
    *Edmunds v. Venable et als.
    
    January Term, 1855,
    Richmond.
    o. Lunatic — Purchaser of Bonds of Estate — Accountability. — A person, receiving' from the committee of a lunatic bonds, showing on,their face that they belong to the estate of the lunatic, is bound to account in equity to the estate of the lunatic for what he has received for them, although he may have paid for them their full value, and knew nothing of the state of the committee’s accounts.
    2. Same — Same — Subrogation — Sureties. — Sureties, who have been decreed to answer for the default of such committee, are entitled to be subrogated to the rights of the lunatic against such a purchaser of the bonds of his estate.
    3. Same — Dealings with Committee of — Regularity of Appointment. — Persons dealings with the committee of a lunatic or other fiduciaries, knowing them to be acting as such, cannot defend themselves from the consequences of such dealings, by impeaching the regularity of the appointment of such fiduciaries.
    4. Same— Decree — Evidence — Collateral Attack. — A decree in a suit in equity by a committee of a lunatic against the sureties of a former committee, is evidence in a suit by the sureties who have satisfied the decree, against a purchaser from the first committee of bonds belonging to the estate of the lunatic, to show that they, have been required to answer for the default of the first committee, and in such collateral proceeding the propriety of the decree cannot be inquired into.
    5. Same — Appointment of Committee — Regularity of.— Where there has been an appointment of a committee of a lunatic by a court having jurisdiction of the subject, the regularity of the appointment cannot be inquired into by any other court, (except by appeal).
    On the 18th December, 1797, an order was made by the County Court of Prince Edward, reciting, that 1 ‘it appeared to the court” that Josiah Chambers was not of sufficient sanity to take care of his estate, and appointing a committee to preserve and manage it. On the 26th March, 1825, a decree was made by the Superior Court of Chancery, held at Richmond, whereby Edward Redford (who was then the committee of Josiah Chambers, though it does not appear when or how he was appointed) was permitted to resign, and Col. James Madison of Farmville, was appointed corn-mittee *for the said Chambers, to
    perform the order made in that cause on the 22d February, 1821, in place of Thomas A. Morton, and the said Madison was required to give bond and security in the County Court of Prince Edward. It did not appear what was the order of February 22d, 1821.
    On the 20th June, 1825, Madison gave bond, in the County Court of Prince Edward in the penalty of $40,000, with Thomas A. Morton and Charles Venable his sureties, conditioned for the faithful performance of the trust reposed in him, for taking care of the estate of Chambers, and rendering an account when required.
    An act of Assembly was passed March 9th, 1836, authorizing the sale of certain land in Prince Edward county belonging to Chambers, and appointing eight commissioners, who, or a majority of them, were to sell the land on a credit, taking bonds with security for the purchase money. The third section of the act, directs, that the committee of the lunatic, receiving the proceeds of the sale, shall be accountable to the County Court of Prince Edward for them, and authorizes the county court, in its discretion, to take additional security from the committee in that behalf.
    The land was sold by some of the commissioners named in the act, and bonds were taken from the purchasers, payable to the acting commissioners, and were handed over by the commissioners to Madison, the committee. Afterwards, on the 21st August, 1837, Madison was ruled by the County Court of Prince Edward to give further security, and thereupon he with his sureties, Robert Venable, James M. Jackson, Joseph E. Venable, Francis A. Martin, Abraham %. Venable and Henrv Thweat, gave bond in the penalty of $30,000, with condition similar to the condition of the bond of June, 1825, save only that it purported to be taken as additional and supplemental security.
    In the year 1838, the appellant John F. Edmunds sold to Madison, then doing business as a merchant, his crop of tobacco, and received, in part payment therefor, *two of the bonds which Madison held proceeding from the sale of Chambers’ land. One bond was for $642 65, the other for $341 28. They were both due, were received as cash, and were afterwards collected by an agent of Edmunds. ■
    On the 18th November, 1839, Madison resigned, his office of committee, and Wm. Elliot was appointed by the County Court of Prince Edward, and duly qualified as committee in his stead. Afterwards Elliot, as committee of Chambers, in a suit in chancery, against Madison’s sureties, obtained a decree for about twenty-five thousand dollars, for the default of Madison. Of the amount of this decree, about $10,000 was paid from the estate of Madison, and $2,000 was made by execution against James M. Jackson, one of the sureties in the last bond of Madison. The balance, or nearly all of it, was paid by four other sureties, or their representatives, viz: Thomas A. Morton and Charles Venable, the sureties in the first bond, and Joseph 1$. Venable and Robert Venable, two of the sureties in the last bond, each giving their bonds for $3000, secured to the satisfaction of the new committee Elliot.
    These four sureties then filed their bill in the Superior Court of Prince Edward count3T, against Edmunds, Madison’s adm’r J. M. Jackson, Morton’s adm’r A. Z. Venable, Thweat, and Elliot, the committee, setting forth the default of Madison, his death, insolvency, the decree against his sureties, the payment of it in part by the complainants; and complaining, that Ed-munds had received the two bonds aforesaid, belonging to the estate of Chambers, knowing that they belonged to Chambers, and that Madison was in failing circumstances ; and claiming, that Edmund should be regarded as a trustee for the estate of Chambers to the amount received on said bonds, that he was bound to account therefor to the committee Elliot, and that the plaintiff should be substituted to his rights.
