctioneer remarked that any property in the city that could be bought for 10 cents a foot, or under, was cheap property. Thereupon Smith remarked to Wilson that if he, Wilson, wanted to bid again, he, Smith, would be willing to take an interest in the property if Wilson should be the highest bidder, and Ambrose stated that “he would go in too.” The special master found that “Wilson was to use his own judgment in bidding on the property at the second sale, both as to bidding at all and as to the amount of his bid; and if he should happen to become the purchaser thereof, the three persons named should be jointly liable for the purchase price and any expenses incident to the purchase of the property; and they should, also, be jointly interested in the property itself.” On the next day, that is on June 11, 1910, the trustee again advertised the property for sale at public auction, the sale to be held on Tuesday, June 28, 1910. At the second sale “Wilson, in competition with one or more bidders, finally made a bid of $491 for the property, which was at the rate of 6) cents per square foot, and the property was knocked down to him at that figure. * * * It appears that Mr. Wilson made his bid for the property at this second sale in the exercise of his own individual judgment, and without any previous conference with either Messrs. Ambrose or Smith. * * * While Mr. Ambrose and Mr. Smith were both present at the second sale, there is no evidence that Mr. Smith participated therein in any way, either in the conduct of the sale, or in the acceptance of the bid of Mr. Wilson; nor is there any evidence that Mr. Ambrose gave any instructions or directions to the auctioneer or trustee in regard to tbe matter; the testimony of the auctioneer being to the effect that the ordinary course at such sales is for him to take the final instructions of the trustee, although, because of the lapse of time, he had no definite recollection as to the matter in this particular case.”
    After the second sale Smith and Wilson succeeded in interesting real estate agents in the property and, within a few days, obtained a purchaser for $1,400. It developed that there were unpaid taxes upon the property and that there had been a tax sale. The holder of the tax deed agreed to compromise for $550, or $59 more than Wilson’s bid. “Wilson agreed to advance his bid to the extent of the additional amount needed to free the property of taxes, etc., in order that good title thereto might be conveyed to Kite, free and clear of taxes, tax deeds, etc.” It resulted, therefore, that the Building Association received nothing from the transaction. The special master expressly found that there was no evidence of any improper influence at the sale to prevent competition or to close competitive bidding, or to bring about the sale of the property to Wilson in preference to anyone else. “On the contrary,” says the report, “it appears that the sale was fairly conducted; that there was competitive bidding,” and that the property finally was knocked down to the highest bidder.
    • Mr. Louis Addison Deni and Mr. John Lewis Smith, for the appellants, in their brief cited:
    
