PRELECTION.

A lot of 20 acres of land, in the city of Louisville, having been directed to be sold, by a decretal order, for paying a debt of about $400, which had devolved on the owners, who were all infants-Bainbridge, as thier volunteer friend, made a private contract with John I. Jacob, by which he was to have the whole lot for $800-but, as a sale of more of the ground than would pay the debt would be illegal and void, they agreed also that Jacob should, ostensibly, buy the whole for the debt-which was accordingly done-and the Commissioner having reported that no person would pay the debt for a less quantity, the Court, ignorant of the facts, confirmed the sale. A Bill filed by the Heirs to set aside the sale was dismissed by the Circuit Judge, and the Court of Appeals having affirmed the decree, the following petition was filed for a re-hearing. But it was overruled SUB SILENTIO.

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The opinion delivered by Judge Hise in this enough for the exigency. Moreover, Baincase, as the judgment of this court, professes bridge proves that Simrall's heirs and adminto recite all the material facts "precisely" as istrator had several valuable slaves and other the record exhibits them. Instead of doing personal estate. The inference from these inso it has omitted essential facts on which we disputable facts, all of which seem to have relied with more confidence than on everything been overlooked by the court, is, that either else. The omitted facts were, we presume, other property would have been sold to pay overlooked, and not considered by the court. the decree, or that Bainbridge and Pope The facts to which we allude are: 1st. Those would have procured the amount of it by loan; conducing to show that, had the land been or that, if a decretal sale had been fairly sold without the intervention of Jacob, one tried, Bainbridge would not have permitted half of it, at the utmost, would have satisfied the whole lot to be sacrificed for $457. That the decree. 2d. Those conducing to show the whole would not have been sold is not that Bainbridge would never have permitted more than about half of the land to be sold under the decree; and 3d. Those showing that money enough to satisfy the decree would have been obtained by loan or by the sale of slaves or other property before Bainbridge would have permitted a greater sacrifice than was made by his agreement with Jacob.

only rendered almost certain by some of the foregoing considerations, but is made quite sure by the fact that Jacob gave $800 for the whole, and consequently would certainly have given $457 for something less than the whole of a lot which sold for $6,000 in 1818, and would now sell for $150,000. But Jacob having agreed with Bainbridge to give $800 The opinion assumes that, if Jacob had not, for the whole, provided it should be formally by his private agreement with Bainbridge, knocked off to him by the commissioner for agreed to pay $800 for the whole lot, it could the amount of the decree, Bainbridge would, not have been sold for more than the amount therefore, neither borrow the money, nor raise of the decree ($457,) and would have been it by the sale of other property, nor bid against thus sold. The only reason assigned, or which Jacob, nor, if he could prevent it, permit any could be imagined for that conclusion, is the other person to bid against him. He testifies fact, that, at the mock sale made by the com- that, after he had made the final arrangement missioner, Jacob bid the amount of the decree with Jacob, he eonsidered the land as sold and for the entire lot, and no person bid that much could not have made or sanctioned any other for less than the whole! With due respect disposition or sale of it. And he also testifies we may say that this fact, when analyzed, that, at the commissioner's ostensible sale, leads to no such conclusion, and that other Dr. Wilson, with whom he had tried to nefacts, not stated and probably not considered gotiate a private sale, inquired of him whether by the court, make it altogether improbable he had effected any such sale, and he replied and unreasonable. If the fact that no person that it was all arranged with Jacob, and that, bid against Jacob could authorize the deduc- thereupon, Wilson left the ground. This fact tion that, had he made no private purchase, probably prevented others, as well as Wilson, still he would have bought the whole lot for from bidding, as it should be presumed to the amount of the decree without any compe- have been known to others, especially all who tition, this court must have erred exceedingly were present at the sale and whom Bainbridge in not tolerating a like inference from the same would, of course, not allow to bid, because facts in Wilson's v. Wilson, &c., 9 B. Monroe. competition would frustrate the arrangement Bainbringe proves that it was with hesitancy with Jacob. This seems to be all morally and reluctance that he finally consented to let certain, but it is neither noticed in the opinion Jacob have the lot for $800-he certainly nor could, we apprehend, have been considwould not have taken less. He and Alexan-ered by the court. Hence, we feel authorized der Pope, both wealthy men, had offered to borrow, on their own credit, money to satisfy the decree; and, scarce as money may have been, there could be no doubt that their endorsement could have procured the loan of

to say that, without facts and against conclusive facts, the opinion assumes that, had not the arrangement been made with Jacob, the whole of the lot would "probably” have been sold to satisfy the decree. And had none of