    Edmunds answered, denying that Chambers had ever *been legally found to be a person of unsound mind, or that Madison or Elliot had been legally appointed his committees, or that the sureties of Madison were bound for his alleged default, or that Chambers’ land had ever been legally sold, or that the complainants had ever been compelled to pay for the default of Madison, or that Elliot had any authority to sue, or that there was any fraud on his part, or that he had any knowledge of Madison’s failing circumstances. The answer averred, that the sureties in Madison’s second bond ought not to be heard, to complain of Madison’s abuse of his trust in the appropriation of the trust funds to his own purposes, as they were his near relations and friends, knew his embarrassments, procured his continuance in office, and became his sureties, with a view of enabling him to get possession of the lunatic’s property to aid him in his business, and thus prop his credit.
    There was some evidence to shew, that the sureties in Madison’s second bond knew his embarrassed circumstances, and desired, by becoming his sureties, to prop his credit.
    Upon the hearing, the Circuit Court decreed, that Edmunds should pay the amount collected by him from the said bonds to Elliot, the committee, and that Elliot should apply the said amount to the credit of the obligations of the complainants, in equal portions.
    Erom this decree, Edmunds appealed to this court.
    G. N. Johnson, for the appellant:
    Chambers was never regularly found to be a lunatic; therefore, the appointment of his committee was irregular, and the bond of his committee was void.
    The law, under which the order of 1797 was made, requires that the lunatic shall be examined by three justices. 1 Shep. Stat. at Earge, ch. 62, § 3. It does not appear that any such examination was made. This examination takes the place of the inquisition of a jury, required in England, and is the foundation of all proceedings in regard to a lunatic. It is an indispensable *pre-requisite. Sheppard on Lunacy, ch. 4, p. 74; ch. 5, pp. 130, 148; 1 Rev. Code, 1819, p. 412, ch. 109, ¿ 3.
    If the finding of lunacy was irregular and unlawful, all subsequent proceedings are void.
    The appointment of Madison subsequently was irregular, and his bond was of no effect.
    Suppose the Chancery Court at Richmond intended to do what the County Court might have done. The County Court had taken jurisdiction of the subject, and its jurisdiction became exclusive. Insanity is a civil death. In case of natural death, when one court has appointed a representative, who dies, no other court has jurisdiction . to appoint a successor. Ex parte Lyons, 2 Leigh, 761. The administration of an estate is an entire thing ; all accounts are to be returned to one office. There should be one place where it can be ascertained who is the representative of an estate. All these reasons apply to the case of a lunatic. The Court of Chancery had no jurisdiction, and its appointment was void. Ex parte Barker, 2 Leigh, 719.
    The proceedings in the Chancery Court, although they concerned Chambers chiefly, were entirely ex parte as to him. It does not clearly appear in the order of the Chancery Court what were the terms of Madison’s appointment. He could not have been the committee, because the County Court had exclusively the power of appointment. He was, then, a mere commissioner of the court, a receiver, and not authorized to sue or be sued. Bolling v. Turner, 6 Rand. 584.
    The order of the Chancery Court directed Madison to give security in the County Court. That security should have been taken in the name of the lunatic himself. By what authority could the Court of Chancery direct the County Court to take this bond? There was no appeal from the County Court; and it devolved upon the court making the order-to take the security. The Chancery Court acted, and could only act, through its general conservative power to protect the estate, and not *under any statute. Madison was an officer of that court, yet he was required by the County Court to give additional security. If the first bond was void, so was the second. The County Court could require him to do nothing. Commonwealth v. Jackson’s ex’r, 1 Leigh, 485; Branch v. Commonwealth, 2 Call, 510; Jones v. Hob-son, 2 Rand. 490.
    The last committee, Elliot, not having been lawfully appointed, had no right to sue. If the original finding of lunacy is irregular and void, all subsequent appointments of committees are void. Elliot was appointed in the place of Madison, who, as commissioner of the Chancery Court, had no right to sue. It is only by force of the statute that a committee can sue.
    The condition of the bond was not intended to recover the proceeds of the sale of the real estate. The extent of the obligation was to protect the annual profits of the estate merely, and no subsequent legislation could impose any new burdens on the sureties.
    How would it be in the case of executors?
    Jones v. Hobson, above cited. And there is nothing in the second bond to shew that the sureties intended to become responsible.for the proceeds, of the sale of the real estate.
    The bonds were improperly placed in Madison’s hands, he not being a committee; and his sureties are, therefore, not responsible. The sale was not legal, as a majority of the commissioners did not act. And Madison, if a legal committee, was not entitled to receive anything under that sale. Jesse v. Preston, 5 Grat. 120.