      Abraham v. Ordway, 158 U. S.; Albright v. Mercer, 15 Pa. Super. Ot.; Alger v. Anderson Circuit Ct. 92 Fed.; Allen v. Gillette, 127 U. S.; Allen v. Pullman Palace Car Co. 139 U. S.; Allison v. Connor, 36 Mich.; Alsop v. Biker, 155 U. S.; Anderson v. Butler, 31 S. O.; Anderson v. White, 2 App. D. C.; Angle v. Chicago, Si. P. M. & O. B. Co. 151 U. S.; Am. Caroline v. Wells, 2 Wall.; Ashurt’s Appeal, 60 Pa.; Badger v. Badger, 2 Wall.; Baker v. Cummings, 169 TJ. S.; Bank of Metropolis v. Gutischlick, 14 Pet.; Banque Pranco-Egyptienne v. Brown, 34 Fed.; Barber v. Bowen, Ml Minn.; Barton v. Long, 45 N. J. Eq.; Bay City Bridge Go. v. Van Ellen, 36 Mich.; Beauhien v. Beauhien, 23 How.; Bigelow v. Fischer, 102 Cal.; Blackman v. Shelby, 27 Tenn.; Blossom v. Milwaukee & C. R. Co. 3 Wall.; Boesch v. Graff, 133 H. S.; Boone v. Chiles, 10 Pet.; Bowman v. Wathen, 1 How.; Brown v. Buena Vista County, 95 H. S.; Brown v. Lake Superior Iron Co. 134 H. S.; Brunner v. Finley, ,187 Pa.; Burke v. Smith, 16 Wall.; Buzará v. Houston, 119 U. S.; Carroll v. Green, 92 U. S.; Carter v. Gibson, 61 Neb.; Cates v. Allen, 149 H. S.; Cherokee Nation v. Southern Kansas 11. Go. 135 H. S.; Clarke v. White, 12 Pet.; Cohen v. Gold Creek Min. Co. 95 Eed.; Commissioners v. Seymour, 71 Wis.; Continental L. Ins. Co. v. Rhoads, 119 U. S.; Cooley v. Cooley (Tenn.), 37 S. W.; Boone County y. Burlington & M. River R. Co. 139 H. S.; Creath v. Sims, 5 How.; Credit Co. y. Arkansas C. R. Co. 15 Fed.; Ex parte Crump, 84 Tenn.; Crutch-field y. Ilewitt, 2 App. D. 0.; Curley v. Tomlinson, 5 Daly; Curriden v. Middleton, 37 App. D. 0.; Curry v. 'McCauley, 11 Fed.; 16 Cyc.; 23 Cyc.; 27 Cyc.; 31 Cyc.; 34 Oye.; 39 Cyc.; District of Columbia y. R. R. Co. 8 App. D. C.; Davis y. Hawkins, 163 Pa.; Day v. Woodworth, 13 How.; De la Vergne v. Everson, 1 Paige; Demares v. Gilpin, 15 Colo.; De Walt v. 'Doran, 21 I). C.; Dexter v. Harris, 2 Mason; Dicey’s Parties; Douglass y. Blount (Tex.) 58 L.E.A.; Dugan v. O'Donnell, 68 Fed.; Elmendorf y. Taylor, 10 Wheat.; England v. Russell, 71 Fed.; Evers v. ’Waison, 156 H. S.; Ewing v. Parrish, 148 Alo. App.; Faniharn v. Brooks, 9 Pick.; Feirá v. Patrick, 145 TJ. S.; Flanders v. Tweed, 15 Wall.; Fletcher v. An» Arbor R. Co. 116 Fed.; Foster v. Mansfield, etc. R. Co. 146 TJ. S.; Fourth St. Nat. Bank v. Tardley, 165 TJ. S.; Fowler v. Fowler, 38 App. D. C.; Gaines v. Miller, 111 TJ. S.; George v. Ford, 36 App. D. C.; German Am. Sent. v. Kiefer, 43 Mich.; Gifford v. N. J. R. <£• Transp. Co. 10 N. J. Eq.; Glenn v. Sothorn, 4 App. D. C.; Goddenv. Kimmel, 99 TJ. S.; Goldstein v. White, 16 N. Y. Supp.; Graff am v. Burgess, 117 H. S.; Gray v. District of Columbia, 1 App. D. C.; Gray v. Robertsan, 174 til.; Greenwood & A. & W. R. Co. v. Strang, 77 Fed.; Guarantee Co. v. Mechanics Sav. Bank & T. Co. 80 Fed.; Haines v. Carpenter, 
      1 Woods; Hall v. Bussell, 3 Sawy.; Halstead v. Grinnan, 152 IT. S.; Hammond, v. Hopkins, 143 IT. S.; Hardt v. Ileidweyer, 152 IT. S.; Harr v. Pay son, 157 111.; Hart v. Hines, 10 App. D. C.; Harwood v. 0. & C. A. L. B. Go. 17 Wall.; Hayden v. Thompson, 71 Fed.; Hayes v. Ilall, 188 Mass.; Hayes v. Huddleson, 40 App. D. C.; Hayward v. Elliott Nat. Bank, 96 IT. S.; Hecht v. Slaney, 72 Gal.; Hendrickson v. Hendrickson, 42 N. J. Eq„; Hess y. Foss, 52 111.; Hipp v. Babin, 19 How.; Hitz v. Jenks, 10 App. D. C.; Hoey v. Ooleman, 46 Fed.; Hollins y. Briarfield Goal & I. Go. 150 H. S.; Ecc parte Hollis, 59 Cal.; Holton v. Wallace, 66 Fed.; Hotel Go. v. Electric Light Go. 17 App. E. C.; How y. Howe & O. B. B. Co. 154 Fed.; Iloyt v. Latham, 143 H. S.; Hubbard v.'Manhattan Trust Co. 87 Fed.; Hunt v.’Whitehead, 19 App. D. C.; Hutchinson y. Brown, 19 D. C.; Insurance Co. v. Barker, 17 App. H. C.; James v. James, 55 Ala.; Jessup v. Illinois G. B. Go. 43 Fed.; Johnson v. Ail. G. & W. I. Tr. Go. 156 H. S.; Johnson v. Sivankes (Wis.), 107 N. W.; Johnston y. Standard Min. Co. 148 H. S.; Jones v. Perkins, 76 Fed.; Jourolmon v. Ewing, 80 Fed.; Kieley v. McGlynn, 21 Wall.; KiTbourn v. Sunderland, 130 H. S.; Kimberly v. Arms, 129 IT. S.; Kneeland y. Am. Loan & T. Co. 136 H. S.; Knight v. Beese, 2 Dali.; Koenigsberger v. Bichmond Silver Min. Go. 158 IT. S.; 5 L.E.A. (N.S.) ; 58 L.E.A.; L. S. & M. 8. B. Go. v. Prentice, 147 H. S.; La Conte v. Irwin, 19 S. O.; Lakin y. Sierra Buttes G. M. Go. 25 Fed.; Lammer v. Stoddard-, 103 N. Y.; Lant y. Manley, 71 Fed.; Leavenworth Go. v. Ghicago B. I. & P. B: Go. 134 H. S.; Leavenworth Go. v. Ghicago B. I. & P. B. Co. 18 Fed:; Lee v. Howell, 69 N. C.; Levis v. Kengla, 8 App. D. C.; Lewis v. Gocks, 23 Wall.; Lewis v. Dennison, 2 App. D. O.; Dusk’s Appeal, 108 Pa. •,M.K.& T. B. Go. v. Elliott, 184 IT. S.; M. & M. B. Go', v. M. & St. P. B. Go. 6 Wall.; McGlane v. Shepherd, 21 N. J. Eq.; McGaughey y. Brown, 46 Ark.;« McGowan v. Elroy, 28 App. D. C.; McKnight v. Taylor, 1 How.; McMonigle v. McGlinn, 85 Fed.; McQuiddy y. V/are, 20 Wall.; McBae v. Bowers-Dredging Go. 86 Fed.; Mallow v, Hinde, 12 Wheat.; Mansfield v. Wallace, 217 111.; Marcotte v. Hartman, 46 Minn -; Marmion v. McClellan, 11 App. D. O, ,, 
