Ardis v. Smith

McCay, Judge. 1. Whilst we are not clear that equity would not authorize this lady to follow the effects, by her consent put into this land by her husband, yet we are not able to see how Abbott’s estate can be charged with Smith’s joinder with the husband in misappropriating the proceeds of his wife’s estate. The [105] land was unquestionably the property of Abbott’s estate, and his heirs and creditors had a full right to have the purchase money of it, and they are not to lose their title until they get it. Smith seems to have sold in good faith, took the husband’s notes and gave his bond for titles. That the husband paid a portion of those notes by means and property that was not his, (he was not a trustee of it either) and that Smith used that money and the proceeds of these effects to pay Abbott’s debts, does not by any rule of equity we know of authorize this trustee, the owner of it, to charge Abbott’s estate. If Smith bought from the husband property that belonged not to him, but to the trustee of the wife, he simply got no title. The trustee could have brought trover for the negroes. We do not think a case can be found where equity has undertaken to follow the ■ proceeds of property thus illegally purchased. It is not the case of a breach of trust. The husband was not the trustee. He sold property that did not belong to him; that is all. Can the holder of the legal title, merely because he is a trustee, follow the proceeds of the property. He might have, sued whoever got the negroes, in trover., or he might have sued Smith, but it is reaching out the hand of a chancellor very far to let him follow the price of the property into Abbott’s estate, because Smith used the money he got for it, or took it to pay the debts of the estate. It has been held that the owner of property stolen cannot follow the proceeds into other property in which the thief has invested it, except as an ordinary creditor. Much more is this true when the taking and selling, as was the case here, was a mere tort: Campbell vs. Drake, 4 Iredell E. R., 94. As we have said, here is no breach of trust. The husband was not the trustee, and if he were, we still are unable to see how, by the mutual breach'of trust of Smith and the husband of Mrs. Skelly, the Abbott children are to lose the price agreed to be paid for their land. 2. As to the charge that Skelly agreed to pay more for the land than it was worth, and that there was informality in the sale, we do not see what these parties have got to do with [106] that. Skelly was of sound mind, and might make his own bargains, and if Abbott’s estate finds no fault with the informality, surely nobody else can set it up. Judgment affirmed.