Thompson, Ch. J.
delivered the opinion , of the coiirt. The first question which arises, upon the motion to set Aside thé non-, suit granted in this casé is,, whether the testator, Joseph Shetdcm, could legally purchase the property sold under the execution, in his. fay our,, against the plaintiff in this cause. The objection which has teen urged against this right is* that he was a trustee for. the plaintiff, of the, property sold, and, therefore, disqualified from-becoming a purchaser. It would be a sufficient an- fewer to this objection, that it forms no part of, the breaches assigned in the declaration; But it is- not true,in point of. fact,: that the testator stood in the character of trustee to the plaintifE Neither the legal nor equitable title to the - property was transferred to him, It remained, entirely in the plaintiff, and was under his absolute control until the sale, made under the execution, The testator only covenanted that he would sell the property under the execution, to be issued upon the judgment confessed, and apply a sufficiency of the money arising therefrom to the payment of the plaintiff’s honest debts, and account to him for. the, remainder. Under. such circumstances there could be no possible objection to the téstator’s becoming a purchaser, at a public sale made by the sheriff. And, indeed, it may well be questioned* whether the rule applies at all to such public sales, there being no chance of practising any fraud upon the cestuy que trust, by purchasing the property under its real value. ■ (11 Johns. Rep. 455.) But the rule itself is not as broad as was Contended for by the plaintiff’s counsel. In Whichcote v. Lawrence, (3 Ves. jun. 750.,) the Lord Chancellor says, the ruleis laid down, not very correctly, in most cases where you find it. Jt is stated as a proposition, that a trustee cannot buy of the cestuy que trust; certainly, says he, that naked proposition is not correctly true ; the real sense of the proposition is not that the sale is, ipso jure, null, but that he who undertakes to act for another., in any matter, shall not, in the same matter, act for himself. Therefore, a trustee to sell, shall not, gain any ad= vantage by being himself the person to buy. And, in Davison v. Gardner, (cited 1 Cruise, 551.,) Lord Hardwicke said, the court of chancery will not suffer a trustee to purchase the estate of the cestuy que trust, during his. minority, though the transaction be fair and honest; but that the rulé against trustees purchasing did not extend to trusts for persons of full age. And where there is a decree for sale of the cestuy que trust’s estate, and an open bidding before the master, then the Court has permitted the trustee to purchase; for that is >an open auction of the estate. x
The next question is, whether the testator was bound to account to the plaintiff for more than the amount produced by the auction sale. The decision of this point is, necessarily, involved in the answer given to the first question. For, if the testator might legally become a purchaser at the auction, the avails of the sale thus made must be the amount for which the testator was accountable ; and the plaintiff can surely have no reason to- complain of such sale, as it was made according to his own agreement and stipulation. The covenant upon which the present áctión is fóuntiéff provides, • that- the real and personal estate of the plaintiff shoüid be. Sold under the judgment; and if that was a fair, bbháfidb s’alé, Which, indeed, has riot been at all questioned, therecan be no ground, for calling, on the. defendants to account for more than the avails of such. sale. And thé casé shote, that the testator did ripply. such avails to the paymeut of the plaintiffs débtSj ás by- the covenant he was authorized and required to do... There Ms, therefore, been no breach of the covenant, and th# plaintiff was properly nonsuited... The motion1 taust, aéccird¡nglyi,-hé denied. ... - ,
Motion denied.