
    Whitton’s Adm’r v. Terry.
    March, 1835,
    Richmond.
    (Absent Brook’h, J.)
    Administrators — What Is a Fair Transaction by — Case at Bar. — A. by deed of trust in his lifetime, mortgages slaves for debt, and the slaves are sold by the trustee, after his death: B. purchases some of these slaves at the trustee’s sale, at a full price, and borrows part of the purchase money of A.’s administrator, who charges UimseJ f with the same in his administration account, B. knowing at the time of the loan, that the money borrowed of the administrator, was the money of A.'s estate; and then B. settles the slaves so by him purchased at the trustee's sale, upon A.’s widow, who is B.'s daughter: ]i eld, this it a fair transaction; and a creditor of A. recovering judgment against his administrator, has no right to levy an execution on these slaves.
    Bquity Jurisdiction — Injunction — Sale of Slaves.— Kauity has jurisdiction to enjoin the sale of the slaves so settled, under the execution sued out by A.'s creditor.
    Alexander M’Daniel conveyed sundry slaves to William Cook, in trust, to secure a just debt. Before this deed of trust was acted on, M’Daniel died, and administration of his estate was granted to Abner Whitton. Cook, in execution of the trust, sold seven of the mortgaged slaves, three of them females, to William Whitton, the father of Abner, for 4420 dollars, and made him a bill of sale for them. William Whit-ton, in order to enable him to pay this money to Cook, the trustee, borrowed divers sums of money of divers persons, and ‘among- others, he borrowed of his son Abner Whitton, the administrator of the mortgagor M’Daniel, the sum of 960 dollars, which, as William Whitton knew,, belonged to M’Daniel’s estate, being the amount of a debt which Abner had as his administrator collected, and which he credited to the estate in his account of administration. The widow of M’Daniel Ihe mortgagor, was a daughter of William Whitton and sister of Abner ; and William’s purpose, in purchasing the seven slaves a!t the trustee’s sale, was to make some provision for the support of his daughter, Mrs. M’Daniel, and accordingly, after his purchase of them, he put them into the hands first of Sherrard, then of Jesse, and last of Jeremiah Whitton, to apply the profits to the support of Mrs. M’Daniel, and to account to him for any surplus.
    William Terry having recovered a judgment against Abner Whitton administrator of M’Daniel, to be levied de bonis testa-toris, sued out a fieri facias, and caused it to be levied by the sheriff on one of the seven slaves which had been purchased by William Whitton at Cook the trustee’s sale. Whereupon William Whitton exhibited his bill against Terry and the sheriff, in the county court of Bedford, setting forth his title to the slave taken in execution, and praying an injunction to restrain the sheriff from proceeding to make sale thereof under the execution. The injunction was awarded. Terry, in his answer, alleged, that the purchase made by William Whitton, at the trustee’s sale, was made with money of Alexander M’Daniel’s estate, lent and advanced to him for the purpose, by Abner Whitton, the administrator, who ought either to have applied that money, to the payment of his intestate’s debts, or to the redemption of the mortgaged slaves, and in that case to have held the property as assets of his intestate’s estate, subject to the claims of his intestate’s creditors; and therefore, William Whitton’s purchase of the slaves at the trustee’s sale, was fraudulent and void as against the creditors *of M’Daniel’s estate. The plaintiff died pending the proceedings, and they were revived in the name of his administrator.
    The evidence in the cause, distinctly proved the facts of the case, as above stated.
    The cause being removed, by consent of parties, to the superiour court of chancery of Lynchburg, the chancellor, upon the motion of Terry, dissolved the injunction. Whitton’s administrator applied to a judge of this court, for an appeal from that decree ; which was allowed.
    Leigh, for the appellant,
    said, that as the chancellor had not stated the ground of-his decree, it could only be conjectured. If he dissolved the injunction, on the ground that the plaintiff had a remedy by action at law, and so the case was not a proper one for relief in equity, the recent decisions of this court had fully sustained the jurisdiction of a court of chancery to relieve in such a case. Allen v. Ereeland, 3 Rand. 170; Randolph v. Randolph, 6 Rand. 194; Har-risqn v. Sims, Id. 506. If the ground of the decree was, that the plaintiff's ¡purchase of the slaves at the trustee’s sale was not accompanied and followed by delivery of possession to him, that doctrine had no relation to a case like this. Kidd v. Rawlin-son, 2 Bos. & Pull. 59. In fact, the possession did accompany and follow the sale. Then, supposing- the ground of the decree to have been, that the plaintiff borrowed of M’Daniel’s administrator, a part of the money which he paid for the slaves by him purchased at the trustee’s sale, and that this circumstance rendered the whole purchase fraudulent in fact or in law, us against any creditor of M’Daniel’s estate; that circumstance, he insisted, evinced nothing fraudulent in the transaction, or any wise unfair. 'An administrator collecting money due to his intestate’s estate, giving the estate credit for it, and duly accounting to the creditors *for the money so collected, might make any use he pleased of the specific money collected. * In the present case, the administrator fairly charged himself with the 920 dollars he had collected, in his administration account, and made himself and his sureties responsible for it.
    Johnson, for the appellee,
    admitted, that the decree could not be supported on either of the first two grounds suggested by Leigh : but he insisted, that the transaction was fraudulent as against M’Daniel’s creditors. The slave in question had been mortgaged by M’Daniel, in his lifetime; the equity of redemption was in him, and subject to the claims of his creditors in general, who might have levied an execution on the property ; Bowyer v. Creigh, 3 Rand. 25. The administrator of M’Daniel, instead of applying the money of his intestate’s estate, either directly to the satisfaction of his debts, or to the redemption of the mortgaged property, which was liable for his intestate’s debts, suffered the mortgaged property to be sold, and lent his intestate’s money to his father, that he might purchase it at the trustee’s sale, for the benefit of his sister. This was a diversion of the assets from the purpose to which the law required him to apply them, obviously injurious to the creditors of the estate; and as the borrower knew this, he was party to the injury done them. In effect, the debtor’s money was applied to the purchase of the debtor’s property, for the benefit of the debtor’s widow, and thus withdrawn from its proper purpose, the satisfaction of the debtor’s creditor. The transaction was a fraud upon them; it was, at the least, suspicious; and no party to such a transaction could be entitled to the aid of a court of equity.
   CARR, J.