    The decree of the Circuit Court, in the suit brought by Elliot against Madison’s sureties, is evidence of nothing in this cause, except that there was such a decree. It is no evidence of the facts upon which it was founded against Edmunds, who was no party to the proceeding. 1 Starkie Evid. 212 (marginal page) ; Eqvell v. Arnold, 2 Munf. 167; Mason’s devisees v. Peters’ adm’ors, 1 Munf. 437.
    *The decree of Elliot against Madison’s sureties does not establish against Edmunds the grounds upon which it was founded, as that Chambers was properly found a lunatic, Madison properly appointed a committee, &c.
    • Easily, there is no fraud proved against Edmunds. He knew nothing of Madison’s condition; and he paid full value for the bonds he received.
    Bouldin, for the appellees:
    Most of the questions discussed by the counsel for the appellant, are not subject to re-examination by this court in this case. Most of the orders of court objected to by him are decrees of competent courts, having jurisdiction of the subject, which are un-reversed. A court of competent jurisdiction has decided, that the sureties of Madison shall pay to the committee of the lunatic, a certain amount for the default of Madison. They have paid it, or secured it to be paid. And this proceeding is by these sureties to recover of Edmunds certain property of the estate of the lunatic improperly received by him from Madison.
    In this case, it is of no importance, whether any of the committees were regularly appointed or not. They assumed to act as such, confessedly received property belonging to the lunatic as such, and must be held responsible upon principles similar to those which apply to an executor de son tort.
    • It is not denied by the appellant, that he received property belonging to the lunatic, from a person who assumed to act as his committee.
    It is not competent for this court, in this proceeding, to enquire into the regularity of the proceedings of the County Court in the appointment of the first committee. That was the action of a court having jurisdiction of the subject, and its decision conferred an authority, which is valid until revoked by that court, or set aside upon appeal to a higher court. Eisher v. Bassett, 9 Eeigh, 119; Burnley’s Representatives v. Duke et als., 2 Rob. 102-129.
    *The order of the chancery court was also clearly within the jurisdiction of that court. Bolling v. Turner, 6 Randolph, S84; Dabney v. Catlett, 12 Eeigh, 383.
    The bond of Madison was valid. Even if he was not bound to give security in the county court, yet he did so. It is a matter in pais, which the chancellor may order to be done an3rwhere. The order operated upon Madison, as an officer of the chancery court, and not upon the county court.
    The sureties of Madison were bound for the proceeds of the sale of the real estate. The condition of the bond was to take care of the whole estate; and while the committee had no power to sell the real estate, yet when that real estate had been legally sold, the committee and his sureties were bound to the care of the proceeds. Even if this were not so, the new bond was taken after the sale, in pursuance of the act of Assembly.
    There can be no objection to Elliot’s appointment. He was regularly appointed by the County Court. Tate’s Digest, 496, § 22.
    Now as to the responsibilitjr of persons dealing with a fiduciary, the law is well settled. Eisher v. Bassett, 9 Eeigh, 119; Jackson v. Updegraff, 1 Rob. 120.
    Edmunds, as a question of fact, is guiltless here of fraudulent intent. He expected in all good faith that Madison would account for the proceeds of the funds to the estate of the lunatic.
    The record of the suit of Elliot against Madison’s sureties, is evidence of the facts upon which the decree was based; not that the facts were true, but that such facts were the grounds upon which the decree was rendered.
    The bonds were received by Madison as belonging to the estate of Chambers, were transferred by him as such, and so received by Edmunds.
    Suppose that the decree against Madison’s sureties was erroneous, and that the money was improperly paid *by them under that decree, 3Tet there can be no question of the right of Elliot, the committee, to pursue the estate of the lunatic in the hands of the alienee or transferee, Edmunds. Pickard v. Woods, 8 Grat. 140.
    Johnson, in reply:
    All questions affecting the liability of Madison’s sureties may be inquired into in this proceeding, because Elliot was no party to the proceedings against the sureties, and is not concluded by them in any manner. A judgment is not evidence of its antecedents against strangers. Edmunds, must be held chargeable, if at all, on the .ground of fraud, actual or constructive. There is no pretence of actual fraud. If he has been guilty of constructive fraud, he is not in a court of equity to be punished beyond the extent of the injury he has inflicted. Here full value was given for the bonds. Edmunds had no knowledge of the state of Madison’s account. He might have been in advance to the estate. This transaction, at all events, was merely a collection of the bonds by Madison.
    In Eisher v. Bassett, Fisher knew of the administrator’s embarrassments, and bought the property at a sacrifice. In Pinckard v. Woods, bonds belonging to the estate were sold at a discount, and the purchaser knew that funds were not wanted for the purposes of the estate, but for the private use of the executor.
    The use of trust funds by a fiduciary, to pay his own debts, is certainly an improper application of them by the fiduciary, but it is not necessarily so in the purchaser, if he pays full value for them. Eaidley v. Merrifield, 7 Eeigh, 347.
    Madison was not enabled in any manner by this transaction to defraud the estate. If he had collected the money payable on the bonds, he might have gone into the market and bought tobacco.
    