      Marsh, v. Whitmore, 21 Wall.; Mattingly x. Northwestern V. II. Go. 158 U. S.; Maxwell v. Walsh, 117 Ga.; Meath v. Phillips Go. 108 XL S.; Melms y. Pabst Brewing Co. 93 Wis.; Merrill v. MonticeTlo, 66 Fed.; Merryman v. Blount (Ark.) 94 S. W.; Merton v. O'Brien, 117 Wis.; Metcalf v. Watertown, 128 XI. S.; Miles x. Vivian, 79 Fed.; Miller v. Knapp, 39 Fed.; Milwaukee & St. P. It. Go. x. Arms, 91 XJ. S.; Minor v. Mechanics Bank, 1 Pet.; Moody v. Flagg, 125 Fed.; Morrell v. Trotter, 15 Pliila.; Mulherm, Sons & Co. v. Hice & O'Connor, 106 Ga.; New York Guaranty & I. Go. v. Memphis Water Co. 107 XJ. S.; New York P. & Ó. B. Go. x. New York L. F. & W. E. Co. 58 Fed.; Naddo v. Bardon, 47 Fed., 51 Fed.; Nash v. Ingalls, 101 Fed.; Nash. & L. It. Corp. y. Boston & L. Corp. 61 Fed.; New Hampshire Sav. Bank v. Richey, 121 Fed.; Newman x. Newman, 60 W. Ya.; Norris x. Haggin, 136 XJ. S.; Norris v. Haggin, 28 Fed.; O’Bear Jewelry Co. v. Volfer, 106 Ala.; Pacific R. Co. v. Ketchum, 101 XJ. S.; Parker y. Ormsby, 141 XJ. S.; Pearsall v. Smith, 149 XJ. S.; Pechstein v. Smith, 14 App. D. 0.; Pelham v. Price, Hemp.; Penn Mut. L. Asso. v. Austin, 168 XJ. S.; Percy v. Goclcrill, 53 Fed.; Pew able Min. Go. v. Mason, 145 XJ. S.; Phoenix Mut. L. Ins. Go. v. Bailey, 13 Wall.; Philadelphia, W. & B. R. R. Co. y. Howard, 13 How.; Philp y. Nock, 17 Wall.; Pipe v. Smith, 5 Colo.; Planters’ Bank v. Farm, é M. Bank, 8 Gill. & J.; Prescott v. Pfeiffer, 57 Mich.; Provost v. Gratz, 6 Wheat.; Price v. Coleman, 21 Fed.; Price v. Winter, 15 Fla.; Quirk v. Liebert, 12 App. D. C.; Receiver Stale Bank v. First Nal. Bank, 34 N. J. Eq.; Redfield x. Bartels, 139 XJ. S.; Red-field v. Ystalyfera Iron Co. 110 XJ. S.; Reynes v. Dumont, 130 XI. S.; Rhino v. Fmery, 65 Fed.; Richards x. Mackall, 124 XJ. S.; Richter v. Jerome, 123 XJ. S.; Roberts x. Ely, 113 N. Y. App.; Root x. Wool/worlh, 150 XJ. S.; Ruby, The, 38 Fed.; Rugan x. Sabin, 53 Fed.; Pule 8, § 5; Russell x. Clark, 7 Cranch.; Ryan v. Williams, 100 Fed.; SaUade's Appeal, 36 Pa.; Sav. F. & XX'. R. Co. x. Ilarrigan, 80 Ga.; Scheftel x. Hays. 58 Fed.; Schroeder x. Young, 161 XJ. S.; Scott v. Armstrong, 146 XJ. S.; Scott x. Donald, 165 XJ. S.; Scott x. Neely, 
      140 U. S.; Sec. Inv. Co. v. Garrett, 3 App. D. 0.; Sec. Sav. & L. Asso. v. Buchanan, 66 Fed.; Sessions y. .Johnson, 95 IJ. S.; Shea v. Dublin, 3 MacArth.; Sheehy v. Eastern Imp. & Mfg. Co. 44 App. D. 0.; Shields v. Barrow, 18 How.; Shields v. McCandlish, 73 Fed.; Sigua Iron Co. v. Clark, 77 Fed.; Simmons Creek Coal Co. v. Doran, 142 U. S.; Sis v. Boarman, 11 App. D. C.; Smith v. Olcott, 19 App. I). 0.; Smith v. Bines, 2 Sumn.; Smith v. Woolf oik, 115 IJ. S.; Southern P. B. Co. v. United States, 200 U. S.; Speidel v. Henrici, 120 IT. S.; Stark-weather v. Jenner, 27 App. D. 0.; Stearns v. Page, 7 How.; Steinbeck v. Bon Homme Min. Co. 152 Fed.; Stewart v. Son~ neborn, 98 IJ. S.; Such v. Bank of New York, 127 Fed.; Sullivan v. Portland & K. B. Co. 94 IJ. S.; Swift v. Smith, 79 Fed.; Symmes v. Union Trust Co. 60 Fed.; Talmadge v. Bus-sell, 76 N. Y. Supp.; Taylor v. Holmes, 14 Fed.; Taylor v. S. & N. A. B. Co. 13 F'ed.; Teall v. Schroeder, 158 U. S.; Teall v. Slaven, 40 Fed.; Thompson v. German American Ins. Co. 77 Fed.; Townsend v. Vanderwerker, 160 TJ. S.; Treat v. Jemison, 20 Wall.; Trice v. Comstock, 121 Fed.; Tulloch v. Mulvane,' 184 U. S.; Tiuin Lick Oil Co. y. Marbury, 91 H. S.; Tyler v. Moses, 13 App. D. C.; Tyler v. Savage, 143 TJ. S.; United, States y. Bitter Boot Dev. Co. 200 H. S.; United Stales v. Leffler, 11 Pet.; United States v. Nuestra Señora, 17 Wall.; United Stales v. Sanborn, 135 H. S.; United States y. State Nat. Bank, 96 TJ. S.; United States Tnist Co. y. David, 36 D. C. App.; Upton y. Tribilcock, 91 IJ. S.; Yan Auw v. Chicago Toy & F. G. Co. 70 Fed.; Vigoreaux v. Murphy, 54 Cal.; Wagner y. Baird, 7 How.; Wagner y. Swift’s I. & S. Works (Ky.) 26 S. W.; Walker v. Broiun, 58 Fed.; Walker y. Powers, 104 IJ. S.; Ware v. Galveston City Co. Ill TJ. S.; Ware v. Galveston City, 146 U. S.; Warner y. Godfrey, 186 TJ. S.; Washington A. & G. B. Co. y. Washington (D. C.) 10 Wall.; Watson v. United States Sugar Befinery, 68 Fed.; Watts’ Appeal, 78 Pa.; Weaver y. Leiman, 52 Md.; Wetzel v. Minnesota B. Transp. Co. 65 Fed.; White y. Boyce, 21 Fed.; Whitehead v. Shattuck, 138 TJ. S.; Wilder v. New Orleans, 87 Fed.;"Willard y. Wood, 164 TJ. S.; Williams v. Jackson, 107 U. S.; Wilmerding y. Boss, 
      33 Conn.; Wollensak v. Beiher, 115 U, S.; Wood v. Carpenter, 101 IT. S.; Wood v. Neiu York & N. E. B. Co. 61 Fed.; Wylie v. Coxe, 15 How.; Yeoman v. Townshend, 74 Hnn; Youtsey x. Ilojfman, 108 Fed.; Yuster v. Keefe (Ind.), 90 N. E.
    
