
    Lewis Williams versus Abijah Reed and Trustee.
    One summoned as trustee in a process of foreign attachment, answered, that as guardian of an infant he sold land to the principal defendant, under a license of court, but that he did not give the bond nor take the oath required by law previous to such sale ; that part of the pur grase money had been paid, and a deed had been executed and placed in the hands of a third person, to be delivered when the residue should be paid; that the principal defendant, soon after the sale, entered and was still in possession of the land, and had paid the taxes for several years, but that the last tax had been assessed to the respondent as guardian, he being himself one of the assessors. Held, that he was chargeable as trustee for the money which he had received, the sale being invalid.
    Jonathan Pratt, the supposed trustee, answers, that as guardian of certain infants, he, on the 3d of July, 1820, in pursuance of a license from this Court, caused certain real estate to be sold by public auction, and that Reed was the purchaser, for the sum of 1528 dollars. The conditions of the sale were, that 100 dollars should be paid in thirty days, and the remainder in annual instalments of 500 dollars, with interest annually: the purchaser to secure the payment by two good bondsmen or sureties. Before the 28th of September, 1822, Reed had paid, at different times, 355 dollars, and on that day he paid the further sum of 600 dollars. In pursuance of an agreement made on the same day between the respondent and Reed, the respondent executed a deed of the land to Reed, and deposited it in the hands of one Pool, to be delivered to Reed when he should pay the residue of the purchase money. The respondent then held notes of Reea for the sum due, without any surety. On the 1st of April, 1824, Reed paid the further sum of 125 dollars. On the 1st of April, 1826, when the notes were renewed, there was due the sum of 787 dollars, which sum still remains due. The new notes are not negotiable. Reed entered into possession of the land soon after the purchase, and has occupied it ever since. He never requested the respondent to return to him the money paid, nor to rescind the contract, and the deed is still in the hands of Pool. The respondent does not recollect giving a bond to pursue the directions of the law respecting the sale of real estate-by guardians of minors, but he believes that he took the oath required by law previous to making the sale. Pool thinks, but is not certain, that he administered the oath. No such bond, nor any certificate of the respondent’s taking such oath, can be found in the probate office. The money was received for the use of the minors, and the respondent charged himself with it in his guardianship account. All the taxes upon the land since the sale were paid by Reed, except the last; which was assessed against the respondent as guardian, in consequence of a conversation among the assessors, of whom the respondent is one, in which it was considered that it would be less difficult to collect the tax if it was assessed against the respondent, it being doubtful whether any title to the estate had vested in Reed.
    Baylies, for the respondent,
    said, that the contract of sale,
    had not been rescinded, and so Reed had no cause of action against the respondent when the writ was served. Reed has never demanded a restoration of the money paid, and the sale, though voidable for irregularity in the guardian’s proceedings, is valid until it is actually disaffirmed by the wards. Shearman v. Akins, 4 Pick. 283 ; Clark v. Brown, 14 Mass. R. 272 ; Maine F. & M. Ins. Co. v Weeks, 7 Mass. R. 438.
    
      Cobb, for the plaintiff.
   The opinion of the Court was drawn up by

Parker C. J.

The question is, whether by the answers of the person summoned as trustee it appears that the mone'f

he received on account of the purchase of the real estate intended to be sold, was, by reason of the failure, of the title intended to be passed, the money of Reed the debtor, so that at the time of the service of this writ he could have maintained an action therefor. And we are satisfied it was so, and indeed that it was so understood both by Reed and the respondent himself; for although his disclosure is not so explicit as it ought to have been, there is enough stated to convince u:, chat in some of the essential requisites to the passing of a title by a guardian, of his ward’s land, there is an incurable deficiency. We are bound to conclude, that the oath required by the statute to be taken before the sale, was never taken. A certificate of this fact by the magistrate who administered it would be the proper evidence. That not being shown, the omission might be supplied by clear and direct evidence of the fact ; but the trustee merely supposes that he took the oath, and the magistrate who he supposes administered it, is quite as indistinct in his recollection. The fact is so far from being proved, that the contrary may well be presumed.

And so with respect to the bond, about which the trustee also speaks doubtfully. Does he not know whether he gave bond or not ? Where are the sureties ? Does he not remember who befriended him in this particular ? Why not ask them, if there be any, what became of the bond which they signed ? But he has made search in the probate office and no bond can be found. This is quite sufficient to satisfy us that no bond was ever given. 2There being then no bond, and no oath, the sale is void, or at least voidable, so that the parties to it were at liberty to vacate it and consider it as annulled. The deed has never in fact been delivered, but was left as an escrow until the consideration should be fully paid. The time of payment has elapsed, so tnat tie guardian ^las a r%ht to vacate the sale, and the title under the deed being defective, as before stated, the purchaser has the right to refuse to take the deed and to demand the money nack which he has paid ; and we think he had a right of action for it, on showing that the consideration for which he paid the money failed from the negligence and fault of the guardian. The fee of the land still remains in the wards, it not having passed from them by a sale not authorized by the statute.

And this has been so considered by the parties. The purchaser has not paid the whole of the purchase money and taken his deed ; so that he has acquired no title or seisin. The guardian, being an assessor, has taxed himself for the land as though no sale had been made. He holds the money in trust therefore for the purchaser, and is liable to his creditors on this process. He must be charged as trustee. 
      
      
         See 2 Stark. Ev. (5th Amer. ed.) 69, 70; Chitty on Contracts (3d Am ed.) 187, 188.
     
      
       If the statements of a trustee be doubtful in any part, they will be construed against him; for he might have used expressions in which there should have been no doubt. Cleveland v. Clapp, 5 Mass R. 201 ; Sebor v. Armstrong, 4 Mass. R. 206; Harris v. Aiken, 3 Pick. 1. See Kelly v. Bowman, 12 Pick. 387; United States v. Langton, 5 Mason, 282; Gordon v. Coolidge, 1 Sumner, 537.
     
      
       See Revised Stat. c. 71, § 26, 27, 35; c. 72, § 10, 11.
     