
    Field vs Arrowsmith, et als.
    
    J . The assent of the peron selected as trustee is not necessary to the validity of the deed. If he refuse Jo execute it a court of chancery will execute it.
    The assent of the beneficiary in the deed may be given at any time after the deed is executéd, and in the absence of proof to the’contrary, will always be presumed.
    3, A trustee is not permitted to purchase the trust fund, for his own benefit unless the beneficiary agree to the purchase, and in a controversy between the trustee and bene" ficiary,in reference to the assent of the beneficiary, such assent must be proven by clear and explicit proof, even though the proceeds of the sale be properly appropriated ;
    This bill was filed by Field, the beneficiary in a deed of trust, against Arrowsmith the trustee and others.
    Field was the surety of Mitchell. Mitchell executed a deed of trust for the benefit of Field, embracing a slave Jim, to be sold in the event it became necessary to save Field harmless. Arrowsmith was the trustee. Judgment was rendered in the circuit court of Giles, against Mitchell and Field. And Mitchell being insolvent, Field paid the debt.
    Arrowsmith purchased the slave Jim, and the money was not appropriated to the satisfaction of Field’s claim.
    This bill was filed to subject the slave to the satisfaction of the claim of Field, The bill alledged that Arrowsmith accepted the trust. Arrowsmith denied it in his answer, and alledged that he purchased Jim with the assent of Field. A replication was filed, there was proof taken, and the cause came on to be heard before Bramlitt, chancellor, at the September term, 1842, on bill, answer, replication and proof. The chancellor decreed the sale and purchase void, and ordered that the slave be sold and the proceeds applied -to the satisfaction of Field’s claim. Arrowsmith appealed.
    
      
      Goode and Jones, for complainant.
    The defendants in their answer rely upon two grounds.
    1. That Arrowsmith, the person named in the deed as trustee, never accepted the trust, but refused so to do, and that therefore the deed was inoperative.
    2. That complainant by parol gave .his assent to the sale of the negro by Mitchell to Arrowsmith, and waived or released his interest under the deed.
    In answer to the first ground, it is insisted that the answer of Arrowsmith, when the whole of it is examined, shows that he did accept the trust. But itis not at all necessary to give validity to a deed, that the trustee should accept it; if the cestui que trust accept it, it is sufficient. And further, if a deed is made without the knowledge of the cestui que trust, it would be competent for him to affirm it and enforce its performance, after it comes to his knowledge. 1 J. C. R. 119: 3 ibid 261: 4 ibid 136.
    And when there is no clear evidence of acceptance it will be presumed on account of the benefit he derives under the deed. 3 Yerg. Rep. 257. In answer to the second ground relied upon, it is insisted:
    1. That if, as is contended, Arrowsmith accepted the trust, he could not afterwards purchase the trust fund, although he should pay a fair consideration for it, without the consent of Field, and not then until their relationship was dissolved. 24-Law Lib. 192, top page.
    It is at all times a transaction in the purchase of the trust funds by the trustee, of great nicety, and one which the courts will watch with the utmost vigilance. 9 Yesey, 244: -6 Yesey, 626: 3 Mer. 209.
    It is true, if a trustee purchase the trust funds, the cestui que trust may ratify the sale, but then all the requisites of the law must be complied with. 24 LawLib. 198, and the instances and authorities there cited. The English law in its strictness, has been recognized in this country. 2 McCord’s Ch Rep. 389: 8 Wheaton, 421: 2 J. C. R. 252, 311.
    But suppose Arrowsmith did not accept, but disclaimed the trust, he had notice of its existence, and his purchase from Mitchell, who had only an equity in the negro, would give him no better tide than Mitchell had, which would be under and subject to the trust. 7 Cranch, 97: 3 Yerg. Rep. 270.
    And he will, by virtue of his purchase with, notice, become trustee. 1 J. C. R. 566: 4 ibid 136: 24 Law Lib', (trusts and trustees) 206, 104,105, 192.
    It is however insisted by the defendant that Field waived or released his rightunder the deed by assenting to the sale by Mitchell to Arrowsmith. “In order to constitute a waiver, there must be a clear, unequivocal, and decisive act of the party, an act done which shows a determination in the individual not to have the benefit designed for him.” 3 Yerg. R. 276. “As to waivers” says [Sir William Grant, “it is difficult to say precisely what is meant by that term. With reference to the legal effect, a waiver is nothing, unless it amount to a release, and will not be supported without consideration.” 24 Law Lib. 315: 10 Vesey, 466.
    Can a release be operative, unless in writing, and for a consideration, and under seal? that it cannot, see 24 Law Lib. 315:1 Cowen, 122: 2 N. York Dig. 891, 892: 13 J. R. 87: 2 J. R. 449.
    But suppose the mere assent of Field to the sale by Mitchell to Arrowsmith, by parol, without consideration, and without any obligation upon Arrowsmith to see to the application of the proceeds of the sale to the object specified and provided for in the deed, would be operative and binding upon Field, it is insisted that the evidence of such assent does not exist in the case. The defendants having set it up in their answer, as a ground of defence, it devolves upon them to prove it. Such proof must show acts or language “clear, unequivocal and decisive.” 3 Yerg. Rep. 276. This does not appear in this case. If there was such assent, it was given conditionally, and the condition not having been performed, the assent became inoperative.
    