      
      For monographic note on Fellow Servants, see end of case.
    
    
      
      See monographic note on “Insanity” appended to Boswell v. Com., 20 Gratt. 860, and foot-note to Barksdale v. Finney, 14 Gratt. 338.
    
    
      
      See foot-note to Buchanan v. Clark, 10 Gratt. 164, and monographic note on “Subrogation.”
    
   TYLER, J.

In the year 1838, James Madison, as the committee of Josiah Chambers, a lunatic, transferred *or assigned to the appellant Edmunds certain bonds bearing evidence on their face that they were the propert3r of the lunatic; and William Elliot having succeeded Madison as committee of Chambers, instituted a suit for the settlement of Madison’s accounts as committee, in which suit he obtained a decree for upwards of twenty-five thousand dollars, some three thousand dollars of which recovery was paid by the appellees, as sureties of Madison in his official bond as committee. The appel-lees then instituted this suit. And in their bill they charge substantially, that Madison, while acting as committee of Chambers, misapplied and converted to his own use bonds belonging to the estate of Chambers ; and that on the 8th of September, 1838, he paid over and delivered to the appellant Edmunds, on account of a debt due to him from Madison individually (in part purchase of his crop of tobacco) two bonds belonging to the estate of Chambers, amounting to §983 93, as of the 22d of April, 1838. This allegation in the bill is not denied in the answer, but is in substance admitted. For although the respondent denies all intention to aid in a breach of trust, he nevertheless admits facts, from which the law infers, that he was a party to the breach of trust. He admits a sale of his crop of tobacco to Madison, and the receipt of these bonds in part payment; which is substantially an admission that the bonds were received in payment of Madison’s individual indebtedness to him. The general, rule of law applicable to, such transactions is: That when bonds in the hands of a fiduciary are transferred or assigned, and the consideration of the transfer or assignment is a personal debt due from the fiduciary, and the assignee takes with notice of the trust, that the law holds him a party to the breach of trust; and subjects the property to the trust in the hands of the alienee equally as it would have been in the hands of the fiduciary. See Watkins v. Cheek, 2 Sim. & Stu. 204-5; 8 Vesey, 104. This is the general rule of law, and there is not a fact or circumstance proved in this cause to except it from its influence.

