
    CLEVELAND vs. POLLARD.
    HBIIX IN 353PITY TO .SUBJECT SEPARATE ESTATE 01? MARRIED WOMANYTO - PAYMENT ,OI? DEBT: 3]
    1. ,Suffioionay of service — Whore one of .the defendants was ,described in the original hill as Charles T. Cleveland; and the sheriff returned the subpoena “ executed, on Charles K. Cleveland, and Charles T. Cleveland npt found;” and, the bill was afterwards amended by substituting II. for T. as the initial, .letter of the middle name, — held, that the service was sufficient, and, that the-variance was, at most, an immaterial misdescription.
    3 .'Contract between, trustee and oestirt q.ue trust,. — To subject a married woman’s separate estate, created by deed or will, to the payment of a debt contracted by her with her trustee, or witha partnership of. which he is a member,.it is.pofc enough for the complainant to ayerapclpyove that “ the articles were furnished by her express desire, uiider the faith and credit of, her separate e§tat,e, and were suifab.le, and proper to her condition in life”: ,he must repel the imputation, of bad faith,, which the law,,oasts upon him, by showing that the prices charged were rea-so.nablo,.and that he, made nq .profit by ,thpAtrausaction.
    ATPEAL.from-,th‘e Chancery Court m>£,.Bussell.
    Heard before t[ie,Hon.. James B., Clark.
    Tf-iE bill in this..;case was filedby’,-Charlas T. Pollard, Samuel Gr. Jones, and Wm. C. Yonge, as partners and joint Owners of the Chewacla xáme Works,” against ‘Mrs. ¡Elizabeth E. Cleveland, Charles'T. Cleveland, her husband,' and William C. Yonge, her trustee ; and «sought to subject ¡Mrs.¡jj Cleveland’s separate estate, held under the will of -her deceased father, to the paymenfcof a debrieontractedhy her 'with the complainants. It alleged, that the complainants had furnished lumber, lime, and «other materials, and .had advanced money, towards the construction of a dwelling--house on alotbelonging-.to Mrs. Cleveland;; -that “they«also furnished to her, by her express -.desire, during the years 1855, 1856, and 1857,'various articles suitable and prcjper '.-to her condition in life,-and advanced various -sums of money Üo her, and for her benefit, in the same way, and all under f-ihe faith and credit-of her said separate estate;” and that ¡said separate estate consisted of two slaves,-a tract of land containing about eighty acres,-and a four-acre lot on which her dwelling-house was situated. In the original bill, Mrs. 'Cleveland’s husband was described as Charles I. Cleveland; but, the sheriff having returned She subpoena ‘“executed on Charles II. Cleveland, and Charles T. Cleveland .not found,” the bill was afte'rwards.amended, by'substituting H. for T. as the initial letter of his middle name.
    Decrees pro co^fesso were entered against all the defend«ants, in default of their appearance; and at 'the ensuing (term, the cause having been submitted for decree, the 'chancellor held .the .complainants entitled to relief, and ■ordered a reference ito the master, to ascertain and report ‘¡the amount of the complainants’ debt, the value of Mrs. Cleveland’s separate-estate, in what it consisted, and what .part of it conld be sold with least detriment to her intef-¡ests. At the next term, after the master’s report had been made, the defendants Cleveland and wife ■submitted tía 'application to set aside «the decree pro confe'sso against them, ¡■and for leave to file an answer.and their application was ¡•supported by several affidavits. The chancellor overruled She application, hut without prejudice to a renewal'of 'the -application by Mrs. Cleveland alone'; and afterwards overruled her application, founded on new affidavits, confirmed the master’s report, and ordered a sale-of a part of her -separate estate, unless the complainants’ debt was paid by a given day.
    It is now assigned as error — 1st, that the bill ought to have been dismissed, for want of equity ; .2d, that the decrees pro confesso ought to have=-been-set aside, and the defendants been allowed to file answers.; -and, .3d, .that .the final decree is erroneous.
    CuiltoN-& Yancey, and TVan Pi Chilton.- Je.-, for appellants.
    ‘Geo. D. Hooper,, with .Golotitwaite;! Rice Semple, contra.
    
   STONE, J.

