
    The heirs of Wade vs. Harper and others.
    
    When a person for whose benefit a-deed of trust is executed upon real and personal estate, has the power given to him to direct and control the sale, the time, manner, and terms upon which it is to be made, he is not permitted to purchase the legal title, however innocent and free from fraud the purchase may be.
    Such sale and purchase may be set aside at the election of the heirs or creditors of the conveyor in the deed of trust.
    If a deed convey real and personal estate for the payment of a debt, and the personal property be sold and purchased by the crédito/, for less than its value, and he re-sell it for the amount of his debt, this will be a satisfaction in equity of his claim on the trust property, and discharges the real estate; and if the real estate be sold also, and purchased in under such circumstances by the creditor, the sale and purchase will be sot aside, and any suit at law brought upon that title so acquired, be perpetually enjoined.
    Bill filed 27th June, 1829. Seth Wade, the ancestor of the complainants, in his life time, was indebted to the defendant Harper, in the sum of $1000, to secure which he executed a deed of trust, conveying in trust, his right to two thirds of the personal estate of one Stilwell, (then in suit) and a tract of land in Henry county. The deed of trust was made to Alexander' Gray, as trustee, and it was sealed by said Wade, said Gray and Harper, One condition of said deed of ^rus^’ (among others not necessary to be noticed,) was, “that if the said Seth Wade shall well and truly pay to the said Jesse Harper, the debt aforesaid, with interest, on or before the first day of January, 1825, then this indenture shall cease and determine, and the said Alexander Gray shall convey to the said Seth Wade, the land, &c. but if the said Seth Wade shall make default in making payment, &x. on or before the said 1st day of January, 1825, then the said Alexander Gray, shall, at the request of the said J. Harper, expose to public sale, &c. for ready money, or on a credit, at the option of said J. Harper, the aforesaid land, &c.” The money was not paid, and in March, 1825, the land was sold, and Harper became the purchaser, who sued the heirs of said Wade in an action of ejectment at law. This bill was filed to set aside the sale, and to enjoin the suit at law, alleging the debt was made by the money received for said Wade’s interest in Stilwell’s estate, which had also been purchased by said Harper at the sale. The property conveyed was worth about $4000, and Harper bid it off for his debt. He did receive afterwards, the amount of his debt, out of the in. terest conveyed in Stilwell’s estate, by selling said interest. Decree below for complainants.
    
      Miller, for the complainants.
    
      Stoddart and H. Dunlap, for the defendants.
   Catron, Ch. J.

delivered the opinion of the court.

We cannot distinguish the relation of Harper to this transaction, from that of a'commissioner of a bankrupt, where the trustee makes the sale of the assets. In such case, the commissioner has a duty to perform, to make the estate bring the best price, and cannot buy without being subject to have the sale set aside at the election of the creditors. 10 Vesey, 385.

In all cases where the property is vested in a trustee, with power to sell, or where there is a power in one to sell the title remaining in the cestui que trust, or the aid of a solicitor is called in, or there is an agent to aid in effecting the sale, such persons cannot be permitted to buy the property, denuded of the trust, and if any interested, especially the cestui que trust, calls in question the purchase, that it was fair, is no de-fence; the trust attends it. Armstrong’s heirs vs Campbell, Nashville, March 1832; 2 Johnson’s Ch. C. 256, 260.

What was Harper’s situation? 1. He had the right to say when Cray should sell at option. 2. Whether Gray should sell on a credit, and what credit, or for ready cash. Gray, in truth, was a naked trustee, and the power to order and control the sale entirely in Harper. A party to the transaction thus situated, is not permitted to buy in the legal title; “however innocent the purchase may be in the given case,” it is poisonous in its consequences. The cestui que trust is not bound to prove, or the court bound to judge, that the purchaser has made an advantageous bargain. 2 Johnson’s Ch. C. 260. But were it otherwise, here the evil consequences are apparent. Harper ordered the sale forthwith to be made, and for ready cash, and purchased in at least $4000 worth of property, for $1000; then re-sold the Stilwell estate for the exact amount that paid his debt, with interest, and all charges incident to prosecuting the claim. That he sold the interest in the estate for much less, perhaps one half of its real value, is pretty manifest; but the heirs of Wade have no right to call upon Harper for any mismanagement in this respect. The property parted with was an outstanding chose in action, belonging to their father in his life time, and there being no personal representative, Harper can only be made to account on the foot of payment, through his deed of trust, for so much as he actually did receive in relief of the real estate conveyed, which is entirely disincumbered, and which the court is gratified to believe, attains pretty nearly the justice of the case. Having taken the claim on the Stilwell estate, and the legal title to the land in Henry, encumbered with the trust that was attached to it in the hands of Gray, it was unconscientious to proceed against the land, after his debt was fully paid by the sale of the personal property pledged. Harper must therefore be perpetually enjoined from proceeding in ejectment at law, and be divested of his title as decreed below.

Decree affirmed. 
      
       Ante page 201.
     