Small v. . Small

PeaRSON, C. J. In the argument before us, the counsel for the Madres ” did not impeach the decree ordering a sale of the land for partition, or draw in question the validity of the deed executed by the Clerk and Master, so far as it had the effect to pass the legal title to William Small; but he put the equity of his clients to have a preference over the other creditors of Small in respect to the fund arising from the sale of the land, on the ground of the fiduciary relation of Small as then- guardian. He filed the petition to have the land sold for partition as their guardian, and in that capacity procured' *20 every order in tlie proceeding to be made, the result of which was, whether upon a preconceived intention on his part to* defraud his wards out of a tract of land that adjoined his own land, or as a mere incident of his subsequent insolvency, is an immaterial question, for so it is, Small, the guardian has procured the legal title of his wards land without paying for it. The question is, could he in conscience rely upon the legal title thus acquired by his own acting and doing, without any agency or concurrence on the part of his wards to deprive them of their land, or was he not bound in equity, when he found he was not able to pay for the land; either to re-convey the land, or to give them a priority in respect to it over his general creditors ? The Constitution, in its provisions in regard to homesteads^ refuses to recognize a vendee as the owner of lands which he has not paid for, as against the vendor, although he may have executed a deed as against the general creditors of the vendee or a subsequent purchaser, with notice of the fact that the land has not been paid for. Our courts acts upon the principle that where the parties are “ at arms length ” and the ■vendor, instead of retaining the title to secure the purchase money, ehoses to make title and trust the vendee for the money, it becomes a mere personal debt, and the vendor having, of his own folly, let go his security, must be content to stand on the same footing with other persons. But our case does not rest upon that doctrine, and is put on a plain equity arising out of the fiduciary character of Small as guardian. He and his wards were not parties acting “ at aims length.” He was the only actor on the stage and the whole proceeding was managed by him; so as against his. wards, although he had acquired the legal title, still he held it subject to their equity of his paying for the land as a condition precedent to his becoming the owner of it. Granting this position, it was contended that the equity of fche Mardres was barred by the fact that Small had held ad *21 verse possession of the land, under the deed of the Clerk and Master, for seven years; the question intended to be presented depended upon whether in counting time it began t the date of the deed, or at the time when the wards respectively became of age. The idea that a guardian could hold adversely to his ward before the ward became of age, was so absurd that this position was abandoned. 3. It is settled in this State, that a deed in trust to secure creditors is not a voluntary conveyance within the meaning of the statute of Elizabeth; but thq/counsel of the appellants did not refer to any case or give any reason in support of the position that a creditor who takes a deed of trust conveying a tract of land, to secure an existing- debt, stands in a better ■condition than the debtor in regard to an equity which has attached to the land in the hands of the debtor. The creditor who takes a deed of trust is not out of pocket one cent, so he ■stands in the shoes of the debtor and takes subject to any •equity binding the land in the hands of the debtor./ This is too plain for discussion, and the facts set out do not raise what woidd have been an interesting question, viz : is one who takes a deed to secure advancements, to be after-wards made subject to an equity of which he had no notice % There is no error. Pee CueiaM. Decree below confirmed.