      Mr. Boberb H. Turner, Mr. W. W. Millan, and Mr. B. E. L. Smith, for the appellee:
    The Question of Jurisdiction.
    “If a defendant in a suit in equity answers and submits to the jurisdiction of the court, it is too late for him to object that the plaintiff has a plain and adequate remedy at law. This objection should be taken at the earliest opportunity. The above rule must be taken with the qualification that it is competent for the court to grant the relief sought and that it has jurisdiction of the subject-matter.” Daniel, Ch. Pr. 4th Aia. ed. p. 555; Beynes v. Dumont, 130 II. S. 354; Kilbourn v. Sunderland, 130 II. S. 505; Brown v. Lake Superior Iron Co. 334 II. S. 530; Tyler v. Savage, 143 II. S. 79; Insley v. United Stales, 150 IT. S. 512; Perigo v. Dodge, 303 II. S. 160; Southern P. B. Co. v. United Stales, 200 II. S. 341; Tyler v. Moses, 13 App. D. C. 428; United Slates Trust Co. v. Blundon, 42 App. D. C. 500.
    It being established by the foregoing authorities and the undisputed facts that the court was justified in overruling the objection to the jurisdiction because it came too late, nothing can be found in the circumstances of this case requiring tire court to refuse to entertain jurisdiction. St. Louis & S. F. B. Co. v. McBride, 141II. S. 127; Western Life Indemnity Co. v. Buff, 235 II. S. 261; Pease v. Bathbun-J ones Eng. Co. 243 II. S. 273; Lawson v. Barber .& Co. 189 Fed. 165; Hawkeye Gold Dredging Co. v. State Bank, 357 Fed. 253; Insurance Co. x. Bank, 104 H. S. 54; Union Stock Yard Bank v. Gillespie, 137 U. S. 431.
    Even if the objection to the jurisdiction had been seasonably made, it is without merit. Bay State Gas Co. v. Bogers, 147 Fed. 557.
    
