Johnston v. Eason
| Citation | 38 N.C. 330,3 Ired.Eq. 330 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 31 December 1844 |
| Parties | CELIA JOHNSTON v. THEOPHILUS EASON et al. |
Every trustee for sale is bound by his office to bring the estate to a sale, under every possible advantage to the cestui que trust; and, when there are several persons concerned, with a fair and impartial attention to the interests of all concerned.
He is bound to use, not only good faith, but also every requisite diligence and prudence, in conducting the sale.
If such trustee is wanting in reasonable diligence in conducting the sale, as if he contract under circumstances, shewing haste and improvidence, or so manage the sale as to advanee the interest of one of the parties, to the injury of another, he will be personally liable to make good to the party, suffering from his misconduct, the amount of his loss.
Nor will equity, in such a case, assist a purchaser, however innocent, in compelling a conveyance of the title.
When a trustee sells at auction, he must make due advertisement, and give due notice to the parties interested. Otherwise the sale will be avoided.
The case of Hunt v. Bass, 2 Dev. Eq. 292, cited and approved.
This cause, having been set for hearing upon the bill, answers and depositions, was transmitted by consent of parties from the court of equity of Edgecomb County, at the Fall Term, 1844, to the Supreme Court.
The following facts appear from the pleadings, and the depositions, and exhibits filed in the cause.
The plaintiff complains, that in the year 1829, she sold to Thomas Low a tract of land, the boundaries of which are set forth in her bill, for the sum of one hundred and fifty dollars, secured by four bonds, each for $37.50, payable at different times; that in order to assure to the plaintiff the price of the land, the said Low executed a deed of trust to the defendant, Theophilus Eason, for the land, with the usual provisions for the sale thereof, upon his failing to pay off and discharge said bonds; that at the time this deed of trust was delivered to the defendant, Theophilus Eason, she delivered to him the said bonds given for the price. She further alleges, that soon thereafter, Thomas Low removed from this State, taking with him all his property, and leaving but the land to satisfy her claim, and that the whole of the said claim is still due, except $15 paid by Low, before he went away. She further charges that in June, 1841, she notified the trustee, Eason, in writing, to sell the land and discharge her debt, or she would proceed against him to compel him; that to this notice she received no answer, and that she had several times before requested him to do so. In August following, she went to Tarborough to see counsel and instit??te proceedings against the said trustee, when she learnt that he had sold the land the preceding Saturday, to the other defendant, his son, for seven dollars. She charges the sale was fraudulently made for the purpose of defrauding her of the land; that but six persons were present, the two defendants, a man by the name of Russ, who had been put upon the land by the trustee as his tenant, a man by the name of Eason, a relation of the defendants, and two other individuals, who were her neighbors, who were that morning invited by the defendant, Theophilus Eason, neither of whom had heard of the sale until so invited; that she resides within two miles of the place, where it is said the sale took place, but had never heard of it, nor was she ever notified by the trustee of his intention to sell--if he had done so, she should have attended and bid the amount of what was due to her, as advised by her counsel. She charges that the defendant, Thomas Eason, holds the land as her trustee, subject to the performance of the trust in the original deed of trust; and prays that the land may be sold, under an order of the court, for the payment of what is due to her, or that the trustee, Theophilus Eason, may be decreed to account with her for the full value of the land.
The defendants in their answers admit the sale of the land, by the plaintiff to Thomas Low, at the price specified, and the execution of the deed of trust for the purposes therein set forth.
The defendant, Theophilus Eason, alleged that three of the notes or bonds given by said Low to the plaintiff, were, by her, transferred to him, to secure a debt, which she owed him, to the amount of $70 or 80 in the year 1832; that he made the sale at the request of the plaintiff, having received from her a written notice so to do, and that he sent her word, by her messenger, that he would do so. He further alleges, that he advertised the sale at three different public places in the county of Edgecomb, where the land lies; to wit, at Daniel's store in Stantonsburg, at Otter creek meeting house, and at the court house in Tarborough; that on the day of sale, to wit, the Saturday before the August term of Edgecomb County Court, according to the advertisement, he exposed the land for sale, on the premises, at one o'clock, when his own son, Thomas, the other defendant, became the highest bidder at seven dollars and sixty cents. He further avers that he took all necessary steps to make known the time of sale; and that the land was not worth what the plaintiff owed him.
The defendant, Thomas Eason, denies all fraud, so far as he was concerned, in the manner of making the sale, and believes it was fairly conducted, and that he is a bona fide purchaser.
A general replication was taken to the answers, and the cause was set for hearing and sent to this court to be heard.
The deposition of John Evans states, that he knows the land in dispute, that it is worth one dollar per acre; that, at the time of the sale, he lived within two miles and a half of the land, and never heard of the sale, and that the plaintiff lived with him at the time.
Bryant Evans knew the land, and the time of sale; lived within one hundred yards of the land for fifteen years, and did so at the time it was sold; heard nothing of the sale, until the evening of the day on which it took place. Some years since, he purchased one half of the land from Theophilus Eason, at the price of $50; took a deed from him, and gave his note or bond for the price. Afterwards learning from the plaintiff that she was interested in the matter, and dissatisfied, he surrendered up to the defendant, Theophilus, the deed he had received from him, and took back his note.
Benjamin Strickland lives about two miles from the land and did not hear of the sale until three or four days after it was made.
William S. Duggan. In the summer of 1841, at the request of Theophilus Eason, he went with him and his son, Thomas, to Stantonsburg, for the purpose of seeing the former put up an advertisement to sell the land. He did see the defendant set up an advertisement for the sale of the land at the store of Daniel and Roundtree in that place. After night, he and Roundtree went out with a candle to see the advertisement, and it was gone; and after that, he and Theophilus Eason left Stantonsburg together. The next day he went with the other defendant, and saw him put up an advertisement for...
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