The point madb on the sufficiency of the service on Mr. Cleveland, must,-we think, be overruled. We do not doubt that the true party was served with subpoena ; and hence we disregard that portion of the sheriff’s return, which affirms that “ Charles T. Cleveland [was] not found.” The variance is, at-most, a misdescription of the initial letter of Mr. Cleveland’s middle name. Under the principles ruled in Edmundson v. The State, (17 Ala. 180,) such misdescription is immaterial. — See Lynes v. State, 5 Por. 236.

The view we take of a question after considered, renders it unnecessary that we should say much on the subject of setting aside the decree .pro confesso. The chancellor attained the conclusion, that The defendants had betrayed great want of diligence; and we are of the same opinion.

We have not been referred to any adjudged case, nor have we found any, which is precisely like the present. This is not the case of a sale of trust property by a trustee to himself, nor of a purchase of the trust estate by the trustee from the cestui que trust. If such vere the facts of this case, the law applicable to it is well defined. — See Thompson v. Lee, 31 Ala. 304-5, and authorities cited ; Hill on Trustees, 157-8 ; Story’s Eq. Jur. §§ 321-2.

The bill in this case, in effect, charges that the account, for the recovery of which this suit is brought,-is for articles sold, to Mrs. Cleveland at-her instance and request. We treat the caseras-if-the'bill charged that Mrs. Cleveland purchased the. .goods-from the complainants by express contract. The language, of the bill is.: “ Your orators also jointly,furnished tlie -said Mrs. Elisabeth E. Cleveland, by her express desire, during the years 1855, 1856, and 1857, with various articles.-suitable and proper to her condition in life, and advanced .various sujns of- money to her, and for her benefit, in the same way..” But immediately in connection is found the averment, that all this was done “ under the faith .and credit of her separate estate.” The plain import of this.language is, that the complainants, of whom one is the trustee of Mrs. Cleveland, intended by the sale to create a charge on her trust estate. It is difficult, if not impossible, to distinguish, in principle, this transaction from the ordinary, case of a purchase of the trust estate by the trustee., “A trustee is. never permitted to partake of the bounty of the party for w-hom he acts, except uuder circumstances which would make the same valid, if it were a case of guardianship, . A trustee cannot purchase of his cestui que trust, unless under like circumstances ; or,, to use the expressive language of an eminent judge, a trustee may purchase of his cestui que trust, provided there is a distinct and clear contract, ascertained to be such after a jealous and scrupulous examination of all the circumstances; and it is clear that the cestui quo trust intended that the trustee should buy; and there is no fraud, no concealment, and no advantage taken by the trustee of information acquired by him as trustee.” — 1 Sto. Eq. Jur. §§ 321, 307; Fox v. Mackreth, 2 Bro. C. C. 400.

In the cas¡e of Thompson v. Lee, (31 Ala. 304,) we stated, as the result of the authorities, many of which are there cited, that contracts of parties, between whom there exists some peculiar confidential or. fiduciary relation, “ are regarded, prima facie, as constructively fraudulent; and the onus is cast on the party seeking to set them up, of -proving the bona fieles of the transaction, and of repelling the imputation of bad 'faith and oppression Which the law casts on him!*’ — See, also, Greenfield's estate, 14 Penn. State Rep. 504, et seq.; Taylor v. Taylor, 7 How. U. S. 199 ; Hill on trustees, 157, et seq.; McKnight v. Wilson, 2 Jones’ Eq. 491; Puzey v. Seneir, 9 Wis. 370.

While'we concede, that such a transaction as this may be upheld, if there be no bad faith or oppression on the iparlmf the trustee; still, ‘-under the principles above declared, the onus rests on the trustee, wdio seeks to enforce such a contract,'of repellihg the imputation of bad faith and 'oppression. Applying these principles to this case,íhe bilbmust be ¡pronounced defective, True, it avers that 'the articles wer-e supplied'to Mrs. Cleveland by her express desire; but it is'-not stated that the articles thus furnished '«were reasonably worth the-sum charged; nor, when bought for the <use of Mrs. Cleveland, does it in all cases appear that no .profit or enhanced price was charged against her. All the averments of the bill may be true, and yet the charges for the various items be unreasonable. The onus being on the complainants, they have not brought themselves within the rule.

The decree of the chancellor is reversed, and the cause remanded.  