      “The subject-matter, it is true, is only gains and profits arising out of á trust as courts of equity define trusts, express or constructive, and therefore, although it sometimes happens that there is a concurrent remedy at law where a trust has worked itself into cash, yet in the Federal courts, the remedy in equity always remains.” Harrigan v. Gilchrist, 121 "Wis. 127; Johnson y. Little, 141 Ala. 382; Jaclcsonv. TJpdegraffe, 1 Eob. (Va.) 120; Loving v. Salisbury Mills, 125 Mass. 138; Smith v. Dallas Compress Go. 195 Ala. 534; Jones v. Abraham, 75 Va. 466; Woodell v. Bruff, 25 W. Va. 465 ; Enslen v. Allen, 160 Ala. 529; Barlcsdale v. Finney, 14 Gratt. 338; Pearce v. Dill. 147 Ind. 136; Lee v. Lee,^67 Ala. 406.
    The MeritsAf the Oase.
    The liability of the appellants arises out of the fact that they assisted the former receiver in doing a thing that he could not lawfully do. “A party who concerts or unites with a fiduciary in any act, contrary to the duty of such fiduciary, becomes particeps criminis and will be held liable accordingly.” Wood-ell v. Bruff, 25 W. Va. 465.
    The naked -proposition in this case is that a receiver, in the name of another, purchased property for himself when he was having it sold for the real owner, his cestui que trust. His duty as a receiver was to make it bring as much as possible. His interest as a purchaser was to buy it as low as possible.
    The law will not allow him to put himself in a position where his duty and his interest conflict. Hayes v. Hall, 188 Mass. 510; Enslen v. Allen, 160 Ala. 529; Johnston v. Little, 141 Ala. 382; Harriganv. Gilchrist, 121 Wis. 127.
    The Eemedy at Law.
    In Gurriden v. Middleton, 37 App. D. O. 568, plaintiff sought nothing but a money judgment for damages resulting from having been deceived. It had no relation to the misuse of trust property or funds. George v. Ford, 36 App. D. O. 315, was to the same purport.
    