      Wright', for the defendants.
    The decree of the chancellor in this caséis erroneous and should be reversed:
    Because Field gave his consent that Mitchell should sell the slave in dispute and do the best he could with him. And whatever may have been Field’s rights, and whether the trust was accepted by Arrowsmith or not, complainant lost all his equity by assenting to the sale, and by his conduct towards Ar-rowsmith. To permit him to assert his claim now, would be a fraud upon the rights of Arrowsmith. 1 Story’s Eq. pages 375, 376, 377, 378, 379, and especially 382.
    Also the case of Storrs and Brooks vs. Booker, 6 John. Ch. Rep. 167, and authorities cited. Even if Field’s negligence misled Arrowsmith, and both are equally innocent, the loss must fall upon Field who caused it and trusted most. 1 Story’s Eq. 377: 6 John. Ch. Rep. 172.
    Here Mr. Wright commented on the testimony to sustain the position that Field assented fully to the sale. Arrowsmith, he considered, was shown in the record to be a man of caution and prudence, and it was unreasonable to suppose he would invest his money upon a disputed title where his vendor was insolvent. ' And the truth no doubt was that Field trusted Mitchell who disappointed him through inability to pay the debt: If so, the loss must be his and not Arrowsmith’s. 6 John Ch. Rep. 172.
   TuRLRy, J.

delivered the opinion of the court.

The complainant charges that he became bound as surety for one Marcus Mitchell in the sum of two hundred and fifty dollars, for which'a judgment is,entered in the circuit court of Giles; that said Mitchell for the purpose of securing him from liability for the payment of said debt, and for other purposes, on the 2Sth day of December, 1840, made and executed a deed of trust to one William Arrowsmith as trustee, by which he conveyed a certain negro man named Jim in trust to him, which deed has been duly acknowledged and registered; that said Arrowsmith in fraud of complainant’s rights, purchased said negro man Jim from said Mitchell, and claims to hold him discharged from the trust, created in favor of the complainant, and prays that said trust be executed.

Arrowsmith answers and denies that he ever accepted the (.rust, and claims to hold the negro by Iona fide purchase from Mitchell, with the knowledge and express assent of complainant, at the time the purchase was made.

A deed of trust being always made for the benefit of the cestui que trust, the assent of the trustee is not necessary to its validity; it is true, he may refuse to execute the trust, but in that case, a court of chancery will execute it for him; and the assent of the cestui que trust may be given at any time, after the deed is made, and will always be presumed in the absence of proof to the contrary. A trustee is not permitted by a court of chancery to buy the trust fund for his own benefit, and if he do so, he will still hold it for the use of the cestui que trust, unless he agree to the sale and this agreement must be proven by clear and explicit testimony, and this too, when the trustee sees, as it is his duty to do, that the purchase money is appropriated in discharge of the trust; much more so then will this be the case, where the purchase money is misappropriated, as it has been here.

What is the proof as to the agreement on the part of the complainant the cestui que trust, to the purchase of the trust property by the defendant Arrowsmith the trustee? John Hamilton says, “that Arrowsmith and Mitchell came to Field, and told him that they wanted the boy Jim and that if he would give him up, he should be clear of the debt for which he was bound for Mitchell and for which Jim had been conveyed in trust as security. Field replied that if he was clear of the debt, they might have the boy, but otherwise not — they told him he was clear, and upon that he gave up the boy.”

Joseph B. Childress says; “he heard a conversation between Arrowsmith and the complainant after the purchase of said negro by Arrowsmith, Field complained, of Mitchell’s treatment, Arrowsmith replied that he ought not to have consented to let Mitchell sell the negro, Field answered that he did not consent) but upon the condition, that the debt was paid.”

James S. Berthwright proves a conversation of the same character between complainant and Arrowsmith, which is confirmed Iry David Neel.

Mitchell says he sold the negro to Arrowsmith at the price of $650 cash, that Field consented to the sale, that he told him he could and would pay the debt, that complainant replied that he was not afraid but that he would.

Bernard M. Bercli says, he heard Field say that he had consented to said sale, that lie had told Mitchell to sell the negro and do the best he could with him.

This proof would in all probability support Arrowsmith’s legal title to the negro acquired by his purchase from Mitchell, but we consider it wholly inadequate to support the position, that Field relinquished all interest in the trust fund, and agreed to place himself entirely at the mercy of Mitchell; on the contrary, we think its tendency is to prove that he was willing to the sale, provided hfc was released from responsibility, or in other words, that he had no objection to Arrowsmith’s buying the negro, if the debt was satisfied out of the proceeds, which might well have been done, and-which Arrowsmith was bound bylaw to see done, unless Field had in express terms released him from such responsibility — which there is no pretence for saying he did. So thought the chancellor, and we affirm his decree.  