But the indefensible assumption we have been combatting seems to be the pivot on which the judgment of affirmance turns; consequently we have reason to hope that a reconsideration of the case will plant a very different fulcrum on which no other than an essentially different judgment can rest.

the foregoing considerations appeared, not with his secret, and hard, and unlawful aronly would there be no sufficient ground rangement. for the assumption, but it would be crushed by the tacit admission, by Jacob, of the allegation that, without his interference, half of the lot or less would have satisfied the decree. Under our Code of Practice that allegation should be taken for confessed; and the same consequence would result from the application of the common law principles of equity. An answer must respond to every material allegation explicitly and without evasion. Story's Equity Prac., sec. 852. If the fact charged be within the respondent's personal knowledge, he must answer positively, unless the fact be so ancient as to authorize the presumption that the respondent's memory of it has become dim. Lord Clarendon fixed seven years as a period Then unless, as assumed in the opinion, the beyond which the memory should not be re-purchase by Jacob was, in fact, beneficial quired or presumed to go. But beyond that rather than injurious to the infants, on what time the answer to an allegation once within possible or imaginable ground shall they be the respondent's personal knowledge, though denied the privilege of asserting their beneit need not be positive, must state explicitly ficial right and of obtaining, at last, the enand fully his "belief." Ib. sec. 854-5, and joyment of it.

notes.

The same authority shows that, when the fact alledged had never been within the respondent's knowledge, he must respond fully and directly as to his belief concerning it; and that in any of those aspects of the case, silence is taken to be an admission of the fact charged. See 5 Dana, 80; 7 Ib. 296; 3 B. Monroe, 13; Ib. 185; 4 Ib. 488.

The court virtually concedes, as every enlightened tribunal must concede, that the commissioner's sale was void, and that, consequently, Jacob acquired and held the lot in trust for the original owners, who were infants, and never did anything to estop them to assert their equity or omitted to do anything necessary for maintaining it.

It cannot be on the ground that the proof is insufficient to show that Jacob gave more than the amount of the decree for the lot; because Bainbridge's testimony to that effect is not only unimpeached and uncontradicted, but is intrinsically credible, is fortified by the cotemporaneous letters and accounts found among the papers of Mrs. Simrall, and is made conclusive by the character of Jacob's answer not denying the allegation, but professing nonrecollection of a fact which he could not forget, and had recited to another witness just before this suit was instituted.

In this case it should be presumed that Jacob knew whether, at a fair public sale, unaffected by any private arrangement, less than the entire lot would have satisfied the decree, because he certainly knew whether he himself, would have bid the amount of the decree for a portion of the lot. But, as to that allegation he is dumb-he does not even intimate any opinion or belief. A general denial "of all other allegations," not responded to, would be no response. Story, sec. 852, supra. But Jacob did not make even such denial, he only said that he required proof of the allegations he had noticed, "as he does of all the allegations not herein admitted." The fact that half or less of the lot would have sold for the amount of the decree should consequently be taken as admitted by the answer of Jacob. But the court does not appear to have noticed even this important, and as we think, decisive mat-presuming that it was, and especially as there

ter!

Nor on the ground that the sale, as made, was ever ratified by Simrall's heirs; because they knew nothing about the contract, were incompetent to bind themselves, and neither did nor omitted to do any act whereby ratification or estoppel, express or implied, could be tortured by the court. Nor on the ground that the heirs received and enjoyed the excess of price over the amount of the decree; because it was not appropriated, as Bainbridge desired and advised, to the improvement and preservation of their estate, but was paid to and consumed by their mother in fractions during two years after the date of the sale; and not only is there no proof that the expenditure was to their use, but there is no reason for

is not even an allegation or intimation in the On a full and careful consideration of the record that it was. Besides, the fact, if relied foregoing facts, we cannot think that this on, ought to have been litigated and might court would have said or could now say that have been established, and even then should it was probable that, if Jacob had not made not deprive them of their land sold without the arrangement he did, the whole lot would their knowledge or consent; because if, during have been sold for not more, and perhaps less, infancy, they had consumed the proceeds, they than the amount of the decrec-nor can we did not know it, and a lien on their land for believe that the court could fail to conclude the amount would be the utmost equitable conthat either no part of the lot would have been sequence as against them, unless, since the sold, or that half or less of it would have sat-period of their infancy, there had been some isfied the decree, had not Jacob intervened act of implied ratification, for presuming

which there is no pretence, as the facts show, as far as such a negative is susceptible of being demonstrated, that they did not know, until just before the bringing of this suit, either that Jacob had bought the lot for $800, or even that it had been their property, or sold as such. Jacob's answer would alone be sufficient for their purpose: by not responding to the allegation of ignorance and non-discovery he admits it, as decided in the analagous case of Wilson v. Wilson, &c., 9 B. Monroe. But, in addition to the admission in the pleadings, the facts proved and the intrinsic probabilities resulting ought to be alone conclusive on this point.