      
      Tyler v. Moses, 13 App. D. 0. 428, was a case where fraud had been perpetrated upon the plaintiffs in inducing them to make cercain investments. It had no relation *co a fiduciary of the court juggling with trust property. Furthermore, even in that case, equitable jurisdiction was sustained because the objection came too late.
    
      Pechstein v. Smith, 14 App. D. C. 27, is a case where the plaintiff; asked for the cancelation of certain bonds which he said were null and void, false and forged, and the court said if they were he could successfully defend against them at law.
    Laches and the Statute of Limitations.
    
      Lewis v. Dennison, 2 App. D. C. 387, is a case where the Statute of Limitations was invoked, but the claim was specifically denied with the announcement that fraudulent concealment of a cause of action avoids the operation of the statute not only in equity, but at law as well.
    
      Fowler v. Fowler, 38 App. D. C. 476, is a case where one of thirteen children filed a bill against his mother as administratrix of his father’s estate thirty years after he became of age, and where it was doubtful, on the evidence, whether the mother had been guilty of any fraudulent misrepresentations. But even there this court announced the doctrine that mere delay in bringing a suit in equity for discovery and an accounting is not in itself sufficient to show laches if a satisfactory and convincing reason for the delay is shown.
    
      United States Trust Go. v. David, 36 App. D. C. 519, is a case where the receiver of an insolvent corporation presented to a trust company a copy of the order of his appointment, bearing the title and number of the case in which he was appointed. It was held that this gave the company constructive notice of the contents of the bill in said cause.
    
      Levis v. Kengla, 8 App. D. 0. 230, is a case where a bill was filed to set aside a foreclosure fifteen years after it was made. It -was held that the plaintiff had failed to prove an alleged oral agreement upon which he relied; that if proven it was within the Statute of Frauds, and, finally, that if he had any rights they were barred by laches, because» “for fifteen years, without any adequate explanation, he slept upon his alleged rights.”
   Mr. Justice Robb

delivered the opinion of the Court:

The learned trial justice was of the view that the duty of Ambrose with respect to the property was such “that his conduct was a palpable violation of his duty;” that the purchase and resale was a joint enterprise, conducted with full knowledge of the surrounding circumstances, and hence that the profits realized were impressed with a constructive trust in favor of the present receiver.

