Murray v. Finster

Headnote

Where the defendant purchased part of a trust estate, with notice of the pendency of a suit against the trustee for a breach of trust, and of an injunction, he was decreed to pay the consideration money, with interest, to the plaintiff, for the use of the cestui que trusts, or to convey in fee the land purchased to and for the same trusts.

The defendant must deny all notice, even though it is not charged, other- ‘ wise he will not be deemed a bona fide purchaser.

Where land was held in trust for G. for life, with power to her to dispose of the same among her children, a son of G. was held a competent witness for the plaintiff, in a suit to recover part of the trust estate sold in violation of the trust.

THE plaintiff Winter was a trustee of certain lands in Cosby’s manor, and other tracts, to and for Patrick Heatley, the owner, who has since released the estates to Temperance Green. A bill was filed, in 1809, against Winter for a breach of trust, and an injunction issued to prevent his selling or disposing of the trust property, or the proceeds thereof ; and, by a subsequent order of the Court, he was superseded in the further execution of the trust, and the plaintiff Murray was appointed, in his stead, a receiver on the said estates, and authorized to use the name of Winter in any suits concerning the same.

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In February, 1810, after Winter had been served with the injunction, and while the suit was in full prosecution; and though, by the deed of trust, Winter was not authorized to sell any part of the said estates, without the previous consent of Nathaniel Pendleton, Robert Murray, and Comfort *Sands, yet, as the bill stated, he did, in 181-2, contract to sell to the defendant 39 acres of land, in lot No. 45, in Cosby’s manor, at 18 dollars per acre. Previous to the contract, and before payment of the purchase money, the defendant was informed, by the agent of the owner, of the pendency of the suit against Winter, for a breach of trust, and of the injunction. Afterwards, in 1813, Murray, the plaintiff, informed the defendant of his being appointed, in the place of Winter, to manage the trust estate, and showed the order for the purpose. The plaintiffs alleged, that the sale by Winter to the defendant ivas for these causes, collusive and void, or, if the same was to be carried into effect, they were entitled to receive the purchase money from the defendant.

The defendant put in a plea and answer. The plea stated, that on the 17th May, 1809, the defendant contracted with Winter to purchase the land ; and that on the 29th July, 1809, Winter being, or pretending to be, seised in fee

of the premises, conveyed the same to the defendant, by deed, with a covenant of warranty, for the consideration of 703 dollars; and the defendant averred, that he paid the whole consideration money to Winter.

The defendant, in his answer, admitted the orders of the Court, and that he had several conversations with the plaintiff Murray, and Henry Green, the agent on the estates, relative to the premises; but which conversations he could not particularly recollect, except that in 1813, Murray informed him of his being appointed to manage the estates instead of Winter, and cautioned him from paying anymore money to Winter, when the defendant told him he had already paid the money to Winter.

The defendant also admitted that an injunction was issued as stated in the bill, but he was advised, that as the same was issued by a master’s order, dated 11th October, 1813, and was not confirmed according to the rules of Court, the same was dissolved, of course.

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*Henry Green, the agent of the owner, who was examined as a witness for the plaintiff, stated, that in the spring or summer of the year 1810, the defendant told him that he had a conversation with Winter about buying the land, but hearing there was a dispute, he had dropped the negotiation. The witness warned him not to pay any money to Winter, and the defendant said he had not paid him, but had lent money. The witness gave the defendant notice of the suit then pending in this Court. Another witness testified, that he heard the defendant say, that he bought the premises in 1809, and paid for them in 1812; having given a bond and mortgage to secure the purchase money.

An exception was taken, on the part of the defendant, to the competency of Henry Green as a witness; the estates being held in trust for his mother, with a power to her to dispose of the same among her children.