Cadwalader's Appeal

The opinion of the court was delivered, by Agnew, J. — We think the master made a plain mistake of fact in his report on the evidence. He treats the public sale of the 181 acres, part of tract No. 1758, in Lycoming county, as a sale to Colonel Benjamin Chew, of the entire legal title; and thence infers the duty of Heylman, the former purchaser of the trustees 299 at private sale, to pay to Chew the unpaid purchase-money. But it is impossible to close our eyes to the fact that the sale to Colonel Chew of the entire tract of 181 acres was founded in mistake, and was contrary to his duty as a trustee. He was one of the three trustees who had sold this tract to J. W. Heylman by articles dated May 25th 1854, at $5 per acre, amounting to $905; reserving all the minerals and mining privileges. On this contract Heylman had paid $300, June 6th 1854, and had entered into possession and made improvements. It is not material whether Colonel Chew participated actively in the sale to Heylman or not. As a trustee he knew or was bound to know of the sale, and payment on account of it. The petition for the sale of the trust lands in 1856, prayed expressly for a sale of all of the subjects of the trust remaining unsold; and the decree of the court was made accordingly, and Colonel Chew was one of the trustees ordered to make the sale. His being permitted, under the order of the court, to bid at the trustees’ sale, to protect his beneficial interest in the subject of the trust, did not diminish his duty as a trustee to make a fair sale, or eradicate the knowledge to be imputed to him of the former sale of the trustees to Heylman. A trustee, thus permitted to bid at his own sale, must act within the strictest line of his responsibility. His character as a bidder cannot be permitted to derogate from his duty as a trustee. The tract of land sold to Heylman did not fall within the purview of the petition and order of sale. As to it conversion had already-taken place, and the order was not intended to give an authority to resell it. To comprehend it within the unsold lands was an evident mistake, excepting as to the minerals and mining privileges. The claim on Heylman was for purchase-money, and the legal title was held in trust for him. The whole sum of $605 unpaid and interest were available to the trust. What sort of propriety would there be in permitting a trustee to bid in for himself the right to receive that sum belonging to his trust for the sum of $248.87 ? It was a breach of duty to sell the claim on Heylman, and still worse to pay for it less than half of its actual value. It is very evident that the permission to bid to protect his interest in the unsold lands, did not allow him to speculate thus on the trust confided to him. To avoid such' a conclusion against him, we are bound to believe the sale of the entire 181 acres was a mistake, as doubtless it was, by including the tract in the first class of lands wholly unsold, instead of the second class, consisting of the reserved mining rights. The decree of the Court of Nisi Prius must be reversed, and a decree entered for complainants, with costs. Let a decree be drawn up reforming the deed to William L. Marshal], so as to confine its terms to the unsold minerals and mining privileges of the 181 acres 300 sold to Heylman, and confining to the parties claiming title under Colonel Benjamin Chew the sale of the said minerals and mining privileges in the said tract of land; or permitting them to surrender the deed to William L. Marshall, to be cancelled on a return to them of the purchase-money and interest paid by Colonel Chew on the sale to Marshall, costs to be paid by parties defending under said deed to William L. Marshall.