Dorsey v. Dorsey's Heirs

delivered the opinion of the court., This suit appears to have grown' out of irregularities practised by those who had the settlement of the estate of Caleb Dorsey, but whether by design, misconception, or the common assent of the parties immediately interested, is difficult to determine-. No part of the real estate of Caleb Dorsey is charged, either by the will or codicil, with the payment of debts, though by the will, alt the persona] property is, and so much of the personal estate remaining, after th® payment of the debts, as should be found not necessary for carrying on certain iron works, is charged with the will legacies. Several specified tracts of land, not including that in dispute, are alone charged with the payment of the le- ' gacies raised by the will, but all the lands devised to Samuel and Edward Dorsey, either by the wilt or codicil, are charged with the codicil legacies. At’the-time of executing the will, the purchase from Lawson had not heen made, from which circumstance, and the provision in the codicil, directing Samuel and Edward Dorsey to pay the debt due to Lawson, it is obvious that Caleb Dorsey did not intend that his executors should apply any part of his personal property to the payment of that debt; and if the executors had, after paying all the debts except Lawson% *425applied the residue of the persona! estate, with the proceeds of sales of the land directed by the will to be sold for that purpose, to the discharge of the legacies, leaving the debt due to Lawson to be paid by Samuel and Edward Dorsey, they would have acted in conformity with the intentions of the testator; which they may have done, though it no where appears. But notwithstanding it seems to have been the iuteution of Caleb Dorsey to make the debt to Lawson a personal charge on Samuel and Edward Dorsey, it was still in law a debt due from him, with winch the whole of his estate was chargeable, and it is now not necessary to inquire whether the personal property was exhausted, and so followed up by Lawson, as would have enabled him to proceed against the real estate of Caleb Dorsey in the haiids of Edward hill Dorsey, the appellant. The decree of the court Of chancery, subjecting a part of that estate to be sold for the payment of one half of Lawson’s debt, is in full force, and cannot in this case be impeached by this court; though it is difficult to account for the executors of Caleb Dorsey having gone into chancery to procure a sale of the lands, in the hands of Edward Hill Doisey, to discharge the debt due to Lawson, without showing what application; they had made of the personal estate of Caleb Dorsey, or of the money for which the lands, charged by the will with the payment of the wifi legacies, and the lands and works bought of Lawson were sold; nor is it less remarkable that .Edward Dorsey, then the guardian of Edward Hill Dorsey„ should have consented to a decree for the sale of the real estate of bis ward, without calling upon the executors to show how they had applied the funds which had come into their hands. The whole transaction wants explanation, but is not so marked as to bear the character of fraud. It 3s stated in the answers in this case, that no part of the money, for which the lands and works bought of Lawson were sold, was applied to the payment of Lawson’s debt, nor Is there any proof that it was so applied. Samuel Dorsey, Who was one of the executors, until the year 1777, when he sited, cannot well be supposed to have acquiesced in any Scheme to cheat his son; and the will and codicil of Caleb Dorsey are referred to by the executors in their bill against Edward Hill Dorsey, as exhibits. With a knowledge of the provisions of both of which instruments the chancellor decreed the sale.

*426Tile decision, therefore, of the question in this case, whether Edward Dorsey bought the land sold by him as trustee, at his own sale, through the instrumentality of Samuel Godman, must be uninfluenced by anything anterior is the decree of 1784, and must be governed by the Other ■ evidence in this cause particularly relating to that transaction. 1