*If then these bonds, or the proceeds in the hands of Edmunds, are equally subject to the trust as they would have been in the hands of Madison, the question arises, whether Madison in a suit against him would have been permitted to set up the defence which has been insisted on by his alienee, the appellant. If Madison could not make the defence, he could not make it. The defence is, that Madison’s appointment as committee was void; and secondly, that these bonds were given for the purchase of land of the lunatic, the sale whereof was so irregular, as to make it the duty of a court to annul it at the instance of the lunatic, should he be restored to sanity. The manifest answer to these objections is, that Madison, having acted as committee of Chambers ; having represented himself as committee; having received these bonds from the commissioners as the property of the lunatic; having transferred them in payment of his own debts, with the evidence on their face that they were the property of Chambers, is estopped on the grounds of the public policy and good .faith from repudiating his own representations; and for another reason, that as to the regularity or irregularity of the sale, that is a matter in which he is not at all interested. Chambers’ committee (Elliot) has recovered the proceeds of the sale of the land; and if the sale is ever rescinded Chambers’ estate would have to account for the purchase money as a condition precedent to its rescission. The evidence in the cause is, that the appellees have paid, or secured to be paid, to Chambers’ committee, more than the amount of these bonds under a decree of the court of competent jurisdiction, which remains unreversed, and they are entitled to stand in the shoes of Elliott as against the appellant. I am, therefore, for affirming the decree, with costs.

CLOPTON, J.

The appellees, by their bill in the Circuit Superior Court of Prince Edward, make the following case. That the appellee Morton, and Chas. Venable, the testator of the appellees Henry J. Venable *and John W. Gilliam, executed to the justices of Prince Edward county, 'on the 20th of June, 1825, a bond as sureties of James Madison, who had been appointed committee of Josiah Chambers, a person of unsound mind, for the faithful discharge of his duties; that on the 21st of August, 1837, the appellee Joseph E. Venable, and his testator Robert Venable, with four others who are not parties, executed a like bond as sureties for Madison, as committee as aforesaid; that in the year 1836 or ’7, certain commissioners, or a portion of them, acting under an act of the General Assemblj', passed March 9th, 1836, sold a portion of the lands of the lunatic Chambers, adjoining the town of Earmville, on terms of credit, taking of the purchasers bonds payable to themselves as “commissioners on the part of Josiah Chambers;” that these bonds, to the amount of about $16,000, were by them delivered in April, 1837, to Madison, the committee, as part'of the estate of the said Chambers; that two of the bonds so delivered to Madison were by him, on the 8th September, 1838, paid over and deljvered to the appellant Edmunds on account of a debt due him from Madison, individually, for the purchase of his tobacco crop; that the bonds amounted on the 22d of April, 1838, to the sum of $983 93; that Madison resigned or was displaced as committee of Chambers, and died utterly insolvent in the year 1840, leaving unpaid a heavy debt to the said Chambers; that William Elliott, who had become the committee of Chambers, instituted suit in the same court against the appellees and others, and at the April term, 1842, obtained a decree for upwards of $25,000, with interest and costs; that a part was paid out of the proceeds of the property of Madison conveyed in trust for that purpose, and that the whole balance was satisfied by the then plaintiffs in that suit. And they ask, upon the principle of subrogation, that Edmunds may be compelled to account for and pay to them the amount of the bonds so received by him from the committee, with interest, and the Circuit Court, by its decree, in Majr, 1847, *( being of the opinion that the plaintiffs were entitled to the relief sought upon the ground, that Madison, the committee of Chambers, had violated the trust reposed in him, and that the defendant Edmunds had participated and aided in that violation, the one by making, and the other by accepting, an assignment of the said bonds in satisfaction of a private debt due from Madison to Edmunds,) decreed, with the consent of the plaintiffs, that Ed-munds should pay the amount of the bonds received by him, principal and interest, directly to Elliot, the committee, (who in his answer admits that the greater part of the decree in his favor has been satisfied by the plaintiffs in such manner as he was willing to accept,) tobe applied by him when received, to the credit of the obligations of the plaintiffs.