I can see no good ground for dissolving the injunction. The appellee’s counsel placed it solely on the ground of fraud, because the slaves were bought *in part with money borrowed from the administrator. But how was the estate or the creditors of it injured by this? The intestate M’Daniel had made a mortgage of his slaves in his lifetime: this is admitted to have been fair. The sale under it by the trustee, was also regular, and the slaves sold, I should think, very well; seven for 4420 dollars; averaging 631 dollars, though three of the seven were women. The estate then lost nothing by the sale. Did it lose by the loan of the money? Not that I can see. The administrator certainly had that power. The estate was credited for the money in account with him; it had the same fund to pay the debts, and that fund at interest. According to the average of the sales, the 920 dollars would not have bought more than one slave and a half; the others were clearly bought with the money of William Whitton. How, then, could this vitiate the whole case? If this had not been the father who bought, and the brother of the intestate’s widow who was administrator, the idea of fraud would never have entered into the imagination of any body: and jret these facts do not constitute fraud, though in a doubtful and suspicious transaction, they would be circumstances of weight. There is not a doubt that the father bought for the benefit of his child. Who can blame him, if, in saving her from want, he practised no wrong upon any body, but gave a fair and full price for the slaves? We see that he borrowed money from others, and no doubt has repaid them. I think the decree should be reversed, and the injunction reinstated.

BROCKENBROÜGH and CABELL, J., concurred.

TUCKER, P.

I am clearly of opinion, that the dissolution of the injunction is not to be sustained, upon any principle whatever. I concur with the appellant’s counsel, that the doctrine of fraud per se has no application *to the case, and that there is no difficulty on the question of jurisdiction.- I am further of opinion, that there is no fraud or improper conduct on the part of the appellant’s intestate, which ought to exclude him from relief, or subject his property to the execution of the creditors of M’Daniel, or convert his purchase into a trust for their benefit. Although a confederacy between the administrator of M’Daniel and William Whitton, for. the purchase, with M’Daniel’s money, of the incumbered slaves for the benefit of his estate, might have been fraudulent as to his creditors; yet a loan of the money of the estate by the administrator bona fide, to enable him to purchase them, for his own use and as his own property, or for the use of his daughter, would not have been necessarily fraudulent; though if the estate was involved, such a loan would have been imprudent on the part of the administrator, and would have subjected him to an action of devastavit by a creditor. By such loan, William Whitton became debtor either to the administrator himself, or to the estate; and the administrator himself became at once chargeable with and liable for the amount, to the creditors of the estate. If the loan had not been made, the creditor could only have reached the fund by action against the administrator. It was not competent to him to reach the equity of redemption in these slaves, if they had remained unsold, it being now the settled law that such an interest cannot be reached bj' execution. The creditor thus has no pre-tence for complaint, that he has been injured by William Whitton, whatever reason he may have to complain of the administrator; and even as to him, there is no evidence, that at the time of the loan, he was aware of Terry’s demand, which had not then been prosecuted to judgment and execution. The money having been borrowed by Whitton for his own use, it ceased tobe, in his hands, the money of M’Daniel’s estate; and the purchase did not therefore create a resulting trust for *the benefit of that estate; but the property became absolutely his own, he being debtor to the administrator, or to the estate, to the amount of the loan. The very high price given for the slaves, and the fact that Whitton, a moneyed man, borrowed from other quarters also, and paid up the amount of his purchase, afford assurance of the fairness of the transaction; which is further confirmed by its being frankly avowed, and by the fact that the administrator charged himself with the amount of the money loaned. And as there was no fraud, — as Whitton purchased the property, either with his own funds, or with moneys lent to him and which he was responsible to pay, — the property was absolutely his, and was not subject to the execution of a creditor of M’Daniel. The injunction, therefore, ought not to have been dissolved in the present aspect of the case; and the decree should, therefore, be reversed, the injunction reinstated, and the cause further proceeded in to a final hearing.

Decree reversed, and injunction reinstated.  