The testimony of Brutus Godman was properly rejected; be had never seen Edward Dorsey write,' and had no knowledge of his hand-writing; proof; therefore, of the contents of the paper spoken of, was clearly inadmissible. But this court think the chancellor erred in not receiving the declaratibns <5f Samuel Godman; that he had purchased the land in question for Edward Dorsey. The declarations of a man respecting his title, made beforé he parts with his estate, ai*e evidence against him, and all claiming under hiin; and the distinction attempted to be taken between the case of a voluntary transfer, and that of a con- , veyance lor a valuable consideration, is not supported. In this case Godman was the purchaser at the sale, received a conveyance from Dorsey, the trustee, and afterwards ¡r'econveyed to him; and it is clear, from- the proof in the cause, that his declarations were made between the tim® of the sale, and the date of his deed to Dorsey; they would have been good against him as admissions respecting his title, and ¿re competent evidence against those claiming under him, who stand in his place, and hold the land subject to any imperfection of title which attended it in his bands. But the declarations of Godman are not the only evidence that he made the purchase for Dorsey. The situation of Godman at the time, the proof that he never took possession of the land, entered upon, or exercised any act of ownership over it; and the circumstance that Taylor’s Forest, which was devised to Samuel and Edward Dorsey, as tenants in common, had been divided before the sale; that Edward Dorsey, who as guardian of Edward Hill Dorsey, was in_ possession at the time of sate of the part sold to Godman, never parted with the possession, but immediately after the sale commenced cutting down the wood that stood upon it For the use of his furnace, and -continued to cut it until his death, or until all was cut down, are very strong and difficult to be resisted. This court are therefore of opinion, upon the evidence before *427the®, tfiat fiftmad 0oilman did buy the land in cjueSlion for Edward Dorsey, the trustee; and that, on the established principle, that a trustee cap never be a purchaser at his own sale, the deeds made in consequence thereof ought to be vacated, (there being no evidence to satisfy the court that Edward Hill Dorsey, the only person interest» cd, ever assented to the purchase,) and ‘hat the decree of ijie chancellor ought to be reversed.

The court are also of opinion, that the appellant isi lia* able and ought to pay to the representatives of Edwan{ Dorsey the amount paid by him to Alexander Lawson, with a commission of five per cent, on the sum for which the land bought by Edward Norwood was sold, with other incidental charges, subject to a deduction for the amount of Ed-Ward Norwoods purchase, and an allowance for interest, as by the account referred to in the bill qs an exhibit. But that he is entitled to recover the rents and profits of the. land struck off to Samuel Godman, which under the facts and circumstances in this case, the court think gre equal to the interest of the sum, for which he is so answerable* and that the one is, and ought to be taken as a jqst and full set off against the other. Upon which principles the court have caused an account to be stated, which exhibits a sun; due to the representatives of Edward Dorsey, amounting' to S8778 80.

was of opinion, that the proceedings ii> chancery in 1784, on (he bill by the executors for the sale pf the ¡and in question, were irregular; that the land was deyised in tai!, and was not liable to the debt for which it was sold. He gave no opinion upon the other questions raised in the case.

Decreed, “that the decree of the court of chancery passed in this cause, be and. the same is reversed.” Decreed also, “that the sales to Samuel Godman of parts of the tract of land called Taylor’s Forest, lying in Baltimore county, be and are hereby annulled and declared to be void, and that the deeds executed in consequence thereof, that is to say, the deed from Edward Dorsey to Samuel Godman, bearing date the 1st of March 1785, and the deed from Samuel Godman to Edward Dorsey for the, said knd, bearing date the 13th of December ip the same *428year, be and they are hereby vacated, and declared tobe null and void.” Decreed also', “that the appellant, Edward Hill Dorsey, bring and pay into the court of chancery, for the use of the representatives of the said Edward Dorsey, the sum of S8,778 80, which sum is ascertained to be due to them by the account hereunto annexed; ami that when the said sum of money shall be so paid and lodged in the court of chancery, and not before, the heirs of Edward Dorsey deliver to the appellant full and peaceable possession of all that part of the land called Taylor’s Forest, ■which is included in the deeds before mentioned.” Decreed also, “that the appellees pay to the appellant the costs which have accrued in this court, and in the court of chancery, and by him expended and paid,”- and, “that the chancellor make and pass all such orders and decrees as shall or may be necessary to, carry this decree into full and complete effect.”

DECREE REVERSED, &C.