The defendant, Edmunds, in his answer assumes as grounds of defence against the claim of the plaintiffs, that Chambers had never been legally found to be a person of unsound mind, and that James Madison and William Eliott, and particularly the former, had never been legally appointed his committee. The facts disclosed by the record applicable to these two matters of defence are these: first, an order of the County Court of Prince Edward, made December 18th, 1797, which, reciting that “it appearing to the court that Josiah Chambers is in a state of insanity,” proceeds to appoint a committee of said Chambers, without referring to any inquisition, taken and returned by justices in the county: second, an order of the Superior Court of Chancery at Richmond, made 26th March, 1825, in a suit depending in said court, appointing James Madison committee of Josiah Chambers, in place of the former committee, and requiring him to execute bond before the County Court of Prince Edward, in pursuance of which order the bond of the 20th June, 1825, with the appellee Morton and Charles Venable as sureties, was executed: third, an order of the County Court of Prince Edward, on the 21st of August, 1837, made in pursuance of the act of 1836, (which authorized the *sale of Chambers’ land,) giving that court authority to require additional security of the committee, in obedience to which the bond of that date was executed, as before referred to; and an order of the same County Court made November 18th, 1839, on the motion of a sister of Chambers, and with the consent of Madison his committee. By this order, the court accepted the resignation of Madison, and appointed Elliot committee, who thereupon gave bond with security. Upon these facts, the counsel for the appellant stated three questions.

1st. That the original appointment of a committee of Chambers was illegal and void; because it did not appear that he had been found to be a person of unsound mind by the examination and certificate of three justices of the peace.

2nd. That the appointment of Madison as committee was illegal and void; because it was made by the Superior Court of Chancery — a court which had no jurisdiction over the subject, and consequently the sureties in these two bonds were not bound; and

3rd. That 'the appointment of Elliot was illegal and void; because it was only a continuation of and substitution for the preceding appointment, which, being illegal and void, could give the subsequent appointment no validity, and consequently Elliot had no right to receive the money.

4th. It was further contended, on behalf of the appellant, that the act of 1836, which authorized the sale of Chambers’ land, and appointed for that purpose eight commissioners, a majority of whom were required to act, conferred a mere naked authority, which must be strictly pursued; and as it does not appear1 that a majority had acted, (but, as the counsel contended, a smaller number had,) the sales of the lands were therefore illegal and void, and the title still remains in Chambers or his heirs; and, therefore, that Edmunds, although he might properly be liable to repay the amount he had received, ought not to be compelled to pay it to the ^committee of Chambers, or to the sureties of the former committee, Madison, but to hold it for the benefit of the purchasers, -whose money it is in that view; and

5th. That no fraud was intended, and in point of fact none was committed; because Edmunds sold his tobacco for a fair price and received the bonds in payment without a discount, thus only substituting one thing for another of equal value, and therefore he is not liable.

I listened with pleasure to the able argument of the counsel for the appellant in support of these views, but am unable to concur in the results to which he was conducted.

Upon the first two questions I do not think it proper to express any opinion; because, in the view which I take of the case, it is not important whether those orders of appointment were illegal or not, the decision of that question not being necessary to the decision of this case, for the reasons hereafter given on the third question.