Nor, consequently, on the ground of time. There never was a case in which the facts proved more clearly ignorance and non-discovery, and more satisfactory reasons why the discovery, finally made from an accidental clue, was not and could not have been made sooner than it was. Moreover, Jacob will be a gainer, rather than a loser, by the lapse of time, especially if he should be required to surrender only half the spoil, the other half alone making a stupendous speculation. There can be no possible doubt, as this court's opinion seems to admit, that Jacob illegally bought the whole lot for $800, without the authority of the infant owners, and without their consent or knowledge; consequently they, and not he, might complain of time and its consequences.

Nor on the ground that the commissioner was not apprised of the private arrangement between Jacob and Bainbridge as the volunteer friend of the infants. It is altogetner probable that the commissioner knew that such an arrangement had been made, and that Jacob, who could not attain his object unless the commissioner should sell the whole lot for the amount of the decree, communicated to him the fact that he had agreed, in that event, to pay $800. But it is perfectly immaterial whether the commissioner had knowledge of the agreement or not, the sale was equally illegal and void in either aspect of that fact, and can derive no actual validity either from the commissioner's report of his official acts or from the approval of the court, which was a matter of course without any knowledge of the hidden fact which made an apparently legal sale illegal and void.

gality of the whole arrangement, if all had been done with the most pure good faith. A sale of more land than was necessary to satisfy the decree was unauthorized and void; the actual sale was of the whole lot, and for exactly the amount of the decree; had not the private and unauthorized sale of the whole lot for no more than the decree required been made, either none of it, or not more than about half of it, would have been sold. Bainbridge had no authority to bind the infants. Jacob knew this, and, while he was more than willing to get the whole lot for $800, he knew also that the only way to effect the object was to agree secretly to give that sum for the whole, refuse to buy less, and secure a surreptitious title by a formal sale by the commissioner to him for the amount of the decree without competition. His illegal arrangement with Bainbridge secured and effected this-there was no rival bid because it would have been unavailing, for, had any person ventured to bid the amount of the decree for less than the whole lot, Bainbridge, considering himself bound to Jacob, would not have permitted a sale of part; and consequently there must either have been no sale or Jacob must have been the purchaser of the whole lot for the amount of the decree as agreed and effectually pre-arranged. It cannot, we think, be possible for the court, on a review of all the facts, to adhere to the suggestion in the opinion that the arrangement between Bainbridge and Jacob was merely hypothetical, and should not be presumed to

have influenced the official sale under the decree. Had this been so, why was the private contract made? If, without some such arrangethe lot for the amount of the decree, why did ment, Jacob could have bought the whole of he agree to pay nearly double that sum? The answer is obvious and inevitable: the private contract was the sale, and secured, as was insale of the whole lot to Jacob for the amount of tended and arranged, the mere form of official the decree. How then could it ever be rethe contract for the whole lot at $800 had any peated by the court that it is not probable that influence on the sale, and that, if that arrangement had never been made, it is probable that Jacob would have bought the whole for $457, or less. The court did not thus assume or reason in Wilson's heirs v. Wilson, &c., 9 B. Monroe.

Not only was the private sale intended to Nor on the ground that actual fraud is not prevent a public sale of a fraction, but it preestablished. Many circumstances conduce to vented Bainbridge from borrowing the money show such fraud on the part of Jacob; but, not or selling other property, and compelled him needing any such resource, we will not dwell to sell the whole lot and nominally for only on that matter. The undoubted facts show the amount of the decree, without the privilege that the sale, as reported, was not the true of bidding against Jacob. The case is, theresale, and was made illegal and void by the private arrangement which controlled and produced it. This was certainly, at least, a constructive fraud on the infants, on the law, and on the court; and had there been no constructive fraud, a trust resulted from the ille

fore, just such in principle as it would have been, had Jacob bid $800 at the commissioner's sale, and induced a report that he was the highest and only bidder, and became the purchaser of the entire lot for the amount of the decree.