In Anderson v. White, 2 App. D. C. 408, and Mutual F. Ins. Co. v. Barker, 17 App. D. C. 205, this court pointed out the difference between the rule applicable to cases of sales by trustees appointed by the court, “such as trusts to sell for partition or distribution and the like,” and “sales made under the ordinary trust to secure loans, and enforceable upon stipulated terms and notices.” In the former, the interests of the beneficiaries are identical, and the trustee is charged with the absolute duty so as to arrange and conduct the sale as to secure the highest possible price for the property; in the latter, it is the duty of the trustee, upon demand of the security holder after default, to conduct the sale “in the manner and upon the notice prescribed in the trust.” The title under these deeds of trust is not in the creditor, but in the trustees, whose duties are set forth in the deed and who really act independently of either party. Chesapeake Beach R. Co. v. Washington, P. & C. R. Co. 23 App. D. C. 587, 599. Their sole duty is to conduct the sale in accordance with their grant of power, extinguish the debt if possible, and hold any balance for the grantor. While, therefore, a mortgagee or a trustee in a mortgage or deed of trust may not become the purchaser at his own sale, unless permitted by the terms of the instnuiient or authorized by statute, a creditor secured by such mortgage or trust may do so. Not holding the legal title, he is not a trustee for the debtor in such sense as to preclude him from buying at the sale. This was expressly ruled in Smith v. Black, 115 U. S. 308, 29 L. ed. 398, 6 Sup. Ct. Rep. 50. That cabe arose in the District of Columbia, and the court said that “the creditor for the satisfaction of whose debt the sale is made' has a right to compete fairly at the sale, and may become the purchaser.” In Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 590, 23 L. ed. 328, 330, 3 Mor. Min. Rep. 688, the court said: “The defendant was not here both seller and buyer. A trustee was interposed who made the sale, and who had the usual powers necessary to see that the sale was fairly conducted, and who in this respect was the trustee of the corporation [the grantor in the deed of trust], and must be supposed to have been selected by it for the exercise of this power.” See D. C. Code, § 544 [31 Stat. at L. 1214, chap. 854.]

Coming now to the facts of this case, we are unable to agree with the learned trial justice that the real owner of this property was the association, represented by the receiver. The legal title was in the surviving trustee, the equitable title in the debtor. While it was the duty of the receiver to notify the trustee of the debtor’s default and request a sale of the property, his positive duty ended there. Responsibility for the conduct of the sale rested upon the trustee. This must be so, else the creditor secured by the deed of trust, in this instance the Building Association, would not be permitted to bid at the sale, for obviously one may not be both seller and buyer. Although the receiver was chargeable with no further positive duty, nevertheless his acts should receive the close scrutiny of the court. Evidence warranting the inference that the conduct of the receiver, chargeable also to the purchaser, was to the prejudice of the creditor would warrant the setting aside of the sale if the title had not passed to an innocent purchaser. Does the evidence before us warrant such an inference ? That the sale was regularly and fairly conducted is conceded. “No fraud in fact is alleged in the bill or shown in the evidence, no effort to keep bidders away from tbe sale, or to have a surreptitious sale, no want of the usual notice of sale.” Smith v. Black, 115 U. S. 308, 315, 29 L. ed. 398, 401, 6 Sup. Ct. Rep. 50. On the contrary, this was a second sale, and it affirmatively appears that there was competitive bidding. There is no evidence challenging the good faith or judgment of the trustee. The special master found that the price for which the property sold was not “necessarily inadequate in a legal sense.” It is conceded that the price obtained at- the resale was a good one. Having in mind conditions that obtained, including the outstanding tax title, we certainly could not find that the price realized at the trustee’s sale was so grossly inadequate as to shock the conscience of the court and furnish a basis for the setting aside of the sale. Indeed, we do not understand counsel for the appellee to contend that there is any basis for the setting aside of this sale; but, whether or not we correctly apprehend counsel’s position, we are convinced that there is no ground for such a contention. In other words, on the admitted facts w.e are satisfied that the sale was regularly and fairly conducted and that the conduct of Ambrose in respect of the bid was in no way prejudicial to the creditor, the Building Association. In the absence of any evidence from which we might find that the interests of the association were prejudiced by the conduct of the receiver and appellants, no theory is apparent upon which a judgment against them could be based.

It follows that the decree must be reversed, with costs, and it is so ordered. Reversed.

A motion for rehearing was denied April 17, 1919.  