Upon the third question, I am satisfied that the appointment of Elliot, in 1839, was entirely legal. It is true, that the law upon the subject (1 R. C. 1819, p. 412) gave particular directions in relation to lunatics who were to be sent to the asylum, yet a general jurisdiction was given to the county courts over all idiots and lunatics, with power to commit their persons and estates to proper and safe custody. This jurisdiction the County Court of Price Edward has exercised in this case, and to that court was confided the power to decide upon every fact and circumstance necessary to render an exercise of their jurisdiction proper, and we are bound to consider their judgment correct, until it is - reversed or annulled: it cannot be enquired into collaterally. Elliot’s appointment, then, being legal, it seems to follow, necessarily, that whether Madison’s appointment was regular or not can make no difference; the funds belonging to the lunatic’s estate were in his hands, and if his appointment was legal, he had resigned, and had no *longer any right to hold the funds, but was bound to pay them over to the legal committee. If, on the other hand, his- appointment was not legal, a fortiori that would give him no right to withdraw the funds from the rightful committee. And if it be conceded that the original appointment of Madison, and the orders under which he executed the two bonds before mentioned, were all illegal and irregular, and that the sureties in those bonds might have availed themselves of the defect and thus been relieved from the payment of the money, yet I do not perceive how this can enure to the benefit of the appellant. The sureties have been compelled to pay the money, and whether they attempted to avail themselves of that defence or not, they are now entitled to recover against the appellant, because he has in his hands a part of the money for which they have accounted ; and if they had made and succeeded in that defence, then the committee himself would be entitled to recover against the appellant, because he has in his hands money rightfully belonging to the estate of the lunatic.

Upon the fourth question, I am of opinion that the validity of the sales of the lands cannot properly be inquired into in this suit, and that the appellant in truth has no interest in the question. Many years have elapsed since the sales were made; they seem to have been acquiesced in by all concerned, and constituted an important branch of the suit against the sureties of Madison, who had an interest to investigate the question. But what interest has the appellant? Should the sales ever be disturbed on the ground of invalidity, it must be done by the heirs of Chambers who have received his estate, who would themselves be answerable over to the owners of the land; and therefore the appellant cannot be entitled to hold a part of the proceeds of sale, but should pay it over, she improperly holds it.

Upon the fifth question, I am entirely7 satisfied that the appellant did not intend to commit a fraud, and that he did not suspect he was engaged in a transaction *not perfectly innocent; but unwarily, he has done that which may subject him to loss, but to no imputation upon his motives. I consider it too well settled by concurrent authorities, to admit of question, that a person, who deals with a. fiduciary in relation to the trust estate, with a knowledge that he is so dealing, and thereby obtains an advantage to himself, or enables the fiduciary to make a misapplication of the fund, is responsible. In this case the bill charges that Madison assigned the bonds to the appellant in payment of a debt due to him. The appellant, in his answer, says that he sold his crop of' tobacco to Madison about the spring of 1838, and agreed to receive a part of the purchase ,money in bonds; that he received the bonds, but does not recollect whether he noticed at the time to whom the bonds were executed; and that he did not know, at the time of filing his answer, to-whom they were executed ; and that he very soon after the assignment placed them in the hands of an agent, who collected them. The evidence in the record is satisfactory that the bonds were in part of the estate of' Chambers, and so appeared on their face; and whether the appellant received them from Madison in satisfaction of an old debt due to him from Madison, or in part payment of tobacco at the time of the assignment, sold by him to Madison, as for cash, can make no difference. In either case it is a misapplication of the trust fund, in which the appellant aided and participated. I am, therefore, for affirming the decree..

THOMPSON, J.

I fully assent to the judgment of affirmance to be entered in this cause, in which the whole court concurs upon the grounds concisely stated and incorporated in the judgment itself, by the President in pronouncing' it, and’concur moreover in the reasons assigned in the opinion of my brothers Tyler and Clopton. as well upon the points ruled, as for declining to express any opinion upon the questions raised by the 1st, 2d, and 3d causes of error assigned *by the appellant in his petition for an appeal, so earnestly, elaborately, and ably argued by his counsel; being satisfied that they are immaterial to the decision of the cause; because I am of opinion, that in reference to the proper determination and adjudication of the rights and liabilities of the parties litigant in this suit, it is matter of perfect indifference, whether the committees Madison and Elliot were such de facto or de jure — having been so appointed, whether legally or illegally, and having assumed to act as such, and having so acted: and that it is alike immaterial, whether the sale of the Farmville lots, under the special act of the legislature, was irregular, illegal, and void, or the reverse, since Madison as committee in fact received as part of the proceeds of sale in the form of bonds, the two which he illegally transferred and assigned to the appellant for his own immediate uses and purposes, with full knowledge on the part of Ed-munds that he was so dealing with the estate he represented, whereby both he and Madison became accountable and chargeable, as for a breach of trust; and for which breach of trust the plaintiffs have been subjected by decree as the sureties of Madison; and having been so held liable and subjected, have been subrogated to the rights of Madison’s successor Elliot, by the decree complained of and brought under our review by this appeal.

