Bassett v. Shoemaker

[541] The opinion of the court was delivered by Yak Syckel, J. The facts of this ease are concisely' stated by the vice-chancellor, as follows: The bill is filed by one of the beneficiaries under the will of David Shoemaker, of Pedricktown, Salem county, and asks the-court to set aside the sale and conveyance by .Albert Bassett,, executor of the will, of a farm of the testator in said county.. The testator left two children, viz., David Shoemaker and Mrs.. Sarah E. Bassett, wife of the executor, and the children of a. deceased son, Isaac, of whom the complainant is one, and two of whom are infants. By his will testator directed his executor to-sell his real estate, including the said farm, and to divide the proceeds among his children and grandchildren. The executor-advertised the farm in question for sale at Pedricktown, on-November 28th, 1888. It had been the home of testator, and. was occupied at the time of the sale by Mrs. Mary Shoemaker,, the widow of his deceased son Isaac. At the sale the only persons actually bidding were Mrs. Bassett, one of the defendants,, and Mrs. Mary Shoemaker. The former bid the farm up to-$102 per acre, and Mrs. Shoemaker bid $102.50, and it was struck off to her and she signed the conditions of sale, and gave-her note for the required percentage. She did not, however, comply with the terms of the sale, and without, so far as it appears, any demand to enforce such compliance, the executor re-advertised the farm for sale, at the court-house, in Salem, on January 26th, 1889. At this sale Mrs. Bassett employed the defendant Fogg to bid for her, and the property was struck off to him, at the only bid made, of $50 per acre. The deed was made atiddelivered on February 8th, 1889, to Fogg, who, on the same-day, conveyed by deed to Mrs. Bassett, who paid the purchase-money directly to her husband. All of these facts were set fort-ft in the answer to the- bill. The court below set aside the sale, refusing to permit Mrs. Bassett to produce evidence to show that the sale was a fair one- and for the best price that could be obtained. [542] It is insisted on the part of the appellant, that there was error in excluding this evidence; that since the passage of the Married Woman’s act, tenancy by the curtesy initiate being abolished, the husband had no present interest in the real estate of his wife, and that, therefore, she, being a beneficiary under the will, could not be denied the right to purchase in protection of her own interest. The leading case of Davoue v. Fanning, 2 Johns. Ch. 251, presents facts substantially like the case before us. Chancellor Kent held, that other parties interested were entitled to come in and set aside the sale to the wife as a matter of course. He says: “ However innocent the purchase may be in the given case, it is poisonous in its consequences. The cestui que trust is not bound to prove, nor is the court bound to judge, that the trustee has made a bargain advantageous to himself. The fact may be so, and yet the party not have it in his power distinctly and clearly to show it. There may be fraud, as Lord Hardwicke observed, and the party not be able to prove it. It is to guard against this uncertainty and hazard of abuse, and to remove the trustee from temptation, that the rule does and will permit the cestui que trust to come, at his own option, and without showing actual injury, and insist upon having the experiment of another sale. This is a remedy which goes deep and touches the very root of the evil.” This rule has been fully adopted into the law of this state. The incapacity of the trustee to become a purchaser at his own .sale, rests upon the ground of public policy. It is wholly immaterial whether the property brings its full value. Culver v. Culver, 3 Stock. 215; Mulford v. Bowen, 1 Stock. 797. The exclusion of the wife as a purchaser, where the husband sells as a trustee, is not so much for the reason that he may subsequently become entitled to some interest in her lands, as on account of the unity which exists between them in the marriage relation. The case falls clearly within the spirit of the principle which excludes the husband himself. In Romaine v. Hendrickson, 12 C. E. Gr. 162, affirmed 1 Stew. Eq. 275, Vice-Chancellor Van Fleet says: “So jealous is the law of the interest of the cestui que trust, that it will not tolerate [543] the slightest antagonism, on the part of the trustee. The object .-of the rule is to prevent the trustee from using his information and power to the prejudice of the cestui que trust.” ■ In my opinion, therefore, the decree of the court below setting aside the sale should be affirmed. The prayer of the complainants’ bill is, that the said sale be . set aside. The decree below is not only that the sale be set aside, but also, that one of the special masters of the court of chancery shall sell the said farm. In this respect the decree was erroneous, and should be set aside. The property should be re-sold by the executor in pursuance of the directions of the will of the testator. If the wife desires the privilege of becoming a purchaser at the sale, the proper practice will be to apply to the court of chancery for leave to buy, and have the re-sale conducted by and under the supervision of a master to be appointed by that court. If the property shall be struck off to the wife, the executor will •execute a deed to the master, who will convey in due form to the wife. For affirmance — None. For reversal — The Chief-Justice, Depue, Garrison, Mague, Reed, Yan Syckel, Brown, Clement, Cole, Whitaker — 10.