Renew v. Butler

By the Court. Lumpkin, J., delivering the opinion. In 1836, Timothy Renew executed to James Butler, as trustee for his wife, Mary Butler, the sister of Renew, and her children, a deed to a tract of land in Sumter county. Some time thereafter, Butler and wife removed to Baker county, and Renew acted as agent in the management of the land. Instead of renting it out, he cultivated it himself, accounting to them annually for the rent. In 1843, the land was sold under a small ft. fa. against Butler — the date of the judgment is not shown — the probability is, that it was younger than the deed of trust — how much younger does not appear. One Mims bought in the land for Renew, took a sheriff’s deed, and gave a quit-claim deed to Renew. [957] This bill is filed by Butler and wife against Renew, offering to refund the money paid by him, and praying for a decree for the land and an account for the rents. The jury rendered a decree in conformity with the prayer of the bill, deducting from the rents the purchase-money, and the commissions due Renew as trustee for his management of the property. A motion was made for a new trial and refused by the Court, and it is to reverse this decision that this writ of error is brought. It is insisted by Renew in his answer, that Butler and wife knew that the land was levied on, and that failing to take any steps to prevent the sale, he, as purchaser, should be protected; especially after the lapse of time which has occurred in this case. How it might be between a stranger and the complainants, it is needless to enquire. Mr. Renew does not occupy that position. The mere fact of his buying the land through Mims and taking a deed from Mims is not such a repudiation of the trust as will entitle him to the benefit of the defense resulting from the lapse of time. Besides, he bought with full knowledge of the nature of the estate, and instead of knowing, as he says he did, that the property was liable for the debts of Butler, he knew that the contrary was true. For, by the deed which he himself executed, the land was conveyed to Butler to hold as the separate estate of his wife and children, and was not chargeable with Butler’s debts. He, by his own deed, thus passed the title, and occupying the fiduciary relation which he did to his sister, and her children, it would be most inequitable to allow him to benefit by this purchase. We do not feel called upon, then, to reverse the judgment of the Circuit Judge, which is in accordance with justice and good faith.