No one who has received a benefit or inflicted an injury through the instrumentality, or in virtue or under color, of an office or appointment under which he acted, or assumed to act, can be permitted to impeach the validity of his authority to act, in order to shield himself from , the legal consequences of his own acts. That would be to enable the de facto officer or appointee to profit by his usurpation of authority, and take advantage of his own wrong. He ought to be estopped from such a defence as well in a court of equity as a court of law. In this case it would not only be inequitable, but iniquitous, to tolerate such a defence.

*It was argued by the appellant’s counsel, that admitting the existence of the liability of Edmunds to some one on account of his concurrence in or connivance at the breach of trust on the part of Madison, say to the purchaser of the Farmville lots under the illegal and void sale, or to the heirs of the lunatic, if the sale, though illegal and void, were confirmed by them; yet upon the hypothesis of the legal invalidity of the appointment of Elliot and Madison and of the sale and of the bonds entered into by the securities, no foundation was laid for the subrogation of the sureties by the decree rendered against them. To this it may be answered, if it be conceded that the bill could not be sustained in favor of the sureties upon the sole and exclusive ground of the doctrine of subrogation or substitution, that this case does not rest upon that ground exclusively and alone; it may be well treated by us as a bill quia timet, or as the suit of Elliot, the committee and successor of Madison, who has never received full but only partial satisfaction of his decree, but in lieu thereof holds the obligations of the sureties; and the judge in the court below so treating it, rendered the decree in his favor against the appellant, and provided that, when collected, the amount realized should be entered as a credit on the obligations of the sureties. If the appellant could not be rightfully held liable by such a proceeding, it would be difficult to imagine how the purchaser of the land under the void sale, or the heirs of the lunatic, as the case may be, could otherwise than by subrogation to the rights of Madison, Elliot, or the sureties of Madison, there being no contract or privity of contract between such purchaser or heirs and the appellant, upon which to found any remedy in a court of law, or any other ground of relief than.that of sub-rogation or substitution in a court of equity —and the consequence would be, after defeating Elliot and the sureties, when the purchaser or heir, the rightful claimant, asserted his right, he might be met and defeated upon precisely the same ground, if it be held to be a valid ground of ^objection to the relief, which has been accorded in this cause by the court below.

FIEED, P.

In this case we are of opinion, upon principle and authority, (see Fisher v. Bassett, 9 Leigh; Jackson v. Updegraffe, 1 Rob. ; and Pinckard v. Woods, 8 Grat.) that the assignment by Madison to the appellant Edmunds, of the bond of White and Jackson, and the bond of Robertson and Jackson in part payment of a private debt due from Madison to Edmunds, was a violation of his duty as committee of Chambers, in which breach of trust Ed-munds participated by receiving the transfer of the bonds for that purpose, and in consequence thereof, became liable to account to Elliot, the subsequent committee, for their amount with interest, and the ap-pellees, the sureties of Madison, having been made to account to Elliot for the proceeds of these bonds with interest, they have a right tobe subrogated to the rights of Elliot against Edmunds, and to have a decree against him for the amount o£ the bonds with interest.

The questions discussed with so much ability by the appellant’s counsel, involving the legality of Madison’s appointment as committee of Chambers, by the Chancery Court at Richmond, the validity of the bond executed by him and his sureties, and the legality of the sale of the Farmville lots necessarily arose, and were decided in the suit brought by Elliot against Madison and his sureties, by which the sureties were held bound by the court. We do not think these questions arise again in this cause, and therefore forbear to express any opinion upon them.

We are of opinion there is no error in the decree complained of, which is therefore to be affirmed with costs.

GII/MüyR, J., concurred.  