But the court, in its opinion, seems very full and fair competition. And therefore, and properly to repudiate every other ground for because also the commissioner had no interest the affirmance than the assumption that Jacob in the sale, and both he and Hicks (the purwas fairly the highest and only bidder, and chaser) may have understood (as they averred would have bought the entire lot for the amount that they did) that the residue of price given by of the decree or less, had he made no contract the private contract was, after satisfying the with Bainbridge. And if this be untenable, decree, to be applied to the payment of other as it appears clearly to us to be, we cannot see debts exceeding in amount the real value of how a change of the opinion and a reversal the land, and for which it was liable, the court of the decree of the circuit court can be rea- exonerated the commissioner from liability sonably or consistently avoided. That ground and decreed relief in favor of the infant heirs being removed, the case, in its best attitude for against Hicks, and on the ground of trust, as Jacob, is one of implied trust resulting to in- the opinion will undeniably show. After defant heirs from an illegal and void purchase of ciding that a bona fide purchaser from Hicks their land without their knowledge or sanction, was not responsible, the court, in that opinion and which trust the court, on their application, says: "Hicks-whether he be regarded as a must enforce unless they had done something fraudulent purchaser or as vender who violated which renders it inequitable. It is not alleged his trust by selling the land, is, in either case, by Jacob, or intimated by his counsel, that personally liable for the injury which he has those heirs have done any such thing them- done to the complainants. Having received selves, or that any other person, who had and enjoyed, and sold the very property to authority to act for and bind them, has ever which the complainants were entitled, and in done any such thing. Then the case is a plain violation of their rights, he cannot protect himone on general and well established principles self against the consequent liability on the of equity, and which have been recognized by ground, however true, that he supposed the this court in Wilson's heirs v. Wilson, supra. land was liable for the debts which he agreed The opinion delivered in that case settles to pay, and that the arrangement by which it this; and in our judgment both opinions cannot was subject to them, though irregular, was not stand as exponents of the law of the land. unjust or injurious. It was his duty, as the One of them must be wrong. Though the person acquiring the property, to know that facts of the two cases may be, in some slight the facts existed to relieve his conduct from the degree, circumstantially different, yet, in prin-charge of flagrant injustice and injury, and ciple and everything else essential, they run to take care that the price paid by him was so on all fours together, and are substantially applied as to effect the equity of complainants" identical excepting only in two particulars, that is to the payment of other debts for which make this a stronger case for relief which the same land was liable. This proves than that in 9 B. Monroe. In the case pub- that trust alone arising from an illegal conlished there may have been actual fraud. But tract, however honorable, was sufficient. this difference, if existing, would be immaterial, for trust resulting from illegality would To show that, without actual fraud, the case be as effectual for relief without, as it would was one of resulting trust, the court had prebe with the incident of actual fraud; and this viously said in the opinion, "as it is entirely is virtually decided in the reported case, which certain that the land was not purchased for the recognizes the doctrine that the trust resulting sum of $42, reported by the commissioner, from an unauthorized private sale of an entire but for a much larger sum admitted by Hicks tract of land for a much larger sum than that to have been paid by agreement with Joseph for which a sale of as mnch only as should be Wilson and others, it is obvious that, while the necessary to pay an adjudged debt was decreed, commissioner's sale for $41 was used as the and a public sale, pro forma, of the whole tract means of passing the legal title in apparent for the amount decreed, for the purpose of compliance with the equity of the complainants confirming the private sale, was a sufficient and their co-heirs, and apparently in extinground for setting aside the sale and restoring guishment of it, the real purchase was for a the land on equitable terms to the outraged much larger sum, and by private or indiinfant owners. See p. 276-8 and 280. In vidual arrangement. The real subject of that case, although the commissioner may the private, as well as the public sale, was have known that Hicks, the only bidder at his the equity of all the heirs which was perfect, sale, had made a contract with two of the except for the charge of $41"-page 276. adult owners of the land for paying a much The opinion then puts the illustrative question, larger sum than the amount of the decree, and whether, if, instead of the private agreement by which contract it was understood and in-which was made, Hicks had agreed with an tended that he should buy the whole tract opposing bidder to give him the same sum not under the decree and for the decretal debt, yet to bid against him, "he would not hold the it was neither alledged nor should be presumed land in trust for the owner, except to the exthat the commissioner did not allow reasonable tent of the ostensible sum for which it was time for other bids, or in any way, acted un-sold under the decree?" And then adds: fairly at the sale, or did anything to prevent "Hicks being apprised of the equity of the